MEDIATION HAS BEEN the preferred mechanism for resolving disputes in China for a very long time. In recent decades, it has become increasingly popular in both civil law and common law jurisdictions. (For a discussion about mediation and the origin of the word, see China Business Law Journal volume 2 issue 9: Mediation or conciliation?) This column considers the issues that arise when mediation occurs during the course of judicial proceedings and examines a couple of related questions: should current judges act as mediators? If so, should the judge who is hearing a case act as a mediator in the same case? Similar issues arise in the context of arbitration.
The column commences with a discussion about the situation in mainland China. It then considers the situation in civil law and common law jurisdictions.
The success of mediation in court proceedings in China is significant. According to statistics, the majority of cases accepted by courts are resolved by mediation. Mediation has therefore been a very effective mechanism for managing cases and resolving disputes in Mainland China. The basis for resolving civil cases by mediation is found in the PRC Civil Procedure Law (2017 Revision) (see Citation 1).
引文一 Citation 1
PRC Civil Procedure Law
When trying civil cases, a people’s court shall, in accordance with the principle of the free will of the parties, conduct mediation on the basis of clear facts and by distinguishing between right and wrong.
When a people’s court conducts mediation, mediation may be conducted by one judge or by the collegial bench, and mediation shall be conducted in situ to the extent possible.
In addition, the Supreme People’s Court has issued guidance on judicial mediation. The latest guidance is contained in the 2010 Notice on Issuing Several Opinions on Further Implementing the Work Principle of “Giving Priority to Mediation and Combining Mediation with Judgment”. This notice emphasises the importance of social harmony in the context of dispute resolution.
Article 2 of the notice requires courts in China to give priority to mediation at all stages during the court process, including before and after the commencement of litigation. The notice provides, in article 3, that during the course of hearing a case, the court must first consider whether mediation should be used to resolve the case. Where there is a possibility of mediation, it should be undertaken to the extent possible. Article 11 provides that the mediator may be selected jointly by the parties and may also be nominated by the court with the consent of the parties.
It is important to note that Article 67 of the 2001 Certain Provisions of the Supreme People’s Court Concerning Evidence in Civil Procedure provides that any admission of fact made during mediation for the purpose of agreeing a mediation agreement or reaching a settlement may not be used as unfavourable evidence in any subsequent proceedings. Accordingly, judges who act as mediators are required to maintain the confidentiality of matters discussed during the course of mediation.
In most cases in China, the judge who is hearing a case also acts as a mediator. Further, when acting as mediators, judges often adopt an evaluative approach to mediation. Under this approach, the judge evaluates the legal issues in the case and actively presents strategies to the parties for resolving the dispute. This approach can be contrasted with facilitative mediation, under which the mediator adopts a neutral role and focuses more on facilitating negotiations between the parties than actively presenting strategies for the parties to consider. In English, the former approach is often referred to as ‘conciliation’ and the latter approach is referred to as ‘mediation’. (For a discussion about the difference between mediation and conciliation, see China Business Law Journal volume 2 issue 9: Mediation or conciliation?)
CIVIL, COMMON LAW JURISDICTIONS
In certain civil law jurisdictions, such as Switzerland and Germany, judges are actively involved in mediation and often act as mediators in the same case in which they are sitting as a judge. In other civil law jurisdictions, such as France, judges are rarely involved in mediation.
Similar to the position in China, mediation is now recognized as an important alternative to court adjudication in common law jurisdictions and is increasingly effective in helping to resolve disputes in civil proceedings.
Common law jurisdictions diverge on the question of whether current judges should act as mediators. Although most people would agree that retired judges should be able to act as mediators if they are appropriately trained, many people argue that current judges should not act as mediators. Several reasons are given for this argument. First, judges acting as mediators may get involved in the process that is called ‘caucusing’, under which the judge meets separately with each party or their legal representatives. Such practice may be inconsistent with the adjudicative role of a judge and breach the constitutional requirements in the relevant jurisdiction. Second, there is a risk that a judge will express an opinion on the legal issues or the final outcome, which would undermine the principles of mediation.
Third, it is argued that judges should not get involved in private dispute resolution as their role in the justice system is to hear public disputes and to maintain the transparency of judicial proceedings and public confidence in the courts. Finally, if judges act as mediators, they need to be trained as mediators and most judges have not received such training.
On the other hand, many people argue that there are good reasons as to why current judges should act as mediators. These include the argument that if judges do not broaden their role to include acting as mediators in a non-adversarial context, there is a risk that the courts will become less relevant and that they will be seen as a form of alternative dispute resolution instead of as the mainstream forum for resolving disputes. In addition, many people argue that judges can be trained as mediators and that they have unique skills in identifying and helping to resolve issues.
Although there is a lack of consensus as to whether current judges should act as mediators, common law jurisdictions are consistent in rejecting the proposition that the judge who is hearing a case should act as a mediator in the same case. The main argument against this proposition is that a judge who has acted as a mediator between the parties will not be perceived to be impartial if the mediation is unsuccessful and the judge is required to determine the issues. This is because the judge may have heard admissions by one or both parties during the course of the mediation and it is unrealistic to expect that the judge can ignore such prejudicial evidence when adjudicating the case.
An example of the prohibition against a judge acting as a mediator in the same case that the judge is hearing appears in the provisions issued by the Supreme Court of Victoria in Australia on judicial mediation:
23 No member of the Court will hear and determine an issue in a proceeding in which that person acted as a mediator, or where he or she has become acquainted with any confidential information relating to the mediation of the dispute (e.g. where confidential information was provided in preparation for a mediation that was subsequently conducted by another judicial officer).
Instead, mediation is usually undertaken by associate judges, judicial registrars or by private mediators engaged by the parties.
INTERNATIONAL COMMERCIAL COURTS
In June 2018, the Supreme People’s Court in China issued Provisions on Several Issues Regarding the Establishment of the International Commercial Court. The provisions establish the International Commercial Court ‘as a permanent adjudication organ of the Supreme People’s Court’ for the purpose of ‘trying international commercial cases’. The establishment of the International Commercial Court in China follows similar developments in other jurisdictions. (For a discussion about international commercial courts, see China Business Law Journal Volume 8 Issue 10: International commercial courts.)
It is interesting to note that although the Provisions recognise the use of mediation within the context of court proceedings, they do not provide for judges to act as mediators. Instead, Article 12 provides as in Citation 2:
引文二 Citation 2
Provisions on Several Issues Regarding the Establishment of the International Commercial Court
The International Commercial Court may, within seven days of accepting a case and with the consent of the parties, entrust a member of the International Commercial Expert Committee or an international commercial mediation institution to mediate.
It is possible that the Supreme People’s Court decided against permitting judges to act as mediators as a result of the ongoing debate in many jurisdictions as to whether judges should act as mediators.
A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia.com.