Magazine article Dispute Resolution Journal

Comparative Analysis of Court-Led Mediation in the People’s Republic of China (Prc): King’s Tribunal Model

Magazine article Dispute Resolution Journal

Comparative Analysis of Court-Led Mediation in the People’s Republic of China (Prc): King’s Tribunal Model

Article excerpt

I.INTRODUCTION

A.Mediation in Traditional China

Mediation has been a popular dispute resolution mechanism in China throughout history because it emphasizes avoiding confrontation through amicable dispute resolution which conformed to values of Confucianism, a dominant political philosophy in traditional Chinese society. From traditional Chinese perspective, dispute is an evil that disturbs social harmony and harms society. Therefore, if possible, it is best to avoid dispute in the first place. If dispute cannot be avoided in the long term, it is important for the parties to take measures early on to remove causes of potential dispute in a non-confrontational way.1

The traditional Chinese perspective on dispute helped mediation become an essential and integral part of dispute resolution in traditional China.2 It should be noted, however, that the term "mediation" in traditional China did not have the same connotations as it did in the West. Mediation in traditional China was not a voluntary process. The dispute had to be a minor matter, and disputants had to pursue mediation through a neutral party (village elder or community leader) before pursuing formal means of dispute resolution. Failure to do so could result in corporal punishment. The "mediator" was not selected by the disputants, but appointed by government officials. These mediators were charged to mediate and settle minor affairs, but given power to assume adjudicatory role to "decide" the matters as well. Although they did not have official authority to enforce their decision, the mediators could impose their decision on the disputants based on their seniority and standing in the community.3

B.Legal Thought Underpinning Mediation in China

It is important to know the Chinese legal thought underpinning the Chinese legal system in order to fully understand mediation in China. The two main Chinese legal thoughts that influence the Chinese legal system are: (1) Legalism; and (2) Confucianism.4

1. Legalism

The roots of Chinese Legalism can be traced back to ancient China when Qin Dynasty (221-07 B.C.) adopted Legalism as the governing philosophy.5 The Legalists believed that the best way to govern was to use penal law as "main instrument" of governance.6 In order to achieve this ideal, the Legalists created a sophisticated system where government officials would rule based on law.7 However, these government officials were expected to act in accordance with the prerogatives of the ruler.8

A major legalist tenet was separation of law from moral considerations.9 The law was publicized to ensure that everyone followed the law and those who failed to do so were held responsible for violating the law.10 Punishment was heavy in the Legalist system because the Legalists believed that people would be deterred from committing improper acts that violate the law if people became aware of severe punishments for violating law.11 Everyone except the ruler was treated equally under the law and received the same harsh punishments regardless of one's social status.12

In the end, China rejected Legalism and adopted a governance system that focused on (1) non-reliance upon legal institutions when solving disputes, and (2) localized solutions subject to indigenous circumstances rather than national solutions that guaranteed equality. This new system was based on the theories of Confucianism.13

2.Confucianism

Confucian legal thought derives from teachings of Confucius, a philosopher who lived in 6th century B.C. China. Confucian thought emphasizes on teaching morality to people rather than governing people using harsh penal law.14 Penal law is considered to be necessary component of society, but its role is to supplement morality taught by the rulers and government officials.15 It is more important to act morally, then to be punished for acting wrongly.

Confucian thought also emphasizes the importance of relationship.16 Compromising to preserve social harmony and relationships is favored over asserting personal rights. …

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