The Relationship between Mediation and Judicial Proceedings in China (original) (raw)
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Introductory essay to the special issue: Mediation in contemporary China: Continuity and change
2015
Introductory essay to a special issue of Journal of Comparative Law by FU Hualing (Faculty of Law, University of Hong Kong) and Michael Palmer (School of Law & the China Institute, SOAS and IALS, University of London). The authors describe the purpose of the special issue to introduce readers to some of the key developments now taking place in mediation as a form of dispute resolution in China, a society in which mediation has long been a central processual and ideological feature of its legal culture.
Journal of Legal Pluralism and Unofficial Law, 2013
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 becoming a ‘precarious ideal’ that lacks precision. Empirical research shows that a new version of mediation, embedded in the ‘rule of law,’ is emerging and mediators report 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 the jurisprudence of responsive law; Part II examines contemporary mediation policy in China echoing many of the aspirations of responsive law and Part III provides an empirical exploration of the challenges of applying responsive ideals in practice.
" Mediate First " : The Revival of Mediation in Labour Dispute Resolution in China
The past few years have witnessed the revival of mediation as a chief method of labour dispute settlement in China. While the central government’s campaign has reinvigorated the use of mediation in order to control social conflicts and maintain stability, its expansion and extensive deployment have also been driven by local authorities, as mediation can better serve their policy priorities and bureaucratic interests. Not only does the extension of mediation provide local bureaucratic agencies with flexibility and discretionary power to resolve conflicts without having to comply with legal minimums, it also legitimizes the courts’ “non-legalistic approach” to settling dispute cases. The extensive employment of mediation by local authorities has chipped away at the role of legal procedures in settling labour disputes. The revival of mediation embodies a tension between the rule of law the government has promoted since the reform and the extrajudicial methods it needs for controlling conflicts.
Grand Mediation in China: Mechanism and Application
Grand mediation (GM) is a new concept raised currently in China that relies on mediation but links various social and governmental resources together aiming at resolving conflict more effectively. This paper examines the mechanism and application of GM. The quadripartite interaction reflects a low degree of judicial power in contrast to a high degree of the rule of politics.
Hong Kong Law Journal
This article is a case study of mediation in a basic level court in an underdeveloped southwest ethnic minority county. It details the whole process of court mediation when solving disputes through “thick description”. It argues that court mediation is feasible there because both the judge and the disputant are embedded in the local social structure and that court mediation is good practice for solving the dispute. Court mediation can maximise the benefits for all involved individuals and also provide an acceptable dispute resolution, although it may differ from the ideal model which is more suitable for developed urban areas of China.
Reforming the People’s Mediation System in Urban China
Hong Kong Law Journal, 2005
After its "revitalisation" after the Cultural Revolution, China's people's mediation system declined throughout the 1990s. However, a "second revitalisation" that began in 2002 has quite successfully reversed this trend. This article discusses this reform effort in four parts. Part I explores the reasons for the 1990s decline of people's mediation in urban China and the government's interest in strengthening this institution. Policy reforms at the national level - particularly the issuance of the "Three Documents" - are analysed in Part II. Part III describes the basic unit in the urban people's mediation web, the community PMC, and then details the web's "vertical expansion" and "horizontal expansion," including new forms of cooperation with the police and courts. The paper concludes with Part IV, which discusses the new "legalised" nature of urban people's mediation and evaluates the significance of the reforms described above.
Focusing on the dispute resolution mechanisms for defusing various social disturbances and collective incidents during the reform period and particularly in the last decade, this paper argues that the Chinese government has adopted pragmatic and problem- solving approaches to designing and developing various mechanisms of dispute resolution in response to the complicated and challenging situation of steadily increasing and intensifying social contention. There is evidence that neither litigation nor non-litigation means of dispute resolution can effectively resolve social conflicts. In light of this difficulty, various experiments have been put in place at the local level to meet social needs and manage social crises while balancing state power and social self-governance. We call such experiments “diversified mechanisms of dispute resolution (DMDR).” This study sheds light on the shift from an emphasis on the earlier non-litigation approach to a more diversified way of addressing collective disputes in contemporary China.
Mediating state-society disputes in China Outsourced lawyers and their selective responses
Where popular contention in China is concerned, third parties are not merely supporters of protesters but also allies of the state. Through quantitative and qualitative methods, this article uses an actor-centred perspective to explore the dual role of Chinese lawyers in state dispute resolution projects. When providing legal counselling services to the public, lawyers adopt selective strategies and channel non-political cases into legal channels while keeping political cases within the political arena. When handling social disputes for the government, however, they apply professional diagnoses and legal persuasion, and intervene through mediation and negotiation. Three factors constrain the effectiveness of Chinese lawyers during dispute resolution. These are the limited access to cases, the dilemmas inherent in acting simultaneously both as a third party and as a state agent, and the restricted influence of lawyers over the final resolution of social disputes. This article argues that the selective responses of Chinese lawyers during legal counselling and strategic defence of state power in dispute resolution make them a governance tool for stability maintenance. Their participation contributes more to legal repression than to legal development in contemporary China.