Magazine article Dispute Resolution Journal

The Origins of Mediation in Traditional China

Magazine article Dispute Resolution Journal

The Origins of Mediation in Traditional China

Article excerpt

Mediation, as an important measure to resolve disputes out of court, is practiced in many countries. However, the mediation process in traditional China, with its

distinctions of long historical tradition, wide practice and principles based on a particular moral and social philosophy, has kept its uniqueness and mystery in the world until today.

A Long History

In the earliest historical books, stories of mediation were recorded as part of the oldest Chinese folklore, so it is difficult to say when this tradition started.

It is said that more than 4,000 years ago, the main primitive commune of China along the Yellow River was under the reign of Shuen, a famous king of the earliest history. At that time, people living in the mountains quarreled about the borders of their land, people living beside the lakes argued about the ownership of their houses, and people living along the rivers made and sold pottery of very bad quality. In order to solve these problems, Shuen himself went to each area to farm, to fish, and to make pottery with his people. After one year of his instruction, the mountain dwellers started offering their lands to each other; the lakeside residents started conceding their houses to each other; and those living along the rivers started making and selling pottery of a very good quality.'

In the authoritative history books of each dynasty afterwards, there are many records concerned with this kind of real-life case. For example, Wu You, a county officer` in the Western Han dynasty (206 B.C.-24 A.D.), of whom it was recorded that whenever he had lawsuits to judge, always began by closing his door to reflect on his own negligence, for he believed that if he had instructed his people well in ethics, they would never quarrel with each other. He then stated the reasons clearly to his people, and often went into the streets and homes personally, to persuade his people to become reconciled.3 Lu Jiouyuan, a local Confucian officer in the Northern Song dynasty (960-1127), always exhorted those of his people who were in dispute to make peace among themselves in accordance with Confucian morality. Sometimes people were so moved by him that they tore up their plaints and were reconciled with each other.' It is clear that this method of intercession was a very popular convention and upheld by the governors of that time.

Cases like these were recorded everywhere in Chinese historical books as advanced moral and judicial models. The collected deliverance written by the famous Confucian officers with their convincing Confucianist preaching and beautiful literature in ancient Chinese were always taken as models for both judiciary and literature study. Mediation among family clan and local community also has its long historic source which can be confirmed by the earliest family rules. In the Ming dynasty, this tradition was written in the official code: Each village should build up the "shenming" pavilion ("shenming" in Chinese means "making reasons clearly"). In this pavilion, the local old, intellectual people listened to the disputes of the local people as judges and interceded for them for peaceful solution in most of the cases.'

Three Steps of Mediation in the Qing Dynasty (1644-1911)

From the original rules of the Ming dynasty, there were three steps of mediation in the civil procedure at county level.

The first step was the "private settlement" before litigation. Traditionally people would rather solve their personal disputes by either going to the chief of their family clan or the head of the village rather than sue the officer. Sometimes they did not do this voluntarily but were compelled to do so by the local community. Even at the time when one party had sent his plaint to the county government, he still had to accept the decision made by the intercessors in the local community. The local officers would rather encourage this kind of settlement than judge the cases themselves. …

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