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Reservation remains over mediation

Reservation remains over mediation

The merits of mediation are not always easy to see - particularly in China - writes Matthew McKee As a law student I never enjoyed classes on dispute management skills. I have unpleasant…

The merits of mediation are not always easy to see - particularly in China - writes Matthew McKee

As a law student I never enjoyed classes on dispute management skills. I have unpleasant memories of taking part in simulated mediations concerning make believe countries, where the "right answer" appeared irrelevant and no person "won". However, I never considered that mediation did not have a role to play in a legal system. The benefits of mediation - that it is better at preserving the parties' relations, that it is a more time-efficient process and is more cost-effective - have always been too apparent.

For these reasons I have often been amused and perplexed by some of the reactions to mediation by the Chinese legal profession. In mid-2009 the Supreme People's Court issued an opinion that will potentially make it easier to enforce mediated settlement agreements and in September 2009 the Henan Provincial Department of Justice and the Henan Higher People's Court jointly issued a document suggesting that lawyers should encourage mediation and out-of-court settlements. Fairly uncontroversial, right? Wrong, it has caused quite a fervour here. Critics have contended that mediation only "covers up" disputes, does not tackle the "roots of the disputes" and that an increase in mediation will lead to courts shrugging off responsibilities.

Despite my initial amusement at seeing such comments, I was not entirely surprised because mediation does not always sit so well in the culture of the Chinese legal profession. Litigation in China can be somewhat testosterone-fuelled - I have seen email correspondences between opposing lawyers containing the equivalent of school boy insults. China is also battling against judicial corruption and there is a constant push for more open legal processes. Mediation - in the sense that it is a private as opposed to a public process - is viewed as contrary to that aim.

This is not to say that mediation is absent in, or new to, Chinese society - mediation is very much consistent with traditional Confucian ideals and People's Mediation Committees have been present since the founding of the Republic in 1949. However, the challenge has been in combining those ideals with the modern legal system and a developing rule of law. The comments mentioned above may suggest that some view such a fusion as inappropriate. Yet, the rising flood of litigation in China has garnered impetus for the acceptance of mediation within the legal system.

However, we may still be some way from a position where dispute management skills will be considered critical for lawyers in China.

Matthew McKee is an Australian lawyer working in Beijing

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