“It is better to die of starvation than to become a thief; it is better to be vexed to death than to bring a lawsuit.”[1]

 

“It is better to keep a friend than to win a victory.”[2]

INTRODUCTION

For more than two thousand years China has used mediation as its primary form of dispute resolution.[3] Only recently has the practice and study of mediation become more popular in the United States.[4] China has long recognized the sociological and administrative advantages of mediation and has found it can resolve disputes in less time and for less money than litigation.[5] “The Chinese legal system has been one of the world’s most committed institutions in the use of mediation to resolve disputes and a leader in developing ways to maximize its benefits and effectiveness.”[6] For guidance in developing its own mediation system, America has looked to China, a nation that operates the largest and most extensive mediation program[7] in the world.[8]

Another reason China’s mediation program has attracted attention from abroad is due to its ever-growing international economic ties.[9] As international business between China and the United States has grown, so have the number of disputes between the parties involved in these transactions.[10] How China handles these disputes continues to draw the attention of its international business partners.[11]

Whereas the traditional American legal system lends strength and support to mediation through the extensive codification of rights and laws, China does not follow such a formal framework.[12] Instead, China prefers to settle disputes through informal mediation.[13] Even where cases are brought to court, Chinese judges often encourage, or in some cases require, mediation between the parties rather than adjudication.[14] Acting as mediators, these judges have been known to be biased, particularly against outsiders.[15] Without a neutral party, or a comprehensive legal code that is enforced, non-local and foreign outsiders are subject to the potential bias of the judicial mediator.[16] Even where the presiding judicial mediator is neutral or the mediation is conducted by an impartial third party, the absence of a coherent and accessible code system poses numerous potential problems as mediation is always conducted in the shadow of the law.

China’s mediation system would improve in overall fairness and effectiveness, if it developed a more just and predictable legal system. This system should be one in which its citizens and foreign businesses could confidently pursue enforcement of their rights under various Chinese laws, international norms, and international treaties. This paper will examine: (1) the roots of China’s mediation program, including discussions about the strong Confucian, Maoist, and legal influences; (2) China’s modern mediation systems; (3) weaknesses of the current mediation system; (4) the benefits for mediation through the development of China’s legal system; and (5) possible methods to aid the development of China’s judicial system.

 

I.                ROOTS OF CHINA’S MEDIATION PROGRAM

 

                  Examination of China’s legal system reveals that mediation is primarily based on a combination of cultural values and the historical evolution[17] of three socio-political factors: 1) Confucian philosophy, 2) Maoist principles, and 3) a loosely knit legal system.[18]

 

A.              Confucian Philosophy

The cultural roots of China’s mediation program are critical to understanding the wide-spread use and strong government support for this non-judicial system of dispute settlement.[19] China’s preference for extra-judicial mediation[20] is rooted in two ancient Confucian principles:[21] 1) li, the preservation of natural harmony, and 2) jang, compromise or yielding to settle disputes.[22]

These principles impose a moral duty upon citizens “to preserve harmony through one's behavior, guided by the rules of polite conduct”[23] and the “spirit of self-criticism.”[24] Unlike the United States and other western nations who tend to favor litigation as a means to protect rights and pursue justice,[25] Chinese culture does not consider compromise or humility in dispute resolution as undesirable or as a sign of weakness.[26] Rather, the Confucian culture prefers mutual compromise among conflicting parties to maintain natural harmony, li.[27] Citizens are encouraged to appeal to their families and communities because the Chinese culture believes that “each person’s identity is intimately and essentially defined by their many relationships within the intricate network of Chinese society.”[28] When conflicts arise, more than the immediate parties to the dispute are affected. Rather, disputes adversely affect the social harmony on multiple levels, from the parties to families, businesses, communities, and beyond.[29]

Chinese culture believes that litigation symbolizes a disruption in social harmony and runs contrary to the Confucian principle of li and jang.[30] The historical and cultural reason behind this view lies in the customary ethical rules of behavior which “[e]mphasized status and the necessity of maintaining group harmony… [C]onsequently, the Chinese regarded rights-based claims as disruptive violations of fundamental ethical rules.”[31] The Chinese culture goes so far as to characterize litigation as a "a public admission of some personal failing."[32] Hence, jang, compromise or yielding,[33] arose as the socially acceptable way to resolve disputes whereby one must "yield on some points in order to gain some advantage on others."[34] The principle of jang in dispute resolution is influenced by the virtue of “self-criticism” whereby an individual examines his own conduct and critically evaluates to what extent his behavior caused or contributed to the conflict at hand.[35] Identifying one’s own fault in a conflict is believed to help parties arrive at a more equitable resolution than litigation.[36] Through these means and philosophies, parties are encouraged to settle their disputes privately[37] and, only if necessary, to appeal to the family or community for aid in settlement.[38]

Despite the emphasis on the Confucian principles of li and jang, pressure from the West to create a “modern” legal system compelled China to establish a court system.[39] Due to a lack of commitment on behalf of the Communist Party, the judicial system did not develop to its greatest potential – one replete with formal codes and rules by which to administer justice and vindicate rights.[40] Instead, the Communist Party sought a flexible[41] system that was accessible to the people and believed that an overly formal judicial system was inconsistent and incompatible with communist ideals. As a result, resort to the Chinese courts proved to be an “inordinately expensive, time-consuming, and unpredictable” endeavor, which has been characterized as harsh as it is degrading.[42] Those who went to court often suffered humiliation at the hands of the magistrate’s staff who were their social inferiors, faced potential incarceration during trial, were denied professional advocates, and subjected to legally prescribed torture intended to illicit evidence.[43]

 

B.              Maoist Philosophy: Confucianism to Maoist Philosophy

With the inception of communism in the twentieth century, mediation continued to be the popular and accepted means of dispute resolution. The Communist Party recognized that the Confucian principles of social harmony and self-criticism mirrored and served communist ideals and goals:[44]

Mao’s fundamental concern with transforming the thought of individuals lies at the heart of strategies aimed at mobilizing the masses. In the Maoist view, political thought is incorrect unless it proceeds from and applies the correct thought. The thought and consciousness of individuals and their social classes must be changed by “resolving their contradictions” through the use of tools of struggle, especially “criticism and self-criticism…”[45]

 

The “Communist Party adopted mediation as a means to promote social harmony and control, conducting mediation with the assistance of ‘party cadres’ or People’s Mediation Committees.”[46]

In addition to the obvious benefits (avoiding cost, delay and undesirable dissonance), mediation by party members or organizations also served as a means of “educating the people and implementing party policy.”[47] “The idea of citizens correcting their own actions, albeit at the insistence of party cadres, through ‘persuasion and education’ led to the renewal of mediation in Chinese life.”[48] The Communist Party de-emphasized individual interests in favor of promoting social harmony and the common good on behalf of society as a unit.[49] Compromise, rather than victory over another, is seen as a stride towards greater unity. “In many respects, dispute resolution now bears the heavy imprint of communist ideology and perspectives.”[50]

The duet of communist ideology and mediation is accomplished through the structure of the mediation system. The role of Chinese mediators is to facilitate communication and problem solving between the parties.[51] To reach expedient and ideally harmonious resolutions, a mediator is adorned with power much like that of a trial judge – he may propose solutions, issue advisory opinions, and even decide questions of fact.[52] Mediators are also expected to exert political, economic, moral, and social pressures to compel parties to not only arrive at speedier resolutions, but also to agree to resolutions that comport with the Communist Party goals.[53] In light of mediators’ allegiance to the Communist Party and their great influence in the outcome of disputes, one cannot help but question the voluntariness and fairness of some of the mediation resolutions.

 

II. CHINA’S MEDIATION PROGRAMS

                  China’s mediation system is the most popular method for dispute resolution across a broad range of disputes,[54] both domestically and internationally.[55] Mediation is primarily used as a non-judicial dispute resolution method,[56] but it is also routinely implemented during arbitration and trial processes.[57]

A. Traditional Non-Judicial Mediation

                  Informal, non-judicial mediation has long been used in China as the preferred method of dispute resolution.[58] Mediation became codified in the 1954 Provisional General Rules for the Organization of People’s Mediation Committees.[59] Later, under the Organic Rules for People’s Mediation Committees promulgated in 1989,[60] each Urban Neighborhood or Village Resident Committee was entitled to establish People’s Mediation Committees[61] while larger workplaces such as government institutions, businesses, schools, and mines were permitted to create their own mediation committees.[62] These local committees consist of three to nine persons elected by the constituents within their jurisdiction.[63] The role of the committee members is to investigate the facts, weigh the facts to determine right from wrong, talk to the disputing parties, help the parties understand the facts, and attempt to have the parties reach an agreement.[64]

Though the Organic Rules for People’s Mediation Committees impose an obligation on the disputing parties to honor the mediation agreement, the agreement is not binding.[65] Either party can rescind the agreement or appeal to a local government agency or a people’s court.[66]

The manner in which mediation is structured reflects the interweaving of Chinese Communist ideology with the individual’s role in society.[67] Groups are organized by communities and workplaces because the Communist Party believes that morals, a focal point of the communist tradition, varies by geographic location and status.[68] Thus, national laws and codes are substituted by local mediation groups that conduct meetings regularly to discuss understandings of current events and political policy.[69] Should there be dissent within the mediation groups, group members are expected to apply social pressure to correct the mediator and realign the mediator’s understanding with that of the group through “criticism-education.”[70] Though mediation is conducted outside the purview of the courts and the groups are permitted to self-determine local norms and values, the results must ultimately comport with overarching national policies and rules.[71]

 

B. Mediation during Arbitration Proceedings

China has formally incorporated mediation into its arbitration proceedings.[72] Arbitral forums, both domestic and international, are required or permitted to mediate before commencing arbitration.[73] The 1983 Contract Arbitration Regulations required the parties to attempt to resolve their dispute through mediation.[74] Even where the dispute is arbitrated, China’s new Arbitration Law permits a tribunal to attempt mediation before deciding on an arbitral award.[75]

Notably, China has taken the lead in inventing new mediation methods such as “joint mediation” for use in international arbitration proceedings.[76] Under “joint mediation,” a Chinese party may apply to the China International Economic and Trade Arbitration Commission (“CIETAC”) in international arbitration proceedings.[77] Upon such application, the arbitrator appoints one or more mediators to mediate the case together.[78] Under the CIETAC agreement, international mediation efforts have been highly productive because mediators are selected from the parties’ own countries, thus fostering trust among disputants.[79] Unlike domestic mediation, international arbitration does not have the one-sided pressure of Communist policies.

 

C. Mediation During Litigation Proceedings

                  Mediation plays a role in litigation proceedings very similar to that of federal settlement conferences in the United States.[80] Upon filing with the court, Chinese judges conduct an in-court mediation hearing if the parties do not object and if the case so requires.[81] As in the American system, Chinese mediators are granted wide discretion as to how they conduct mediations.[82] Chinese mediators meet with both parties jointly and individually.[83] The judge-mediator may suggest settlement proposals that he believes to be fair, or he may offer an assessment of each party’s case to encourage parties to re-evaluate their positions, thereby facilitating settlement.[84] Unlike the American process, the judge-mediator may draw upon his own cultural and legal experience to evaluate the facts and propose legally binding settlement agreements.[85] Upon agreement by the parties, the court composes a mediation statement that legally binds the parties. [86] This likens the Chinese in-court mediation to an American settlement agreement rather than a voluntary mediation agreement.[87] If no mediation agreement is reached, the case goes immediately to trial.[88] Even where litigation is pursued, judges are permitted to make a final attempt to mediate the case prior to rendering the decision.[89] The use of mediation, even up to the moment a decision is rendered by the court, strongly evidences the deep roots of mediation and the values it engenders in Chinese culture.

 

D. Inadequate Judicial System

1. History – Structure of Current Government

Chinese history, even in the last century, has tread a tumultuous path which undoubtedly affected the development of its judicial system. In 1949, the Communists emerged victorious over the Nationalists[90] and, under the leadership of Mao Ze Dong, sought to establish a new legal system using the Union of Soviet Socialist Republics as its benchmark.[91] Sensitive to Western criticism that traditional Chinese law was backward, and that a “modern,” or Western, legal system would advance the development of Chinese society, the Communists moved quickly to establish a “modern” legal system based on codes and legislation.[92] Initially, the Communist Party recruited former nationalists[93] well versed in Western-style legal systems.[94] However, these former nationalists were quickly branded as politically unreliable and elitist.[95] They were replaced with “new cadres” selected not for their expertise with legal systems, but for their political allegiance to the Communist party and their commitment to the “masses approach.”[96]

The posting of “new cadres” who lacked expertise in western-style legal systems drastically affected the course of China’s legal development.[97] The “new cadres” believed that a legal system should not be overburdened with complex technicalities[98] that appear to riddle the Western systems. Rather, the Communist Party sought to create a system that would be easily understandable and accessible to the masses.[99] Initially holding dominant positions, the experts were able to effectuate progress.[100] However, the 1957 “anti-rightist movement”[101] marked the beginning of a twenty-year period of political reform[102] where legal growth was thwarted by evolving national sentiments, thereby stagnating attempts to establish a formal legal system.[103] Even during the Great Leap Forward and the Cultural Revolution when China strived for great scientific and cultural advancements, legal study made only cautious progress.[104] This may be attributable to the growing prominence of the “mass line”[105] approach to law and punishment[106] that runs counter to a systematic and structured legal system for which the Communist Party initially strived.[107] However, during the period of the “Gang of Four,” the legal system was thrown further back as violent and brutal techniques were employed “to purge positive law and those associated with it.” [108]

                 It was in the wake of the “Gang of Four” that China appeared to make efforts to develop a formal legal system. Referred to as the period of the “four modernizations,” China attempted ambitious strides in science, agriculture, industry, and national defense.[109] This included a reevaluation of its government system resulting in the promulgation of the 1978 Constitution which re-established the tripartite administration created by the Nationalist specialists prior to the anti-rightist movement.[110] Accompanying this restoration was a movement to bolster the legal system by supporting the re-emergence of lawyers, law schools, and legal publications.[111] Despite these efforts to revive past attempts at a Western legal system, the initiative was quite slow in effecting the development of the legal system.[112]

It was not until the 1990 Procedural Law of Administrative Litigation and the 1991 Civil Procedure Law that China took significant steps towards a more codified, and consequently more structured, legal system.[113] However, in light of these advances, mediation remains the premier dispute resolution technique, as evidenced by its codification in the 1954 Provisional General Rules for the Organization of People’s Mediation Committees.[114]

The 1989 Rules,[115] while placing mediation committees[116] under the jurisdiction of the Ministry of Justice and providing more structure for the committees, allowed greater independence from the central political party.[117] This legislation caused the modern mediation system to be more independent, professional, and efficient.[118] Despite the importance and many improvements of this legislation, there are still issues that must be addressed, such as mediator qualifications[119] and advisory powers, as well as the political, economic, social, and moral pressures they may apply on the parties.[120] In addition, the legislation does not further develop China’s legal system. Rather, the legislation supports mediation and its legislative and judicial diverting effects.[121] A wide spectrum of cases, including both civil and criminal, are diverted from the courts and funneled into mediation.[122] Though this appears to be administratively advantageous, it retards the development of judicial law[123] and implementation of existing laws.[124] Given that mediation is to be conducted in accordance with law,[125] where there is a lack of uniformity[126] and application,[127]mediation is resolved in accordance with local beliefs of fairness[128] and communist goals and policies.[129] China’s adoption of the Code of Civil Procedure in 1991, containing an entire section describing mediation’s proper use, reaffirmed its commitment to mediation.[130]

 

2. Courts.

Mediation owes much of its popularity due to its historically troubled and inaccessible court system.[131] Even today, litigants regard the Chinese legal system as arbitrary and unpredictable, thus inspiring little confidence in the process.[132] Distrust of the legal system is attributed to a multitude of factors including: corruption among judges, the lack of meaningful qualifications to become a judge, a judicial branch that operates under the stringent watch of the Communist Party, and the inaccessibility of published codes and case law.[133]

Perceived bias on the part of China’s judges, compounded by the lack of any education and training requirements, insufficiency of power to enforce judgments, and absence of a unified reporting system creates an unpredictable and worrisome schema for any potential litigant.[134] In addition to close National People’s Congress (NPC) oversight,[135] judges are required to attend party meetings to remain abreast of current party policy.[136] It is worthy to note that over ninety-percent of judges are party members.[137]

Selected by the government, “judges serve at the pleasure of the county, province, or city government that appointed them…”[138] Judges and other court personnel do not require any legal training. Only recently have judges been required to possess minimum educational requirements.[139] Despite government’s efforts to improve its judicial system by implementing minimum educational, training and testing requirements, the Communist Party continues to appoint judges based on political affiliations rather than on legal aptitude.[140] The result of this practice is a judicial system in which outcomes are determined not on existing laws or codes, but on the local or political affiliates’ interpretation of general party policies.[141] Judges have been known to bend procedural rules for friends and to accept bribes that affect the outcome.[142] Additionally, local protectionism bestows upon local residents distinct advantages when litigating or mediating against community or national “outsiders.”[143] “Political influences, the lack of educated judges who are able to find and apply law, widespread corruption and favoritism, and judgment enforcement issues combine to create a distrustful and unpredictable court system.”[144]

These weaknesses in the legal system trickle down to affect the mediation system because the mediation outcomes are supposed to conform with law. Where law is difficult to identify and implement by magistrates,[145] it must be assumed that mediators are in at least an equally disadvantageous situation. Even where mediation is court performed, the mediator-judge still has the problem of identifying law.[146] Another related problem with court-performed mediation is that the judge must also act as the mediator.[147] Because the judge plays the dual roles of an impartial trial judge and a mediator for settlement purposes, litigants will naturally censure their sharing of information[148] - an important component of a successful mediation.[149] Moreover, enforcement of judgments is often very difficult and complicated, leaving a successful litigant without the benefit of a practical remedy.[150]

Each level of government, whether county, city, or central, holds its own court and exerts considerable control over that court’s workload.[151] “It is the communist party, however, that exerts the greatest influence on the courts.”[152] To ensure that the courts abide by party policies, the Communist Party closely supervises the courts through its central legal committee and other legal committees established at various levels of government.[153] “The ‘supervisory’ role of the Communist party at times has included direct involvement with important judicial cases, although the stated policy of the Communist party is not to interfere with the daily functioning of the courts.”[154]

                  Clearly, development of the judiciary will not displace the use of mediation.[155] Rather, a stronger and more reliable legal system will bolster the reliability and predictability of mediation.[156] At this point, mediation is the people’s fall back from China’s inadequate legal system.[157] The Chinese court–performed model actively encourages, and in some cases forces, parties to mediate rather than have their rights adjudicated in court.[158] Even where the parties are permitted to take their case to court, there are still many concerns about the court’s neutrality.[159] The Chinese court does not operate as an independent branch of government as it does in the United States, instead the court is an inquisitional court where there are few lawyers and poorly trained judges.[160] In court-performed mediation, the judges act as mediators, thus bringing into the proceeding a local and party bias. Even where parties engage in informal mediation, the mediators are often party affiliated and impose communist party objectives into their, often forceful, settlement proposals.[161] The sheer vastness, local biases, and a poorly operated court system also add to the problem of lack of uniformity among the cities and provinces.[162]

 

III. Benefits to Mediation from the Development of China’s Legal System

 

Since mediation must be performed within the purview of the law, development of a more formalized legal system will improve Chinese mediation. Parties will have a better understanding of the rules and regulations that they must follow to preserve certain rights or privileges, and as a result, there may be less conflict and need for dispute resolution. Even where parties pursue mediation, the parties arrive at a more fair and expeditious settlement when they are aware of rights and rules. While China has made strides to establish a more codified judicial system,[163] it still must overcome several problems. First, China’s lack of uniformity in the application of these laws indicates problems in its drafting, inadequate enforcement, and wavering commitment by leaders to a law-based regime. Secondly, China’s expansive and disjointed legal system make it difficult for courts to identify and apply appropriate laws.

                  Legislature. The organization of China’s legislative and policy-making bodies is hindering the development of a coherent body of law. The executive branch of the central government consists of the State Council, which overseas over sixty departments, commissions, administrations, and offices.[164] Departments generate “departmental rules”, but the absence of procedure governing enactment of these rules permits an agency with exclusive jurisdiction over that subject matter to “issue or modify” these rules subject only to the approval of the State Council.[165] Though the various rule-making bodies are supervised by the State Council, absent is a shared vision towards the development of rules as well as their enforcement.[166] The result is a vast and disparate collection of laws lacking “sufficient unity to be regarded as a coherent body of law.”[167]

To compound this problem, Chinese legislative authority is becoming increasingly decentralized. While ultimate rule-making authority rests in the Central Government, in practice rule-making power is becoming increasingly concentrated in the hands of the administrative agencies and provincial governments.[168] While national departments and agencies enact legislation and rules superior to those of the provinces or local agencies, the decrees are broad and ultimately left in the hands of the local administrators to interpret and apply.[169] Hence, the legislative power of the central government is undermined as “Central directives and exhortations are typically ‘ignored or superficially followed,’ deviations from central state policies is encouraged….”[170]

Contributing to the state of legislative disorder is China’s “flexible” approach to legislative drafting. This approach reflects China’s long-favored preference for equitable resolution as opposed to adjudication of rights and uniformity of law.[171] Chinese legislation resembles governmental policies and objectives rather than an outline of actual rules or rights. Chinese legislation is intentionally drafted in broad sweeping language,[172] often referring to general principles and granting broad discretion to administrators in order to create flexible application of laws depending upon the circumstances of the case.[173] Vague drafting combined with the absence of any centralized system for tracking and reporting legislation, rules and policies decreed by national and local administrators make it impossible to expect uniform interpretation and enforcement by courts or extra-judicial mediation.[174]

 

Courts. In such an expansive and disjointed legal system, courts face difficulty in defining and enforcing rules and rights.[175] Since 1978, China has made great efforts to enact substantive law and procedural rules to provide consistency and regularity, however, many of these rules merely codify fact-based and ideological discretionary application of the law.[176] However, this result is intended as judicial administrators are expected to resolve conflict more in the spirit of equity than in the adjudication of rights.[177] The laws merely codify informality, thereby blurring the lines of adjudication in the courts and mediation.[178]

Despite the increasing use of courts,[179] litigation is not the socially preferred method of dispute resolution.[180] Mediation is still preferred, particularly where the maintenance of the relationship is important or where there is a lack of judicial sophistication in the subject matter.[181] Development of the Chinese bar and legal education has lagged behind the development of its legal system.[182] The number of attorneys in China is small and the professional standards remain low.[183] Furthermore, despite vast amounts of legislation generated, locating applicable law can be nearly impossible due to the lack of a current and comprehensive database or laws and regulations enacted by the many governmental bodies.[184]

Even when cases are brought to the courts, a good outcome is one that is not only consistent with the law as defined by the administrator, but one that also maintains social harmony through the dispensing of individualized justice.[185] Hence, courts’ contributions to the enforcement or development of law are limited. Since decisions are based more on specific facts than the letter of the law, decisions do not set legal precedence nor do they clarify individual rights.

This impacts both court administered and extra-judicial mediation as Chinese procedural codes require that mediation comport with the law. However, vague law and the absence of procedural guidelines for mediation permit mediation to be conducted according to the terms and moral beliefs of the judge or mediator.[186] Such power and discretion contributes to the resurgence of corruption among lawyers, judges, and officials.[187]

CONCLUSION

“One of the hallmarks of mediation and one of the primary reasons for (mediation’s) relative popularity is its ‘capacity to expand traditional settlement discussion and broaden resolution options, often by going beyond the legal issues in controversy.’”[188] “Legal reformers recognize the need for greater confidence in the Chinese judiciary through better training of judges, codification of laws, and systematic application of those laws, especially in light of its relatively recent economic growth and interaction with the world economic community.”[189] Despite China’s initiative to establish a more modern legal system that is committed to codes and legislation to engender confidence in its legal system as well as to compete in the international economic market, it is still deeply committed to the concept of institutionalized mediation.[190] However, China need not displace its long favored use of mediation. Instead a system in which rights are more certain and outcomes predictable lends greater credibility and efficiency to mediation rather than mediation being the less attractive alternative in dispute resolution.

[1] Justice Robert F. Utter, Tribute: Dispute Resolution in China, 62 Wash L. Rev. 383, 396 n. 2 (1987), citing Cohen, Chinese Mediation on the Eve of Modernization, 54 Calif. L. Rev. 1201, 1201 (1966).