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The Relationship between Mediation and Judicial Proceedings in China

Published online by Cambridge University Press:  16 April 2015

Vicki Waye  and
Ping Xiong
Vicki Waye
Affiliation:
University of South Australia
Ping Xiong
Affiliation:
University of South Australia
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Abstract

After a period of decline, judicial mediation has been recently revived in China. The revival has occurred as a result of a combination of political and juridical forces. China's courts have been struggling to meet demand for access to justice and the revival of judicial mediation is part of a broader policy to promote mediation as a mainstream dispute resolution mechanism. At the same time, the revival of judicial mediation also reflects the disaffection of China's political elite with an emphasis upon adversarial, western style legal process. China's establishment appears to be seeking a more responsive multi-door style of court system. This article traces recent developments in China which track the rise, fall and rise of judicial mediation.

Keywords

Chinajudicial mediation
Type
Research Article
Information
Asian Journal of Comparative Law , Volume 6 , 2011 , pp. 1 - 34
Copyright
Copyright © Faculty of Law, National University of Singapore 2011

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121 Law of Civil Procedure of the People's Republic of China, art. 86. However note that Jialiang, How are Laws Practiced? A Sociological Analysis Based on a Judicial Case in China, supra note 76 at 54, reports that, applying simplified procedures, over 90% of civil cases are presided over by a single judge.

122 Law of Civil Procedure of the People's Republic of China, art. 87.

123 Law of Civil Procedure of the People's Republic of China, art. 86.

124 Law of Civil Procedure of the People's Republic of China, art. 88.

125 Ibid.

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135 Promulgated by the Supreme People's Court on 14 July 1992.

136 This interpretation is reinforced by art. 8, Supreme People's Court, Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialism and a Harmonious Society (7 March 2007) discussed further below. Article 8 provides that the People's Court should ensure that the mediation agreement reached by the parties is not contrary to national and public interests, the legitimate rights and interests of those involved in the case, that there is no violation of law or administrative regulation, nor anything contrary to good custom and morality.

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145 Uniform Mediation Act, §4 – 8.

146 Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters, art. 7.

147 See discussion in Alexander, International and Comparative Mediation: Legal Perspectives, supra note 129 at 246-247.

148 See, for example, Several Provisions on the Work of People's Mediation, art. 29, which provides that in principle people's mediations are conducted in public unless the mediation raises privacy concerns or involves the disclosure of business secrets or the parties object.

149 Law of Civil Procedure of the People's Republic of China, art. 87.

150 Barkai, John, “What's a Cross-Cultural Mediator to do-A Low-Context Solution for a High-Context Problem” (2008) 10 Cardozo J. Conflict Resol. 43 at 55Google Scholar.

151 Supreme People's Court, Several Opinions of the Supreme People ‘s Court on Further Displaying the Positive Roles of Litigation Mediation in the Building of a Socialist (2007), art. 12 and Supreme People's Court, Some Provisions of the Supreme People's Court on Evidence in Civil Procedures (2001), art. 67.

152 Incidentally the same issues arise under art. 51, Arbitration Law of the People's Republic of China, which authorises the arbitrator/arbitral panel to engage in conciliation during the course of the arbitration. See further art. 40.7, China International Economic and Trade Arbitration Commission (CIETAC) Arbitration Rules.

153 The Warren, Hon. Marilyn, “ADR and a different approach to litigation”, Supreme Court of Victoria (18 March 2009) at 5, online: <http://www.supremecourt.vic.gov.au/wps/wcm/connect/justlib/supreme+court/home/library/supreme+-+speech+-+adr+and+a+different+approach+to+litigation+%28pdf%29>Google Scholar.

154 For example, Australian Institute of Judicial Administration, Guide to Judicial Conduct, 2nd ed (2007), Rule 4.8Google ScholarPubMed; Court of Queen's Bench, Alberta, Guidelines for Judicial Dispute Resolution, art. 3(f); Quebec, Code Civil Procedure, RSQ C-25, art. 508.1.

155 Peerenboom & He, Dispute Resolution in China: Patterns, Causes and Prognosis, supra note 25; Fu, Hualing and Cullen, Richard, “From Mediatory to Adjudicatory Justice: The Limits of Civil Justice Reform in China” (November 25, 2008) at chart 5, available at SSRN: <http://ssrn.com/abstract=1306800>Google Scholar.

156 Peerenboom, More Law, Less Courts: Legalized Governance Judicialization and Dejudicialization in China, supra note 113 at 16; Fu, Hualing and Cullen, Richard, From Mediatory to Adjudicatory Justice: The Limits of Civil Justice Reform in China, supra note 155.

157 Ibid. Fu, Hualing and Cullen, Richard, From Mediatory to Adjudicatory Justice: The Limits of Civil Justice Reform in China, supra note 155, at 56.

158 Supreme People's Court, The People's Courts' Five-Year Reform Plan (20 October 1999)Google Scholar; Supreme People's Court, The Second Five-Year Reform Outlines for the People's Court (26 October 2005)Google Scholar; discussed in Liebman, China's Courts: Restricted Reform, supra note 62 at 624¬-625.

159 Jialiang, How are Laws Practiced? A Sociological Analysis Based on a Judicial Case in China, supra note 76 at 57.

160 Ibid at 55-57.

161 Promulgated by the Supreme People's Court on 7 March 2007.

162 Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialism and a Harmonious Society, art. 5.

163 For example, Boulle, Mediation: Principles Process Practice, supra note 134 at 262-268; Spencer, David & Brogan, Michael C., Mediation Law and Practice (Cambridge University Press, 2006) at 109–119Google Scholar.

164 For an outline of some of the difficulties that arise when dealing with complex disputes involving multiple parties, see Green, Eric D., “Mega-Disputes and Class Actions” in Golann, Dwight, ed., Mediating Legal Disputes: Effective Strategies for Neutrals and Advocates (American Bar Association, 2009) 325Google Scholar. However, the author notes that many class actions are successfully mediated and argues that adopting a less facilitative approach to mediation and involving the trial judge as a conciliator can lead to beneficial outcomes. See further Greenberg, Myron S. & Blazina, Megan A. “What Mediators Need to Know about Class Actions: A Basic Primer” (2004) 27 Hamline L. Rev. 191 at 220Google Scholar.

165 For example, Luban, David, “Settlements and the Erosion of the Public Realm” (1994) 83 Geo. L.J. 2619Google Scholar. However for a contrary argument see Menkel-Meadow, Carrie, “Whose Dispute is it Anyway: A Philosophical and Democratic Defense of Settlement (in some Cases)” (1994) 83 Geo. LJ. 2663Google Scholar.

166 Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialism and a Harmonious Society, art. 4.

167 Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialism and a Harmonious Society, art. 12.

168 Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialism and a Harmonious Society, art. 24.

169 Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialism and a Harmonious Society, art. 20.

170 Sourdin, Tania, “Mediation in the Supreme and County Courts of Victoria”, report prepared for the Department of Justice, Victoria, Australia, April 2009 at 64 – 65, available at SSRN: <http://ssrn.com/abstract=1395550>Google Scholar; Supreme Court of Western Australia, Annual Review 2007–2008 at 22–23Google ScholarPubMed.

171 Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialism and a Harmonious Society, art. 10.

173 Ibid.

173 Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialism and a Harmonious Society, art. 11.

174 Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialism and a Harmonious Society, arts. 7 & 8.

175 Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialism and a Harmonious Society, art. 14.

176 Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialism and a Harmonious Society, art. 12.

177 Third Five-Year Reform Plan for the People's Courts (2009-2013) (2009) cl. 26.

178 Ray, Larry & Clare, Anne L., “The Multi-door Courthouse Idea: Building the Courthouse of the Future. + .Today” (1985-1986) 1 Ohio St. J. Disp. Resol. 7Google Scholar; Sander, Frank EA, “Varieties of Dispute Processing” (1976) 70 F.R.D. 111Google Scholar.

179 Fu, Hualing and Cullen, Richard, From Mediatory to Adjudicatory Justice: The Limits of Civil Justice Reform in China, supra note 155 at 63-64.

180 Several Opinions Concerning the Establishment and Improvement of Dispute Resolution Mechanism that Connect Litigation and Non-Litigation Proceedings, art. 7.

181 Several Opinions Concerning the Establishment and Improvement of Dispute Resolution Mechanism that Connect Litigation and Non-Litigation Proceedings, art. 10.

182 Ibid.

183 Yeoh, Friven, “Enforcement of Dispute Outcomes” in Moser, Michael J., ed., Managing disputes in today's China: duelling with dragons (Kluwer Law International, 2007) at 260Google Scholar.

184 Several Opinions Concerning the Establishment and Improvement of Dispute Resolution Mechanism that Connect Litigation and Non-Litigation Proceedings, art. 21.

185 Ibid at art. 24.

186 Ibid.

187 Several Opinions Concerning the Establishment and Improvement of Dispute Resolution Mechanism that Connect Litigation and Non-Litigation Proceedings, art. 12.

188 Several Opinions Concerning the Establishment and Improvement of Dispute Resolution Mechanism that Connect Litigation and Non-Litigation Proceedings, art. 30.

189 American Arbitration Association, American Bar Association and Association for Conflict Resolution, Model Standards of Conduct for Mediators (September 2005).

190 Hong Kong, Department of Justice, Report of the Working Group on Mediation (8 February 2010) at Annex 7.

191 Several Opinions Concerning the Establishment and Improvement of Dispute Resolution Mechanism that Connect Litigation and Non-Litigation Proceedings, arts. 14 & 15.

192 Ibid, art. 15.

193 Ibid, art. 16.

194 Ibid, art. 26.

195 Ibid, art. 27.

196 Ibid, art. 28.

197 Ibid, art. 29.

198 Ibid, art. 19.

199 Ibid, art. 18.

200 Brunet, Judicial Mediation and Signaling, supra note 139 at 232.

201 Ibid at 252.

202 Resnik, Judith, “Managerial Judges” (1982) 96 Harv. Law Rev. 374CrossRefGoogle Scholar; Galanter, ‘A Settlement Judge, Not a Trial Judge:’ Judicial Mediation in the United States, supra note 141; Menkel-Meadow, For and Against Settlement: Uses and Abuses of the Mandatory Settlement Conference, supra note 139 at 485; Resnik, Judith, “Failing Faith: Adjudicatory Procedure in Decline” (1986) 53 U. Chi. L. Rev. 494CrossRefGoogle Scholar.

203 Judicial Conference of the United States, Committee on Codes of Conduct, Advisory Opinion No. 95 (2009).

204 Pakulski, J., “Social Inequality and Conflict Beyond Class: Developments in Contemporary China” (2010) 6 Asian Social Science 35 at 35, 40Google Scholar.

205 See Communiqué of the Sixth Plenum of the 16th CPC Central Committee (11 October 2006), available online: <http://www.newsgd.com/news/chinakeyword/6thsessionof16thcpc/200610130017.htm>.

206 See Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialist Harmonious Society, art. 1.

207 See Potter, P. B., “The Chinese Legal System: Continuing Commitment to the Primacy of State Power” (1999) China Quarterly 673 at 680–683Google Scholar. The author is of the view that China uses law as an instrument of social control and law remains politically contingent.

208 Raulli, D., “Why is the Rule of Law in China Unsuccessful?” (2009) 3 Insights (Hamilton College) 75 at 84–86, available online: <http://www.hamilton.edu/levitt/insights-undergraduate-journal/insights-spring-2009>Google Scholar. See supra, section III(A); sources: Liebman, China's Courts: Restricted Reform, supra note 62 at 620; Supreme People's Court, Work Report (10 March 2009).

209 Xie, Z., “Petition and Judicial Integrity” (2009) 2 Journal of Politics and Law 24CrossRefGoogle Scholar.

210 Tanner, Murray S., Chinese Government Responses to Rising Social Unrest, supra note 63; Lum, Thomas, Social Unrest in China, supra note 63.

211 Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialist Harmonious Society, art. 2. This article provides that mediation (in litigation) has been rooted in Chinese traditional culture and has been proved by judicial practice to be an efficient means to resolve disputes.

212 See Sternlight, J. R., “Is Alternative Dispute Resolution Consistent with the Rule of Law-Lessons from Abroad” (2006) 56 DePaul L. Rev. 569 at 591Google Scholar: the author is of the view that the goal of ADR in a society of China which are more communitarian focuses more on preserving or creating a harmonious social relationship, while creating harmonious society is not part of the traditional western definition of ‘the rule of law’ and ‘access to justice’.

213 See Wang, Senbo, “The Separation of Judge's Mediational and Inquisitory role―the Third Approach to the Reconstruction of Mediation System [J]” (2009) 6 Public Administration & LawGoogle Scholar.

214 Several Opinions Concerning the Establishment and Improvememt of Dispute Resolution Mechanism that Connect Litigation and Non-Litigation Proceedings, arts. 1, 15, 20 & 22.