1.3 Western Literatures on Chinese Mediation
Western literature has often explored the topics of Chinese preference for mediation over litigation, as well as the role of neutrality by mediators in Chinese culture.Western literature refers to literature published in the United States and written in English.Some Chinese scholars in the United States (e.g.G.M.Chen, W.Jia, H.C.Chang) and American scholars (e.g.Cohen,Wall and Blum, Diamant) have published their studies on Chinese conflict management and mediation.These studies all count as western literature in this book.Additionally, “Chinese mediation”refers to mediation in mainland China in this book as opposed to any mediation carried out in Chinese language.In the following review, I will cover earliest western literature research on Chinese mediation, e.g.Lubman (1967) and Cohen (1966), as well as relatively recent and significant works including, Wall and Blum(1991), and Diamant (1997).
Cohen (1966) records that most of the civil disputes in China were resolved through extrajudicial mediation.He also infers from incomplete statistics that “there were two hundred thousand semi-official ‘People’s Mediation Committees’ in urban and rural residential areas, and their members annually dispose of millions of disputes”(p.1202).Lubman (1967) studied the Chinese People’s Mediation Committees, and found that mediators in the urban areas tend to be politically active homemakers, while mediators in rural areas are closely linked to the local officials.The committees had extensive authority and autonomy although were still responsible to the local court system (Crocket and Gleicher,1978).
A more recent study of Chinese mediation was conducted in 1988 by Wall and Blum (1991).They interviewed 100 street committee mediators from Nanjing, the capital city of Jiangsu province, asking them to report on the last successful intrafamily mediation and the last unsuccessful intrafamily mediation in which they served as mediator.In this way, the researcher could have a more up-to-date story accounts from the mediators.They summarized the interview report and came up with the techniques and strategies that Chinese mediators could adopt in their mediation.They confirmed that “Chinese mediations resemble those in preindustrialized societies (Merry, 1989) and differ in very many aspects from U.S.mediation”(p.8).The authors assume that for the Chinese people, mediation is a part of their daily life,as opposed to Americans, for whom mediation is an exception to the norm.Part of this difference in perception is based on semantic and functional differences between Chinese mediation and western mediation (W.Jia, 2004).In English, the term mediation is derived from the Latin “mediare”, which means “to halve, to be in the middle”(Wall and Blum, 1991, p.1).In Chinese,mediation (调解) literally means to adjust and to resolve.W.Jia(2004) argues that the Chinese take conflict as a threat to harmony in interpersonal communication and the society.However,litigation or negotiation presents a potential face loss and face-to-face confrontation, which are unacceptable to the Confucius gentleman hood doctrine.Therefore, mediation serves as the preferred way to restore harmony through an intermediary before a true conflict arises.“Mediation is the primary method of conflict resolution in China, the world’s most populous nation.Not only is it used extensively there; it seems to work.The mediators’ responses in this study indicated that 85% of the disputes in China are resolved through mediation”(Wall and Blum,1990, p.118).On the other hand, in American culture, conflict is treated as an inevitable, necessary and on-going process in any relationship.Furthermore, personal rights and freedom are highly respected in the US society, and litigation and negotiation are acceptable means of asserting these liberties.Therefore, the mediation in the US is an alternative way to litigation and negotiation, and it is a way to manage the conflict rather than resolve the conflict.(https://www.daowen.com)
However, Diamant (2000), in his qualitative study on Chinese mediation, challenges Wall and Blum’s (1991) observations and the results of their research.He carried out studies in 1993 and 1994,and again in 1997 and 1999 during which, he interviewed judges,mediators and bureaucrats in both urban and rural archives in China.He argues that Confucianism and its culture of harmony and conformity (和合文化) do not play as important role in Chinese conflict resolution as Wall and Blum argue.“We now know that orthodox Confucianism was not influential to the same degree throughout the policy and that local elites used a variety of strategies to manage conflict and maintain domination”(Diamant,2000, cites from Perry 1980, 1985; Esherick & Rankin 1990).He also argues that Wall and Blum cannot generalize their findings to China or the Chinese because they only conduct their study in Nanjing, a city that is not even representative of urban China.He concludes that Wall and Blum’s study represents the “educated elite or the states desired methods of conflict resolution,”and that ordinary people use other ways mostly to resolve their conflict.There is regional, class, and gender differences in the way conflicts are resolved in China, and mediation is not the only way that the Chinese prefer to resolve conflict.Diamant states,“In short, in this article I challenge both the methodological and empirical findings on conflict resolution in China…I make an urgent plea for scholars engaged in comparative research on this subject who skillfully use quantitative methods to be more attentive to the qualitative side of the research, particularly by disaggregating concepts, such as ‘state,’ ‘society,’‘Confucianism,’ ‘Asians,’ and so forth.Such concepts are simply too large and unwieldy to be very useful for analysis”(p.524).
Nevertheless, there is general agreement (Diamant, 2000;Donohue, 1985; Merry, 1982; Wall & Blum, 1991) that when mediation does occur, the mediator in China is much more active in determining the outcome of a dispute than would be the case in the United States.By their own account, mediators are likely to engage in their own fact-finding rather than relying simply on what the disputants say during the session.They report a willingness to scold, criticize, counsel, challenge, warn, and advise disputants to an extent that would be unheard among even the most active American mediators (Wall & Blum, 1991).Chinese mediators will bring other parties into the mediation sessions as persuasive resources, will employ their own personal knowledge of disputants and relationships with them to pressure disputants into settlements, and seem willing to disregard disputant values and opinions in favor of broader community norms and practices.It remains unclear; however, what is actually involved in these reported tactics.It would be interesting to find out how often,under what circumstances, and in what ways these differences from American mediator practices actually appear.How disputants react to such techniques would also be revealing.
Wall and Blum (1991) states that one difference between Chinese mediation and the mediation in the US is that neutrality is not a concern for the Chinese mediator while it is highly values in the US.The Chinese mediators take it as their duty to prevent the conflict from happening, and to resolve the conflict as soon as it happens.This is evident by the Chinese proverb: “Let big matters become small, and small matters disappear”(大事化小,小事化了).The Chinese mediators consider themselves to be“quasi arms of the law”, who “aggressively ‘persuade’ the disputants to return to a proper harmonious relationship”(Wall &Blum, 1991, p.18), and “the society’s monitors, who possess the right to prescribe the ingredients for harmony”(p.13).W.Jia(2004) states, “to compare with the west, a Chinese mediator plays a role that combines the functions of counselor, educator,pacifier, unifier, problem solver, arbitrator, negotiator, litigant,therapist, and consultant.In contrast, the primary job of a Western mediator is to ensure peaceful, constructive, and proactive communication through which disputants are expected to work out their own solutions to the conflict”(p.290).Besides mediation being the function and purpose of the Street Committee,Ren (1986) notes that mediation is also the process of arbitration and litigation in China.Clarke (1991) mentions that mediation in China has more and more adjudicative features as it is coercive and involves the adjudicatory institutions of the courts.Chia(2004) studied the traditional mediation in Chinese community in Singapore and found that the mediators are expected to act on behalf of the interest of the community due to the nature of the collectivist culture.Meanwhile, the community identity is also part of the disputants’ self identity.Thus, community interest is above self interest in mediation there, which replaces neutrality as the guiding principle.On the one hand, Chinese conflict resolution is influenced by tradition—Confucianism and its culture of harmony and conformity to some extent, and on the other hand, the government attempts to use mediation to prevent conflict from happening and to resolve it when it happens.This is done under the political condition of one-party government in its effort to manage the society with laws rather than traditional morality.With all this in mind, attention must be paid to the role of mediation in a China whose social and economic structure are changing.The best approach to understanding these influences on contemporary mediation is by examining actual transcripts, and evaluating the language that participants use.