The feasibility of court mediation in today's southwest China : an empirical study of the grassroots courts in Yunnan province

Abstract

Today’s legal system of China has faced many significant changes. One of the often mentioned challenges concerns the appropriate management and handling of an abundance of new and complex disputes. Due to the popularity of Alternative Dispute Resolution (ADR) in Western countries, it began to draw people’s attention when designing a Chinese dispute resolution policy. With this fact being known and considering China’s domestic political climates and the Chinese practice of using non-confrontational means to solve disputes, one circle of scholars suggested that court mediation (fayuantiaojie, 法院调解) should be enhanced. In June 2009, this suggestion was adopted by the Supreme People’s Court. Concerning the challenges of courts handling disputes in recent years, the SPC has placed a priority on practice of court mediation. However, China’s situation differs from the West, and the existing scholarship lacks empirical research on court-connected ADR. This is especially true in southwest China. Thus, it is quite necessary for legal scholars to assess and examine the operation of court mediation in today’s southwest China in order to answer whether it is a feasible institutional arrangement in the southwest context. This will not only enhance our understanding of the nature and rationale of court-connected ADR at the intellectual level but will also perfect its performance in the future.

The purpose of this research is to contribute an empirical study on court mediation and attempts to paint a more complicated and nuanced picture of ADR in southwest China’s context rather than simply copying Western legal narratives to explain China’s legal reality. More specifically, through empirically examining the process of court mediation and the implementation of the relevant policies in practice, this dissertation intends to 1) investigate how court mediation is carried out in southwest China’s grassroots courts in order to answer whether it is a feasible institutional arrangement in the southwest context as well as what the problems are in practice, if any,2) provide suggestions for clarifying and redesigning China’s mediation law in the future and introduce a regionalism-based paradigm to China’s legal studies and dispute resolution policy design as an alternative.

Based on empirical studies in the grassroots courts of Yunnan, this dissertation argues that although court mediation now is driven by “politically correct pragmatism”, it is feasible in southwest grassroots China due to the social context and the social embedment of the locals. However, the current “Mediation First” policy is still problematic because it may over-simplify Chinese complexity in the dispute resolution domain and has gone far away from the spirit of ADR by pursuing political goals as its priority and overemphasizing mediation’s role. The way to solve the problem is not to simply or ideologically restrict or limit court mediation; alternatively, it is necessary to establish more straightforward and uncompromising rules to exclude ill-suited cases from being mediated in order to improve its performance. Now is also the time to re-examine China’s nationalized, generalized paradigm concerning both China’s legal constructions and scholarship, and attempt to open up a new regionalism-based paradigm when analyzing China’s legal issues.