The Use of Mediation in China
While mediation of disputes remains a sought after but often not achieved goal in the United States, mediation is far more commonly used and more successful in resolving disputes in China. There would appear to be a multitude of reasons why mediation has been so much more successful in China than it has in the United States. A number of those reasons seem to be inherent in Chinese culture and not readily transferable to other cultures and nations including our own. Yet, there may be a number of aspects of China?s successful use of mediation that may be of use in our own country?s pursuit of mediation as an essential element of alternative dispute resolution.
Undoubtedly, one of the most conducive aspects of Chinese culture in regard to mediation is the high regard for resolution of disputes that apparently can be traced back to Confucian and Maoist influence. In essence, there is a high cultural value in resolving differences rather than in allowing disputes to linger. Combined with this cultural desire for resolution is a fair degree of cultural bias against utilizing the law and the courts as the means of achieving the resolution of disputes. To the same degree as Americans savor their right to pursue legal remedies, the Chinese seem to find legal resolutions a somewhat distasteful last resort, which is likely influenced by fears of the transparency in the courts. In the United States mediation has been used successfully but there is no stigma in long, drawn-out and expensive battles in the courts; apparently the opposite is true in China; hence a far more receptive attitude toward resolution of disputes by mediation.
While the cultural differences that promote mediation in China are largely beyond transfer to the United States, there is still much the United States can learn from China?s success with the mediation process. One such aspect is the widespread availability in China of mediators, as China claims to have over 860,000 people's mediation committees with 6.6 million people's mediators and professes to provide free mediation 6 million civil disputes (China.cn Website). China?s People?s Mediation Committees provide mediators long prior to the commencement of litigation because they become involved in the mediation process whether asked by the parties to participate or not. Chinese communities have well respected members of the community in place to resolve disputes that arise and are proactive in addressing disputes, offering resolutions and getting all interested parties involved. It would not be uncommon, in business disputes, for one of the parties to invite the mediator to a PR Siu Ja (night club) to determine if a resolution can be found, or in village matters, to involve the community or family members.
There is undoubtedly another and related lesson that can be learned from the Chinese experience. The numbers of mediations available in China and the numbers in terms of the population are substantially greater than in the United States. This does not guarantee either usage or success but it certainly is conducive to those goals. A significant increase in the availability of mediators in this country would undoubtedly make mediation more achievable.
Even in terms of judicial mediation, there is much we can learn from the Chinese experience. It would be fair to say that judicial encouragement of mediation in the United States is haphazard at best. Favored by some judges, it is largely disregarded by others. By Contrast, in China under the direction of Article 35 of the Law on Civil Procedures (China), there is a strong judicial direction in favor of mediation. Surely, a similar degree of statutory direction would be conducive to the increased use of mediation in court cases in the United States.
Actually, China?s Law on Civil Procedures not only favors mediation, it promotes successful mediation in many regards. Article 86 promotes expedited resolution; Article 87 provides for various forms of assistance to the mediation process and Article 89 provides for the formalization of a mediated resolution.
Mediation conducted between a U.S. business person and the Chinese needs to be handled delicately with great care. It is critical to utilize face (guan ju or meen gee) saving strategies by having an individual who has authority to make decisions and who is versed in Chinese customs. The negotiator is a high context negotiator who can use silence, status, and emotions as tools in negotiation. The Chinese have a word for those they believe to be poor business men. A siu ya translates to the English word ?water fish?, but the animal is actually a turtle. To be a water fish is actually to be slow and na?ve, but to believe that one is fast and intelligent. In dealing with the Chinese in mediation it is always critical to be decisive and behave as though you have the authority to act on every decision as to appear Ho Hai (larger than life). One great misconception that foreign negotiators can encounter is the belief that negotiation must be conducted with extreme demands, with a constant back and fourth until a settlement is reached. The Chinese can use varying forms of haggling to pursue their own needs in negotiating without losing face or hurting the relationship of the parties. Relatedly, one approach, which we have not explored in class, is to propose settlements that are close to where you would like to finish and remain diligent that you will greatly change your position (Henry Kissinger encountered and admired this in his negotiations with China).
Chinese mediation have many biases, but it is more important to cover what advantages can be extracted from their mediation rules. Although election of mediators may create biases, the mandate to incorporate both women and minorities is something the US could greatly benefit from. The rules of the village committees mandate socialist values that demand that the mediation be conducted of all parties and the community. The effective use of mediation resolves the majority of disputes in China and although this is done because of the lack of confidence in the legal system, it is nonetheless an extremely effective strategy in reducing the court?s backload, potentially reducing the time and cost of litigation, and ultimately benefiting the parties by having them resolve disputes in a manner in which all parties are in agreement and are satisfied.
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