Academic journal article Law & Society Review

Flexibility and Authority: Resolving Labor Disputes in A County Government in Western China

Academic journal article Law & Society Review

Flexibility and Authority: Resolving Labor Disputes in A County Government in Western China

Article excerpt

(ProQuest: ... denotes non-USASCII text omitted.)

Over the last decade, China has witnessed a resurgence of mediation in dispute resolution. Institutionally, many agencies, such as government bureaus, community organizations, and courts, have been called upon to proactively mediate disputes, resulting in "the Grand Mediation." Although adjudication and arbitration continue to be utilized, mediation has been aggressively pursued, and has become the preferred method of the Chinese regime. According to official statistics, 63 percent of the 1,332,000 labor disputes in 2012 were settled by mediation ( 2012).

Is mediation an effective means of dispute resolution? Answers vary based on different perspectives and data. Fieldwork from rural China, for example, Xiong (2014), has shown that judicial mediation remains effective and important. Focusing on medical disputes, Ding (2015) contends that mediation is "a dose to cure 'medical chaos'." Huang (2015) suggests that securities dispute mediation has the potential to become a successful forum. Conversely, the literature is critical of this revived mediation. Minzner (2011) dubs this resurgence a "turn against law," which in the long run undermines the legal spirit. A recent study (He 2017) demonstrates that, in divorce cases, judicial mediation from the perspective of stability concerns has undermined legal principles. Some (Ng and He 2014) argue that there are internal contradictions in judicial mediation. When judges conduct mediation, role conflicts are widely registered (Chen 2015; Xian 2015). Judges, especially those who receive formal legal education, seem resistant to the renewed mediation (Fu and Cullen 2011). As a result, many call for a "rethinking" of the mediation campaign (Zhang 2015; Zhao 2015a, 2015b).

However, few studies have systematically assessed the effectiveness of mediation. We all know that from the prereform era to the mid-1980s, mediation was the most important form of dispute resolution for the so-called "internal conflicts among the people" in China (Lubman 1999). It then declined in the 1990s. The political ideology, personnel, organizational capacity, and supporting systems that made mediation effective in the prereform period have either vanished or eroded (Halegua 2005). Will the revived mediation be different?

Drawing on archival records from a commonly used forum known as the Labor Inspection Brigade (LIB) in Western China, supplemented with interviews of relevant officials and complainants, and secondary literature, this article examines the case flow, assesses its effectiveness, or lack thereof, and explores institutional conditions. Given the vast size of China and its immense regional variation, data from a single county over only 2 years do not provide a comprehensive and accurate picture for the country as a whole. It will, however, allow us to track the trajectories of a group of labor disputes in China from beginning to end, including both those that reach a formal legal forum and those that do not. We try to determine how many of these are resolved and by which channels, the extent to which they are resolved, and how their nature affects their final resolutions. We also assess the level of their effectiveness. Comparing our findings with other dispute resolution forums, we examine how the effectiveness of a particular forum is related to its social and political setting.

We argue that the combination of flexibility and authority is crucial in order for informal justice to be effective. The existing literature has long noticed that flexibility and authority are the characteristics of informal or popular justice (Abel 1982a; Merry and Milner 1993). Its emergence is a response to the complex and rigid formality of the formal court system. Authority is also regarded as important in informal or popular justice (Abel 1982a; Merry 1992). The existing studies, when evaluating the effectiveness of informal justice, tend to discuss the two factors separately and discretely. …

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