How and why judges divert trial petitions to mediation : relational work and the social classification of litigants in a rural Chinese lower court

Abstract

Judicial triage is a categorisation mechanism of lawsuits for the optimal use of resources. This thesis aims to investigate judges’ divergent mediation patterns during triage using the conceptual framework of relational work. Judges tend to perform inquisitive mediation, in which they invest great efforts in persuasion and inter-institutional coordination, to withhold litigants’ access to formal justice on some occasions. In contrast, they practice routinised mediation and depend on litigants’ preference on other occasions. The divergent mediation patterns in judicial triage¬¬ shows different rationales of categorisation and differentiates litigants’ paths towards formal justice. Social categorisation has comprehensively discussed the differential allocation of resources and treatments based on group membership. Research following the structuralist approach presumes judges’ categorisation as a reflection of prevailing social values, stereotypes and institutional identities when considering whether a case is worth their attention in formal justice. In comparison, the notion of relational work illuminates the dynamic process of how social actors erect a boundary and distinctive understanding within that boundary through negotiation of relationships. It reveals that the influences from the social and cultural structure on social actors are ambiguious and contingent on the negotiation of meanings. I conducted an ethnographic study at a basic-level court in southeast China, during which I interviewed 41 judiciaries and 11 lawyers, as well as conducted a participant observation. The thesis shows that litigants obfuscate judges’ principles of evaluation through relational work. The relational ties worked out by litigants from both sides produce the relational contexts where judges conduct moral categorisation. The contingency of relational contexts significantly influences judges’ perceptions of the moral matches between the forms of dispute resolution and relational ties. I discovered that relational ties complement the interaction basis on which structural factors shapes judges’ moral categorisation. Except for mutual negotiation of relationships between disputing parties, this thesis further explores how judges, who derive their aurhority from discretion and domination in proceedings, have complicated the contentious process of relational work between litigants. The asymmetry power relationship between judges and the litigants/attorneys, specifically in guanxi, constrained the litigants/attorneys’ creative negotiation of mutual ties. On the one hand, guanxi restrains attorneys/litigants from practising relational work that threatens judges’ professional autonomy. On the other hand, it serves as a moral buffer to circumvent moral conflicts which trigger litigants’ relational work and confines the disputes in instrumental calculation. In sum, this thesis presents how the process of relational work diversifies judges’ mediation patterns. First, litigants creatively invest in producing different contents of relational ties and matches to resolution forms in those ties. Second, the process of relational work is also a meaningful social exchange between litigants/attorneys and the judges assigned to their cases. The pre-existing and acquired relational authority of guanxi between judges and litigants/attorneys constrained the contentious negotiation of relational ties. These two underlying mechanisms jointly contribute to judges’ divergence of mediation patterns.