“There is nothing new under the sun.”
My first-hand knowledge of China is limited: I’ve traveled to Beijing a couple times, spent time (both there and here) with Chinese citizens, practiced law with a Chinese national, etc.
But here is something I’ve never understood:
–How are personal and business disputes handled in China?
China does not follow a “rule of law.” And, therefore, they don’t have a bunch of lawyers or lots of lawsuits. So . . . how do they handle business and personal disputes? It’s always been a mystery to me.
Here’s an article with historical insights on the subject – written a half-century ago:
–S. Lubman, “Mao and Mediation: Politics and Dispute Resolution in Communist China,” 55 Cal. L. Rev. 1284 (Nov. 1967).
As it turns out, mediation has been the primary dispute resolution tool in China for a very long time. This Mao and Mediation article provides the following information and explanations.
MEDIATION IN CONFUCIAN CHINA
Confucianism idealizes “harmony” throughout heaven and earth, beginning with the emperor and extending downward to the lowest level of society. The aim of all human relations is to preserve natural harmony.
Therefore, “mediation had been the primary mode of dispute settlement for thousands of years in traditional China”:
“Confucianism, the dominant political philosophy in pre-Communist China, stressed the virtues of compromise, yielding, and nonlitigiousness. [The state], its governing institutions, and its traditional social nuclei . . . combined to create pressures and institutions for extrajudicial mediation.”
Here is an explanation of how mediation worked in traditional China:
“Often, mediators had to shuttle between the parties, talking separately with them and with other persons having knowledge of the matter in an effort to reach a mutually satisfactory compromise.”
“One observer described the process thus:
First, the invited or self-appointed village leaders come to the involved parties to find out the real issues at stake, and also to collect opinions from other villagers concerning the background of the matter. Then they evaluate the case according to their past experience and propose a solution. In bringing the two parties to accept the proposal, the peacemakers have to go back and forth until the opponents are willing to meet halfway. Then a formal party is held either in the village or in the market town, to which are invited the mediators, the village leaders, clan heads, and the heads of the two disputing families.”
“Procedures akin to arbitration and adjudication were sometimes used if informal mediation had failed. Settlement of a dispute . . . might involve a formal hearing . . . before a group of clan leaders and, perhaps, other respected members assembled for the occasion. . . . parties and witnesses would give testimony, and then a decision would be reached [with the idea that] leaders should try to bring the parties to compromise without imposing a decision on them.”
MEDIATION UNDER MAO
The author of the Mao and Mediation article contrasts traditional mediation in China with mediation under Mao:
“[T]he Communists have sought to replace older values with their own, urging struggle where the Confucians counseled compromise . . . [and] weakening or totally abolishing family, clan, village, and guild, which were . . . the forums in which most disputes were resolved.”
“The Communists, while continuing to use mediation, have substantially altered the traditional mode of mediating disputes. They have redefined the identity and role of mediators and have partially succeeded in transforming the process and functions of mediation.”
“In short, the Communists have incorporated mediation into their effort to reorder Chinese society and mobilize mass support to implement Party policies.”
Here is a concrete example of how mediation worked (or was intended to work) in China under Mao:
“Model Mediation Committee Member Aunty Wu … If mediation isn’t successful once, then it is carried out a second, and a third time, with the aim of continuing right up until the question is decided. Once, while Aunty Wu was walking along the street, she heard a child being beaten and scolded in a house. She went immediately to the neighboring houses of the masses, inquired, and learned that it was Li Kuang-i’s wife, Li P’ing, scolding and beating the child of Li’s former wife. She also learned that Li P’ing often mistreated the child this way. After she understood, she went to Li’s house to carry out education and urge them to stop. At the time, Li P’ing mouthed full assent, but afterward she still didn’t reform. With the help of the masses, Aunty Wu went repeatedly to the house to educate and advise, and carry out criticism of the woman’s treatment of the child. Finally, they caused Li P’ing to repent and thoroughly correct her error, and now she treats the child well. Everyone says Aunty Wu is certainly good at handling these matters, but she says, ‘If I didn’t depend on everyone, nothing could be solved.’”
The cited source of this story is “Kuang-ming Daily (Peking), Oct. 14, 1955.”
This is fascinating stuff. Here in the West, we refer to mediation as a “young profession”; whereas, in the East, it’s been around for millennia. Perhaps we can learn something from them!
And I’d love to know how all this works in today’s China. Can anyone help us out on this?