1.2 Modern Mediation, the Philosophies, Ideals and...
After Qing Dynasty fell in 1911, civil war and intellectual disorder followed.Traditional values were challenged by western views and ideas of democracy and science.In 1949, when the Communist Party took over the regime, the tradition of mediation was maintained and the mediation system was formalized.At that time, Mao Zedong wanted “disputes among the people”to be resolved in an informal way rather than through litigation (Wall &Blum, 1991).Zhou Enlai, then the Premier, commanded that, “The People’s Adjudication work should include dealing with disputes among the people…should use method of people’s mediation so as to decrease the people’s litigation”(G.Li, 1991).“By the late 1950’s, the community mediation system was well in place throughout China, and Mao Zedong, given his bias against bureaucratization and preference for informality, encouraged citizens to use it”(Wall, 1993, p.145).During the Cultural Revolution (1966-1976), the system was left mostly intact.Until today, community mediation has remained formally in place(Huang, 1990; Wall & Blum 1991).The mediation provides a dispute resolution method, and supports decentralization and unit-self responsibility (Wall, 1993).Contemporary mediation serves two purposes: On the one hand, it is informal.The mediator is a respected member of the community and the mediation takes place outside of a courtroom setting.On the other hand, the mediator is a community official, which makes the mediation more formal than if another, non-official mediated proceedings (Wall & Blum, 1991).
According to G.Li (2004), since 1954, the government in China has released bylaws and legislation to regulate the mediation process.In its earliest rules published in 1954, it is stated that people’s mediation must follow the principles of conforming to the law and social public morals, equality and voluntariness, as well as maintaining the litigation right for the disputants.The PRC’s Constitution published in 1982 stipulated that mediation committees are to be established by resident and villager committees.These groups are needed to mediate the disputes among the people, maintain social order, and report the people’s requests, opinions and suggestions to the people’s government.The most recent legal rules on mediation were published in November, 2002.It equivocates the effect of mediation agreement to the effect of the agreement reached in a civil contract.Thus,the outcomes of mediation work are legally binding according to Chinese law.Today, there are four types of mediation that are officially recognized in China: people’s mediation, court mediation, administrative mediation, and arbitrary mediation (G.Li, 2004).People’s mediation deals with conflicts that arise in communities concerning people’s daily life.It is held by street committees and community offices.Court mediation is carried out in the court.It is usually before or during a trial.Administrative mediation is designed to handle work or employment related dispute when the situation involves employees in state owned enterprises or government institutions.These mediations are usually mediated by government or party officials.Arbitrary mediation is one combining arbitration and mediation.
These four types of mediation have covered most of official or semi-official mediations in China.According to Cohen (1966),incomplete statistics show that there were 200,000 semi-official People’s Mediation Committees in China.Ren (1987) indicates that there are 950,000 mediation committees with 6 million mediators in China.Laden (1988) states that there are about one million mediators in China.G.Li (2004) reported that, today, China has 920,000 People’s Mediation Committees in total.There are 700,000 village level mediation committees, 96,000 mediation committees for factories, mines and enterprises, and 29,000 mediation committees of other forms.The total number of mediators is 7.79 million for a population of 1.3 billion.
It is necessary to look at the major guiding values and ideals in modern Chinese mediation in order to better understand Chinese mediation strategies and techniques.Among them are the three major principles stipulated by the legal rules as previously reviewed—conforming to the law and social public morals,equality and voluntariness, and maintaining the litigation right for the disputants.It is important to explicate the notion of‘public morals’ identified as part of the first principle.Further concerns arise: is harmony embedded in Confucius and Taoist thought still a major concern in today’s Chinese mediation? Does the concept of face still hold an important position? Do the admonitions of Mao Zedong serve as guidelines? According to G.Li(2004) the major difference between traditional Chinese mediation and modern Chinese mediation lies in different morals and laws that underpin the execution of mediation.Both value harmonious social order, however the former is for the purpose of ruling while the latter is for the purpose of building the market economy, political democracy and a law governed society.The former used mandatory national level methods while the latter respects individual freedom and voluntariness.But the question of whether or not these ideals outlined by G.Li are practiced remains to be shown.
Some researchers have identified some key notions and terms that characterize Chinese mediation.
The People’s Mediation or mediation among the people (人民调解) is defined by G.Li (2004) as an activity hosted by the People’s Mediation Committee, and is based on the nation’s law,bylaws, rules, policies and social public morals.Accordingly, it is assumed that the disputants among the people are educated, and are reasonable so that both sides of the dispute will mutually forgive and compromise, discuss equally, and reach an agreement voluntarily.In this definition, we can see that persuasion and education are expected in the mediation.It is common to hear Chinese mediators say “let me work on him/her”(让我做做他/她的工作).This kind of remark is acceptable and even expected in Chinese mediation, while being an indication of bias in American mediation.Sometimes, one of the disputants would say to the mediator, “could you please persuade him/her?”(你能劝劝他/她吗)Cohen (1966) states that Confucianism highly valued an intermediary who was able to secure persuasion and compromise.
“Chinese mediation is informed by Chinese culture.Those dimensions of Chinese culture, including the concept of three, the trinity of lianmian, renqing, and guanxi, and the concepts of compromise, tolerance, pardon, and gentlemanhood, exerts a strong influence in shaping what Chinese mediation is and how it operates”(W.Jia, 2004, p.293).Mianzi (面子) is one way of conceptualizing face (G.Gao, 1998).According to G.Gao, there are two ways to conceptualize face—lian (face) and mian or mianzi(image).Mian or mianzi stands for the image that is emphasized in the United States: a reputation achieved through getting on in life,through success and ostentation”(Hu, 1944, p.45).Mian or mianzi concerns “public projection of oneself”(W.Jia, 2004 cites Ting-Toomey, 1988).Yu and Gu (1990) argue mian or mianzi and self-esteem are overlapping for Chinese.“One’s self-esteem is formed on the basis of others’ remarks”(W.Jia, 2004, p.469).Lian,the other side of face stipulates an individual’s morality traits.“he/she does not want her/his lian”means she/he has no moral concept or he/she has very low moral standards.This expression is usually used when the accused person does something disgraceful or degrading, usually disrupting the social norms and moralities.
Ting-Toomey (1988) argues that face is important in explaining the difference across cultures in conflict resolution,and concludes that people in collectivist cultures are more other face oriented than people in individualist cultures.W.Jia (2004)states that Chinese mediators would say, “for the sake of my mianzi, stop it”(p.291).If the mediator is a respected person in the community, she/he will use this strategy as the last resort because neither disputant can afford to offend the mediator.“Normally, in CM [Chinese mediation] the disputants will resolve or pretend to resolve the conflict due to the fear of losing mianzi or the wish to save the mianzi of the more powerful in front of the state”(W.Jia, 2004, p.291).(https://www.daowen.com)
Guanxi (connection or interrelation) is part of the trinity proposed by W.Jia (2004), and serves as the core concept in Chinese social life.Chinese mediator speak of “fu zi guan xi”(father and son relationship), “fu qi guan xi”(husband and wife relationship), “lin li guan xi”(neighbor and neighbor relationship), “shang xia ji guan xi”(superior and inferior relationship), etc.Guanxi is highly particularistic (Jin, 1088);there are certain rules and morals to define and guide each guanxi.These rules and morals are to be respected and not to be disturbed.All these guanxi are utilized to build one’s identity as well as social networks in Chinese society.Guanxi is probably a person’s most important resource in Chinese society.
“Guanxi is not only the context of mediation, but also a resource the mediator uses to prevent the disputants from going to extremes (i.e.either a complete avoidance of the conflict or a sheer litigation).On the other hand, mediation also functions to repair the damage of guanxi between disputants in order to restore order and harmony”(W.Jia,p.294).
Ganqing (feelings) are measurement of guanxi (interrelation).As guanxi is built overtime, ganqing will increase gradually as if one were putting coins in a saving box.If a couple have very solid ganqing basis (感情基础), their guanxi must be good even though they might be fighting temporarily.In a divorce mediation, the mediator would say, “Your ganqing basis is very solid, therefore,it is very possible you will get back together”(你们感情基础很扎实, 所以和好的可能性还是很大的).
Renqin is used as “a favor”that the disputing parties do to the mediator to enhance the mianzi of the mediation.Chinese mediator might say, “Could you both do me a RenQin by taking one step back?”
“The concepts of compromise, tolerance, pardon and gentleman hood”are also reflected in mediation according to W.Jia (2004).The mediator often asks the disputants to tolerate the other party (包容对方) or to mutually forgive and tolerate each other (相互谅解相互包容).“Practicing self-restraint or self-discipline for continuous improvement is the most fundamental tenet fro cultivating oneself advocated by Chinese philosophers”(G.M.Chen, 2004, p.8).Tolerating and forgiving are part of this process; therefore, these virtues serve as the common ground in the mediation.
W.Jia (2004) argues that gentleman hood (君子) or sage hood(圣人) is “the symbols of moral authority that embody ideal Confucian personhood”(p.294).Education is an important part of cultivation in Chinese society, therefore, Chinese mediator would say, “you are an educated person (有文化的人)”to indicate that the disputant should be reasonable to make or accept a proposal or offer.This cultivated personhood also include being calm and not argumentative (心平气和), and respecting the elderly and love the little ones (尊老爱幼).
Finally, collectivism plays an important role in Chinese culture.Collectivism is defined by Hofstede (1980) and Triandis(1995) as value tendencies that put group rights and benefit over individual rights and benefit.Collectivism emphasizes solidarity(团结) and togetherness (共同).In collectivist culture, the in-group and out-group dimension is salient.For example, one would make sacrifices for one’s close in-group members.Leung and Lind (1986) find that Chinese are less likely to pursue conflict with ingroup members and more likely to pursue conflict with outgroup members than Americans.Therefore, when dealing with family conflict, the mediator would use family solidarity and togetherness to persuade the disputants to get along harmoniously and peacefully because they are all members of the same family or in-group.