Judicial mediation

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.

MAINLAND CHINA

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).

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?)

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 law.asia.