Mediation and Its Discontents

Mediation
• Different Contexts:

• A Chinese way toward dispute resolution

• A long history
• Ancient China to the People’s Republic
• Contemporary China
 Mediation
• “Courts continued to rely on mediation as the principal method of dispute
resolution. The courts thus provided a venue not for applying positive
legal norms but for applying, essentially, (Chinese) negotiation norms.”

• Social background: rise of civil disputes

• “The most visible and striking change in the post-Mao Chinese judiciary
has been the rise of civil law and civil justice in Chinese courts. Chinese
courts throughout the 1950s, 1960s and 1970s were predominately
criminal courts both in terms of the nature and number of criminal cases
processed, although civil cases had been growing over the decades.
Before 1979, criminal cases generally accounted for approximately half
of the case load of the courts, and in a number of years, criminal cases
exceeded civil cases. The gap between civil and criminal cases started
to widen in favor of civil cases from the earlier 1980s.”
Mediation
 Mediation
• Maoist approach and theory:
• “The Maoist theory divides social conflict into two types of contradictions:
the antagonistic contradictions between the enemy and the people and the
non-antagonistic contradictions among the people. Like other
revolutionary states, the PRC State is characterized by a dual system of
justice, one for the people who are supportive of the regime, the other for
the people who are hostile to the regime, i.e. the enemies. Criminal law had
long been an instrument used by “the people” against their enemies.”
 Mediation
• Courts, as “places of dictatorship” and as “instruments of
dictatorship”, were used to fulfill the function of class struggle and
class repression. Punishing counter-revolutionaries was the core
judicial function. This situation is clearly reflected in the large
proportion of counter-revolutionary cases received by the courts
between 1950s and early 1970s
 Mediation
• Another significant aspect of the “two contradictions theory” was the
justification for the “democratic” treatment of disputes among the
people.
• For non-antagonistic contradictions, democratic measures included
persuasion and education, following the model of “unity-criticism-
unity”. Mao’s purpose was to emphasize that, while the struggle
against class enemies continued, it was imperative to recognize the
existence of non-antagonistic contradictions among the people,
which should be handled patiently and leniently, and mostly, out-of-
court.
 Mediation
• Courts were reserved for serious offences. Civil disputes were
internally absorbed by communities and workplaces and minor
offences were punished by police.
Mediation
 Modern reforms
• Pre-1978: almost no civil law
• Post-1978: civil dispute resolution mixed with western elements and
mediation
• More western elements of adjudication
 Modern reform
• By 1958, the requirement to mediate became concrete and clear.
Judges were required to follow a twelve-character directive:
investigation and research, taking mediation as the principal
method; and solving disputes where they arise ( 调查研究，调解为主
，就地解决 ).
• Later the directive evolved into a 16-character one: relying on the
masses, investigation and research, taking mediation as the
principal method, and solving disputes where they arise （依靠群众，
调查研究，调解为主，就地解决） .
 Modern reform
• “The shift in judicial policy toward adjudication has taken place
across three levels.”
• “At the personnel level, formally trained judges have been replacing
the old generation of revolutionary cadres; at the ideological level,
the judiciary has been promoting judicial professionalism and
formalism in civil justice; and at the policy level, the judiciary has
been emphasizing the importance of adjudication in developing
rules and the rule of law. The shift in judicial policy began gradually
and steadily to limit the use of mediation.” (Change?)

• New trend: build One-stop Diversified Dispute Resolution

Mechanisms and One-stop Litigant Service Centers (2019)
Opinions of the Supreme People's Court on Building One-stop
Diversified Dispute Resolution Mechanisms and One-stop Litigant
Service Centers (2019) [Effective]
最高人民法院關于建設一站式多元解紛機制 一站式訴訟服務中心的意見
• Controversy:
• “There was no formal record kept of the process. Since the same
judges who mediated disputes also adjudicated them if mediation
failed, these judges were placed in a strong position in influencing
party choices. Given the nature of mediation, there were ample
opportunities for ex parte contact with parties and their lawyers. ”
 1990s to 2006
• Westernized reforms?
• Criticisms against Mediation: Enforcement? Voluntary? Efficiency?
Procedural justice?
• Adversarial procedure?
 1990s to 2006
• “The 1991 Civil Procedure Law was an important milestone in the
transition from mediatory to adjudicatory justice. As a matter of legal
principle, the new law emphasized that mediation must be voluntary
and lawful. Upon the failure of mediation, judges should proceed
immediately to adjudication.”
 From 2006 on
• Attacks on formal adjudication (social stability, etc.)
• Too much emphasis on procedure, ignoring substantial justice
• It seems many petitions are law-related
• Mediation restored until Zhou Yongkang’s downfall.
• Combination of mediation and adjudication
 Revived mediation
• The combination of legal effects and social effects
• Mediation rates as assessment criterion
• Disputes must be resolved rather than finished.
 Populism
• Liebman: “Populism in the Chinese legal system refers to a range of
forms of public expression, from public opinion created by the state-
run media, to opinion in Internet forums, to collective action and
individual protest by persons seeking redress of grievances.
Populism also refers to efforts by legal institutions to seek public
support by aligning outcomes with perceived dominant social norms
or conceptions of popular morality or by making legal institutions
more accessible.”
 Adaptive legality
• Three trends in legal reforms:
• First, law during the reform period has primarily served as a tool for
party policy, following, rather than leading changes in policy.
– Legal reforms have thus largely served to facilitate, rather than
limit, the implementation of state policies.
• The second trend in legal reform has been an emphasis on
experimentation, both formal and informal. Sebastian Heilmann has
noted two manifestations of experimentalism in the legal system,
through policy implementation ahead of legislation and via
regulations and other legal norms that are classified as
“experimental”.
 Adaptive legality
• Third, the legal system is characterized by tensions between trends
toward professionalism and populism.
– Populist pressure have challenged the authority of legal
institutions, but popular support is also being used as a potential
source of legitimacy for legal institutions, both with the public
and within the party-state.

The three trends highlight the flexibility that remains central to

China’s legal system. All legal systems must be flexible, and
courts everywhere create new legal norms.
 Ma Xiwu-style adjudication
• Ma Xiwu-style adjudication was characterized by roving tribunals and trials
held “on the spot” in rural communities to obtain local knowledge about the
dispute. Resolving disputes successfully meant leaving all parties satisfied
with the outcome, thus maintaining state authority in the eyes of the
disputants.

• The Ma Xiwu method embodied core elements of CCP legal ideology. Law
became inseparable from politics and was designed to advance party
policy. Law was practical and adaptable, not rigid or constraining.
•
• Courts that bend to accommodate the media or petitioners are not
abandoning principle. They are doing exactly what their roles in the
political-legal system require: adapting in a practical fashion to popular
demands and ensuring that legal rules do not diverge too greatly from
popular conceptions of right and wrong.
 Consequences
• The de facto abolition of adjudicative finality
• Endless petitions
• Petition threat, suicidal threat to social stability
• Medical malpractice cases; labor cases; land cases; social welfare
cases…...
Are the westernized reforms the
problem?
• Comparing urban and rural areas
• Many disputes cannot be resolved legally because they arise from
the social transition.
 Anjie shiliao 案結事了
• Renewed concern with popular opinion is illustrated by the courts’
emphasis on the concept of “decide the case and solve the problem.”
the phrase means that courts should focus not only on deciding cases,
but also on resolving all issues related to the case.
•
• The focus on problem-solving reflects the fact that in many cases
court decisions do not “solve the problem” because litigants are
unhappy or refuse to accept the decision. As a result, cases persist
even after a decision is issued.

• Courts should emphasize mediations and rapid resolution of cases

and should work on ensure that litigants accept their decisions. As one
commentator explained, anjie shiliao means courts should work to see
that the “legal effect” and “social effects” of their decisions are united.
 Emphasis on mediation
• Like anjie shiliao, the return to mediation is a shift away from
emphasis on adjudication and procedure. And courts are now
mediating a wider range of cases: one recent commentary notes
that mediation currently plays a role in all stages of a case, from
case filing to enforcement.

• Wang Shengjun, who succeeded Xiao Yang as president of the

SPC in 2008, has made it clear that emphasis on mediation and
anjie shiliao are keys to implementing the mass line in the courts
and to ensuring that China’s courts are not unduly influenced by
foreign models.
 Future?
• The degree to which “populist” views actually reflect the views of the
public also should not be overstated – public opinion remains
filtered and often refers to the views that party leaders have decided
to embrace.
• Likewise, court efforts to appear responsive to popular opinion may
be targeted more to party leaders than to the public.

• Court leaders appear to believe that relying on formal legality is not

a path to increase their authority. The courts’ ability to increase their
legitimacy with both the party-state and the public may depend on
whether they can blend populist and professionalized justice.
Whether they can do so may also determine whether the legal
system can become a source of the party-state’s legitimacy as well.
 Divorce cases as an example
• A minor case without potential being escalated to social unrest
• Usually occurred within family members
 Law in action
• If the court renders me a divorce decision, I will cut off her feet so
that she will never leave me…Once this civil case is closed, the
court will get a criminal one.
• – a husband refusing to be divorced.

• I suffered from insomnia because of this case…I am exhausted. I

don’t want to be a frontline judge anymore…I cannot take it. If I
continue to do this, my life expectancy will be shortened.
• – a middle-aged judge.
 2000s and 2010’s
• 2000s: Routinized approach and diminished mediation

• 2010’s:
• New mediation
• Judges’ tactics
• Judge’s Interviewing: Reasons for Divorce Versus Litigants’ Mental
Capacities
• Judge’s Preaching: Political Indoctrination Versus Pragmatic
Persuasion
 Politics of divorce cases
• Methods: participant observation and in-depth interviews with
judges,
• Findings: it demonstrates the significant role that social stability
plays in highly contested divorce proceedings in contemporary
China. In these cases, social stability has come to inform and
decisively shape procedures and outcomes. Since the number of
malicious incidents ( 恶性事件 ) – the reification of social instability –
now has become a dominant criterion assessing judges’
performance, judges have a strong incentive to keep the parties ‘in
check’.
 Politics of divorce cases
• Traditionally, judges preached socialist ideologies and sought to
restore amicable relations between unhappy spouses. By contrast,
the current goal of mediation is to prevent malicious incidents.

• To achieve this outcome, judges employ different tactics that go

beyond their traditional approaches. They are now forced to assess
the likelihood of the litigants causing social disorder. In particular, for
cases threatening social stability, the legal criterion of ‘the
breakdown of mutual affection’ is marginalized. It is in part replaced
by the political principle of ‘no malicious incidents’.
 Politics of divorce cases
• Extreme reactions include suicide attempts, harassment and
physical harm against the other party as well as their relatives, and
even against their own children. Frustrated litigants who blame the
presiding judge may also afflict personal injuries on them. In the
eyes of the state, such incidents involving death or personal injury
are ‘malicious’ ( 恶性 ).

• The problem has become so serious that the SPC (2011) has
issued a notice regarding ‘the Prevention of Malicious Incidents in
Divorce Cases’.
 Mediation model
• If pretrial mediation failed, and court proceedings commenced, the
court would usually attempt to restore an amicable relationship
between the estranged spouses. In this way, the pressure put on
couples by the courts was considerable, and many couples agreed
to be reconciled at this stage of the proceedings.

• However, failure to reconcile would lead to further attempts at

conciliation. Only if both of these types of judicial mediation failed
would the court allow proceedings to be concluded by adjudication.

• The sole ground for divorce was a ‘complete breakdown of mutual

affection’, and many judges interpreted this in a restrictive fashion
 Law on the book
• Article 32 of the amended 2000 Marriage Law, the law governing
whether a divorce shall be granted, still stipulates breakdown of the
relationship as the leading legal principle.
• It also provides a non-exhaustive list of scenarios that would warrant
a divorce: bigamy, cohabitation, domestic violence, deserting family
members, chronic bad habits such as gambling and drug addiction
and separation for 2 years. Procedurally, each side can file a
divorce petition at the court directly without getting the consent of
their work units.

• However, the judge is still required to conduct mediation before

issuing a divorce, which is the third stage in the trial procedure.
 Shifting From Reasons to Impact
• The judge’s first task in mediation is to interview the parties. But
rather than simply the determination of the reasons behind the
desire for divorce, today the judge needs to examine a party’s
mental states in order to assess their potential reactions if the court
were to rule against them.
• Thus, instead of trying to understand the underlying cause of the
deteriorating relationship, the judge will consider whether the
litigants are mentally stable, whether they could peacefully accept a
decision against their interests and whether they have the potential
to react explosively.
• This has become the measure of success in mediation. Only if a
judge effectively assesses the parties’ mental state can she propose
a solution acceptable to both parties and minimize the potential for
malicious incidents.
 Political Indoctrination Versus
Pragmatic Persuasion
• ‘Preaching’ is a key component in mediation once the interviews are
finished.

• In the Maoist version, judges often in ‘educating’ the divorcing

couple through preaching to them. The goal was to persuade both
parties to reconcile and rescue the marriage. The discourses
employed by judges were political and therapeutic. For instance,
they would criticize a party who was lazy or who had engaged in
extramarital affairs, accusing them of bourgeois ideas.

• In the current form of mediation, by contrast, the purpose of the

preaching is to resolve disputes for more pragmatic reasons.
 Political Indoctrination Versus
Pragmatic Persuasion
• The dominant discourse in today’s mediation has switched to
‘pragmatic discourse’:
– The judge seems to assume the role of a helping professional.
But rather than fixing a broken relationship, her ultimate goal is
to resolve the dispute. A judge does not address who is wrong
and who is right or what is reprehensible and what is laudable.
(He and Ng, 2013b: 282).
Delaying Decision: Divorce Blocking Versus
Conflict Containment
• If preaching does not work, the next tactic is to delay a decision.
Traditionally, in divorce proceedings, this tactic was widely
employed.
• As Palmer (1989: 169) notes, ‘[p]rolonged court mediation has
served as an effective mechanism for blocking contested divorce
applications, especially those in which the petitioner is a woman’
(emphasis added). But in today’s practice, the purpose of denying a
divorce is to contain existing conflicts.
 How does a judge think?
• A judge with 20 years experience in civil cases and educated to
masters degree level described:
– Handling this type of divorce case is not a test of a judge’s ability
to master the law or to apply the law. It is more of a test of a
judge’s holistic ability to solve problems. In this process, I did not
consider whether ‘the mutual affection still exists’ as provided in
the law. My standard is to avoid the malicious consequences
that might result from a divorce decision. I would not approve the
divorce petition even if ‘the mutual affection between the couple
had already been broken down’. (IS1304)
 Finding Solutions Versus Avoiding Responsibility

• When delay fails to resolve the case, reporting to the adjudication

committee becomes the next tactic. The purpose of adjudication
committees is to decide difficult, significant or sensitive cases. Their
members are experienced bureaucrats who are alert to political
concerns and the social impact of disputes (a subject on which
junior judges may lack experience).

• Although the scope of ‘difficult, significant or sensitive’ is difficult to

determine, it is rare for divorce cases to be placed on an
adjudication committee’s agenda. Historically, under the approach
adopted in Maoist mediation, cases were reported to the
committees primarily as a means to find solutions to rescue a
marriage.
 Finding Solutions Versus Avoiding Responsibility

• By contrast, in the current mode of mediation, a case is reported to

the committee when malicious incidents are likely to occur.
Submitting a case to the committee is the means by which the
responsible judges ensure that the senior court officials take the
responsibility for making a decision, even though the committee
may be no better placed to do so.

• But once a case is decided upon by the committee, the

responsibility for the decision is no longer located in any individual
(He, 2012). Instead, there can be said to be collective responsibility
for the court’s decision.
 How to explain the widespread existence of
mediation in China?
• Culture?
• Politics?
• Institution?
 Political concern
• From contradictions among the people to harmonious society
• Social stability
 Is Mediation Western ADR?
• Alternative dispute resolution: arbitration, mediation, negotiation
• Chinese mediation has never been voluntary.
• Comparing Chinese mediation with ADR could be dangerous.
 Mediation

Parallel to formal Replaceable to formal

system system

State initiated

Community initiated