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Abstract
Community mediation in China has a long history and finds its roots in both cultural (traditional Confucian ideologies) and functional (the avoidance of social conflicts) aims. Recently, however, owing to changes in societal values occurring alongside China's economic open-door policy, traditional values are losing their prominent role in the mediation process. Meanwhile, reforms are being carried out to provide greater structure to community mediation in China. The combination of these changes has resulted in struggles to redefine the place and role of mediation in China. While the flexibility and responsiveness of mediation allows a contextualized and ‘learning mode of legal intervention’, it is at risk of being a ‘precarious ideal’ that lacks precision. Nevertheless, empirical research shows that a new version of mediation which is embedded in the ‘rule of law’ is emerging and that responses from mediators in relation to this new mode of mediation are positive, reporting enhancement in both objectivity and legitimacy.
This paper seeks to explore the unique challenges and opportunities of achieving responsive mediation in action in China. Drawing on a set of interviews and a case study conducted in three cities in China, the paper aims to contribute to the legal pluralism discourse by examining how mediation in China, traditionally an ‘unofficial’ form of legal practice is now becoming ‘official’ through state sanction and how mediators interact with traditional Confucian normative orders in the context of changing social priorities and values. This paper is divided into three parts: Part I discusses briefly the jurisprudence of responsive law; Part II examines contemporary mediation policy in China which echoes in many respects the goals and challenges of responsive law and Part III provides an empirical exploration of the challenges of applying responsive law ideals in practice.
Acknowledgements
The author thanks the University of Hong Kong Research Committee and the Research Grants Council (ECS HKU 757412H) for its kind support of this project. The author also thanks the many mediators and legal practitioners in China who participated in the research. Special thanks also to Professor Melanie G. Wiber for her very helpful comments and Cynthianna Yau for her excellent research assistance.
Notes
1See Zhongguo Falu Nianjian (Citation1983–1995); statistics derived from the Chinese Legal Yearbook on the number of cases handled by mediation as compared with the number handled by litigation indicate a significant decline in the overall percentage use of mediation over the past 30 years. This sharp decline has existed alongside an increase in the total overall number of mediated cases in recent years.
2See Palmer (Citation1987, 223).
3See Zhongguo Falu Nianjian She (Citation2002, 777).
4See Zhongguo Falu Nianjian She (Citation2004, 654).
5See Zhongguo Falu Nianjian She (Citation2004, 674).
6See Zhongguo Falu Nianjian She (Citation2006, 486).
7See Zhongguo Falu Nianjian She (Citation2007, 593).
8See Zhongguo Falu Nianjian She (Citation2007, 616).
1. Horwitz (Citation1979) discussed legal formalism's view of law as a body of formal legal rules and that mastering its internal language is the main business of the lawyer and the legal intellect. In particular, Christopher Columbus Langdell, former Dean of Harvard Law School, advocated a scientific, detached approach to law. He treated law as an academic and scientific field with a set of rules for judges to apply mechanically to the issues at hand.
2. ‘These materials proceed upon the conviction that this is a fallacy – “the fallacy of the static pie”. The fact – the entirely objective fact – seems to be that the pie – that is, the total of actually and potentially available satisfactions of human wants – is not static but dynamic. How to make the pie larger, not how to divide the existing pie, is the crux of the long-range and primarily significant problem.’
3. Ibid.
4. Chapter 8, 1991 Civil Procedure Law of the People's Republic of China.
5. See http://www.lawinfochina.com/display.aspx?lib=law&id=6459 (accessed 8 April 2013).
6. See http://en.chinacourt.org/public/detail.php?id=2694 (accessed 8 April 2013).
7. See World Intellectual Property Organization (WIPO), Civil Procedure Law (1991). Available at http://www.wipo.int/wipolex/en/details.jsp?id=850 (accessed 17 March 2013).
8. See WIPO, Civil Procedure Law (2007). Available at http://www.wipo.int/wipolex/en/details.jsp?id=6033 (accessed 17 March 2013).
9. An initial crosscheck of the two versions (1991 and 2007) indicates no apparent difference in the law.
10. Xinhua, ‘China amends civil procedure law following third reading’ (31 August 2012). Available at http://news.xinhuanet.com/english/china/2012-08/31/c_131820062.htm (accessed 17 March 2013).
11. See the Chinese Government Official Portal, quoting from Xinhua (31 August 2012). Available at http://english.gov.cn/2012-08/31/content_2214483.htm (accessed 17 March 2013). For the Chinese version of the amendments, see http://www.gov.cn/flfg/2012-09/01/content_2214662.htm (accessed 17 March 2013).
12. For changes in these areas of the Civil Procedure Law, see http://www.bjreview.com.cn/nation/txt/2011-11/28/content_408376.htm (accessed 17 March 2013).
13. See ADR Resources, ‘China enacts People's Mediation Law’ (29 August 2010). Available at http://adrresources.com/adr-news/747/china-enacts-peoples-mediation-law (accessed 17 March 2013).
14. See ADR Resources, ‘China enacts People's Mediation Law’ (29 August 2010). Available at http://adrresources.com/adr-news/747/china-enacts-peoples-mediation-law (accessed 17 March 2013).
15. See ADR Resources, ‘China enacts People's Mediation Law’ (29 August 2010). Available at http://adrresources.com/adr-news/747/china-enacts-peoples-mediation-law (accessed 17 March 2013).
16. See ADR Resources, ‘China enacts People's Mediation Law’ (29 August 2010). Available at http://adrresources.com/adr-news/747/china-enacts-peoples-mediation-law (accessed 17 March 2013).
17. According to the author's interviews, of the 8000 people's mediation processes in sample District A of Shanghai, only 5% led to a formal agreement.
18. See also: Provisions of the Supreme People's Court on Issues Concerning the Process of Judicial Confirmation of People's Mediation Agreements Fa Shi [2011] No. 5.
19. Article 111, Constitution of People's Republic of China.
20. Article 8, the People's Mediation Law.
21. See NPC of the People's Republic of China, ‘Chinese legislature passes People's Mediation Law’ (30 August 2010). Available at http://www.npc.gov.cn/englishnpc/news/Legislation/2010-08/30/content_1593770.htm (accessed 29 July 2012).
22. Article 8, the People's Mediation Law.
23. Article 9, the People's Mediation Law.
24. Article 13, the People's Mediation Law.
25. Article 5, the People's Mediation Law.
26. This happens frequently with collective disputes relating to work enterprise units, where residents are forced out of their homes. Residents prefer to the seek help from JAs appointed by the Government. JAs generally possess more legal knowledge, experience and mediation skills than RC members. The parties also generally believe that JAs are more impartial when solving local disputes. Nevertheless some have voiced concerns that the overzealous involvement of JAs.
27. Article 28, the People's Mediation Law.
28. Article 31, the People's Mediation Law.
29. Article 30, the People's Mediation Law.
30. Article 33, the People's Mediation Law.
31. Article 23, the People's Mediation Law.
32. Article 26, the People's Mediation Law.
33. See: CPC Encyclopedia, ‘Harmonious Society’. Available at http://www.cpcchina.org/2010-09/16/content_13918117.htm (accessed 9 September 2012).
34. People's Daily Online, ‘Building harmonious society crucial for China's progress: Hu’ (June 2005). Available at http://english.people.com.cn/200506/27/eng20050627_192495.html (accessed 9 September 2012).
35. International Department of Central Committee of CPC, ‘Resolution on harmonious society’ (10 October 2006). Available at http://www.idcpc.org.cn/english/events/061019.htm (accessed 9 September 2012).
36. Ibid. The implementation of the ‘harmonious society’ doctrine can be demonstrated by China's regulatory shift from economic matters to social issues. Chairman Wu Bangguo of the NPC specifically called for a need to enact laws on social programs to provide a solid legal foundation for a harmonious society. According to the Chinese Academy of Social Sciences’ researcher in law, Li Lin, after the 10th NPC took office, new legislations on social issues have increased to 20% at the NPC level and up to 40% at the provincial and lower levels, compared to only 2 to 6% prior to the introduction of the policy. For further, see People's Daily Online, ‘Towards harmonious society through rule of law’ (10 March 2008). Available at http://english.people.com.cn/90001/90776/6369630.html (accessed 9 September 2012).
37. The document is available at http://www.lawinfochina.com/display.aspx?lib=law&id=5930&EncodingName=big5 (accessed 9 September 2012).
38. China Daily Online, ‘Mediation can help settle rising disputes’ (20 June 2010). Available at http://www.chinadaily.com.cn/china/2010-06/29/content_10031522.htm (accessed 9 September 2012).
39. China Daily Online, ‘Mediation can help settle rising disputes’ (20 June 2010). Available at http://www.chinadaily.com.cn/china/2010-06/29/content_10031522.htm (accessed 9 September 2012).
40. The interviews took the form of a 10-part open-ended questionnaire administered by the author with 47 Chinese judicial, mediation and legal officials in the summer of 1997 in Changsha, Beijing and Shanghai.
41. The empirical methodology largely drew on interviews, case studies and existing statistical data.
42. It seems that such suicide prevention figures are known through the number of individuals who reach out to the PMCs with suicidal thoughts, but do not act such thoughts. It must be noted that the accuracy of total prevention figures is limited by the time frame in which such data are collected.