Court Mediation in China, Past and Present

Abstract

What is called “mediation” in China today includes a wide variety of actions, ranging from the purely facilitative to the substantially adjudicative and yet still mediatory (those that are mainly adjudicatory and imposed regardless of the will of the litigants should be excluded). They show that contemporary Chinese court mediation as it has been practiced is very different both from Qing court practices and from current alternative dispute resolution (ADR) in the West. Qing courts generally did not mediate, despite the Confucian ideal of resolving disputes through (societal) mediation and despite the official ritualistic requirement that court actions always be voluntarily accepted by litigants. Contemporary Chinese courts, however, routinely mediate, a legacy not from the Qing but from the Maoist period. If mediation fails, arbitration or adjudication—under the same judge—will almost always follow. That makes the process very different also from current ADR in the West, where mediation is generally separate and distinct from court trials and mediators do not operate with nearly as much discretionary power as Chinese judges. For better or for worse, the contemporary Chinese approach to court mediation is predicated on an implicit epistemological method that contrasts sharply with the formalist ideal (which characterizes modern Western Continental law): instead of starting from universal premises about rights and then applying those by legal (deductive) logic to all fact situations, Chinese judges start instead from the nature of the fact situation and then decide to mediate or arbitrate or else adjudicate, as appropriate. In placing the concrete and the practical ahead of the abstract, they still share a good deal in legal reasoning with judges of the Qing.