5.1 Bringing about a Predetermined Outcome
Having a clear agenda/outcome/goal for the mediation is a common practice in Chinese mediation, which is well accepted and even expected by the disputants in China.We can observe this“way”in nine out of ten cases that I collected.All the strategies and techniques the mediator uses are mostly contributing to this agenda, which was formed during the earlier stage of the mediation, and often times, even after the fact gaining stage prior to the mediation.The mediator is like a god who has a plan or agenda, and knows the outcome or result of certain case, then tries to guide and persuade the disputants toward that direction.They usually have the power to make the agenda or plan happen,either by educating, coaching, coaxing, and giving orders to the disputants, or by taking measures to fix the problems that lie in the center of the dispute.Therefore, some call Chinese mediators“the fixers”, as shown in the literal translation of mediation in Chinese (调解) — to adjust and to resolve.
Prior to most mediations, the mediators will investigate the facts of the case, so when the true mediation sessions occur, they have already had the idea who is wrong and who is right, and sometimes how to solve the problem.The following excerpt is from the case of Shijiazhuang workplace injury.
At the very beginning the mediator tries to have both sides accept a one-time resolution.The following conversation occurs during the caucus with the plaintiff’s side.The mediator is mainly talking to the plaintiff’s attorney, who was authorized by the plaintiff side to represent them.
(M – the mediator; PR – the plaintiff representative)
M: …You think about if you want a one-time resolution if you want to solve it today, or…if you bring it to the court to mediate (mistake), in the trial, after confirmation, you can only report what has cost so far.The cost occurred later in mediation, as said just now, can be (reported) in the appeals.
PR: We know (that).
M: You have known about this, so you want to have one-time resolution, don’t you? You resolve it all at once, and you will consult the doctor, won’t you?About second surgery,about how much his second surgery will cost.You may have some number on your mind.That is your current expense plus the cost of next surgery.Now you should have a number on your mind, that is, how much money more do you need now if you resolve the problem once.Note how the mediator pushed the agenda of “one-time resolution”in the underlined sentence, by using statements as if it was a fact, while adding tag questions to express the tone of consultation with the plaintiff’s side.Tag questions are usually used by women or in less powerful speech style (NG & Bradac, 1993).The mediator in this conversation is a woman in her 40’s.She works as head of a street committee that is in charge of a community.The judge invited her to mediate the case prior to the trial in a mediation room at the court house.The following conversation occurs when the plaintiff’s attorney mentions that they don’t know how much the second surgery will cost.
M: That is, you have some brief estimation on the second surgery fee, on how much money approximately it will cost? Are we saying that we want one-time resolution?Other fees such as this second surgery fee, how much money do you need?
PR: This maintenance (noise).
M: 1000 yuan, isn’t it? How much money is the estimation?
P: ...
PR: We now, you just say, if we now have one-time resolution.
M: Yup, one-time resolution , if we have one-time resolution,you have an estimation of the fees.
PR: This originally has been three thousand yuan.
M:
PR: Over 3000 yuan, over three thousand yuan.This second surgery fee, this cannot be told.The hospital cannot estimate, and we cannot estimate either, but if now we want to have one-time resolution
M: There is a standard, yeah, there is a standard.
PR: There is a standard.It just means this.
(noise)
M: (Even if) you go to the court, it will not be judged to be given to you, (only) the actual cost that has occurred.If we now have one-time resolution , how much money do we need? Let’s talk about this.(noise)
In such kind of pre-trial mediation, the disputants have two choices in terms of which way they want to use to solve the dispute —court trial and mediation.Usually, for the sake of efficiency, the mediator prefers one-time mediation.In this case, the mediator keeps pushing for one-time resolution by repeating the phrase(underlined in the transcript).When the plaintiff’s representative argues that they still have a second surgery to go through and other fees to include, the mediator simply cuts his speech by saying that “there is a standard”(i.e.an estimation of the cost),then informs them that the judicial resolution won’t be more favorable to them than mediation so that to urge them to resolve the conflict through mediation.In a conversation, usually the speakers will wait for their turns to speak, however, in this excerpt, the mediator interrupts the turn by the plaintiff’s representative.Violating the turn taking rule of a conversation and showing her knowledge about the legal process put the mediator in the position of the authority in the mediation.
In the case of Shijiazhuang pre-trial divorce mediation, after verifying each party’s personal information, the mediator uses the old saying “one would rather tear down a temple than break up a marriage”to educate both parties to give their marriage a chance in order to stop them from getting a divorce.She points out that the husband should be more active in the process of making up — the norm existing in Chinese romantic relationship.She also promises that she would try her best to make both parties reconcile.Obviously, divorce is not a desired result of this mediation.This can be seen from the following speech excerpted from the very beginning of the mediation.The mediator made the following speech:
“…(if) There are possibilities, we will still…whatever it takes,to mediate in the direction of getting restored; (If) we feel that…uh…there is no possibility, if both of you feel that there is no possibilities, then we will…see, all right?”
This excerpt includes two conditional sentences.The mediator obviously do not favor the condition that “there is no possibility”of restoring the relationship.She showed more hesitation (i.e.“…uh…”and “we will…see”) when talking about this alternative.By emphasizing one option over the other, the mediator exposes her preference or agenda at the very beginning of the mediation before even hearing each side of the story despite that the couple has brought their divorce case to the court once.In most divorce mediation in China, the mediators still think that the first option is to bring both parties back together.Not until all the hope for restoring the relationship and every alternative to divorce is exhausted, would mediators consider giving up their attempt of restoration.Although, the mediators have become much more liberal in their practice since the new Marriage Law was issued (2001) which made divorce much easier than before.
“Divorce shall be granted if husband and wife both desire it.Both parties shall apply to the marriage registration office for divorce.The marriage registration office, after clearly establishing that divorce is desired by both parties and that appropriate arrangements have been made for the care of any children and the disposition of property, shall issue the divorce certificates”(Marriage Law of People’s Republic of China, Chapter IV, Article 31).
However, according to the law, if one party in the marriage does not want a divorce, mediation should be carried by certain organization or the couple can appeal to the court.Traditional view that marriage should not be broken still plays an important role in the mediator’s agenda for resolving divorce disputes.In this case, the husband was the one who did not want a divorce;however, the mediator found that there is some ambiguity in his thoughts from his speech, so she tried to push the husband to make up his mind that he does not want a divorce.The mediator carries out her agenda by encouraging the husband to make his mind and persist in his plan not to have a divorce.When the husband keeps complaining about the wife’s infidelity, the following conversation occurs.
(M – the mediator; H – the husband; W – the wife)
M: You can’t move her, and you don’t want a divorce,then…then what should be done? Uh? So, since you don’t want a divorce you have to use the no-divorce method.See, there are a lot of ways of no-divorce, right?
…
H: You have hurt me.You, as…as…as…if we speak of a family,you, if your wife, goes out and relies on another man, and doesn’t give you the money she earned, doesn’t allow you to hold the baby, what will you think about that?
M: Uh, then why don’t you just divorce her directly? Then just divorce her…
H: Uh… why should I divorce her?
M: Didn’t you say you won’t divorce her?
H: That depends on how we divorce?
M: Uh.To tell you the truth that you decide not to have a divorce is right, I think.You decide not to divorce…
The mediator tries to push the husband to make up his mind whether he wants a divorce or not.After she finds out about the husband’s ambiguous mind, she asks, “then why don’t you just divorce her…”The husband is cornered in this way but still did not realize that he needs to make a decision on this matter.He puts himself in a double bind situation; on the one hand, he does not want a divorce; on the other hand, he keeps complaining because he cannot forgive the wife’s infidelity.Then the mediator tries to help him make up his mind not to have a divorce.Her agenda is very clearly laid out at this point of the conversation.
The following conversation demonstrates the mediator’s plan even more clearly.She tries to make the husband see that if he does not want a divorce, he should forgive the wife and accept her merits as well as the weaknesses.
M: I keep asking you, you said you, no divorce, no divorce.For this no divorce, right? Didn’t you say no divorce? If you don’t accept divorce, aren’t you…
H: Just for this affair, I have already tolerated her for a long time.
M: I am only asking you that, if the court decides on no divorce again, can you tolerate her defects?
H: I can.
M: You can?
H: Yes.
M: OK.
H: Oh…
M: You can tolerate them.Let me try you.But, on the one hand, you tolerate her defects.But on many things, you should show what you need to show.For example, caring,you should…“I don’t plan to get a divorce then I should show her that I don’t plan to have a divorce…”
In another part of the conversation transcript, the husband says that he wants to stay in the marriage for the sake of the child and the elders.In fact, he also mentions that he is in his 40’s,indicating he may not have many chances of remarrying.The mediator is also trying to determine if the husband is using “no divorce”as a way to get back with his wife, or if he sincerely wants to restore the relationship.Note that in the conversation above, the mediator confirms her question “can you tolerate her defects?”by asking “you can?”She imposes all these questions in the conversation to make the husband think more rationally whether he really wants a “no divorce”and how to avoid a divorce.The mediator’s agenda is carried out in tactical moves in this way.The following excerpt also demonstrates that the mediator confirms with husband that he does not want a divorce and intends to tolerate the wife’s defects:
M: You are not…you also want.If you don’t want a divorce, I will just focus on this point.That is to say, I am helping you, right?
H: I, if I wanted a divorce, I would have sued.
M: Yeah.
H: Am I right? Isn’t this obvious? What are you trying to say? ...
M: OK.Whatever defects she has, you can tolerate her defects, right?
...
Note that the underlined turns uttered by the husband show that he has stopped being ambiguous in his speech about the decision of agreeing to the divorce or not.Then, the mediator moves on to the next step.In the last line, the mediator uses tag question to make the suggestion to the husband — that he should tolerate the wife if he does not want a divorce.
The following conversation follows through the mediator’s agenda:
...
M: Aha ha, that’s why I was asking you, if you insist on no divorce, no divorce, then we will try to work on her, see whether we can convince her.If you insist…”(https://www.daowen.com)
…
M: Oh.Ding Jian[1], you can tolerate her defects.It shows your manly… disposition.On the other hand, It’s that,when you want to tolerate her, you should also have the methods of tolerance, you should have methods to tolerate her.
…
M: OK.So, if you don’t want a divorce, you have to say something.You should, after getting off work, follow her to Zhengding.Just go ahead at any cost, you get into her room.You are trying to save this family, right? So, you should take this measure.OK, now I know about the things you are trying to say.But, sometimes, your own intuition (is not correct) and you have to see by yourself.Sometimes, your own intuition is not completely correct.Also, the gossips that reach your ear, don’t listen.If you listen, it’s only harmful to your family, no good.Just remember this minor point, OK?
…
The mediator tries to persuade the husband to tolerate the wife’s defects as she heard a lot of complaint from the husband.She coaches the husband how to save the marriage.She reinforces the idea/logic that he does not want a divorce, therefore, he needs to take the initiative to save the marriage and to win the wife and her affections back.It is the husband’s responsibility to take the initiative according to both the logic and the norms.The mediator’s role has shifted to a fixer and marriage counselor,helping the husband to carry out the plan of restoring his relationship with the wife, which is also part of the mediator’s agenda.
Note the underlined words “work on”and “convince”which are commonly used by the Chinese mediators.It is acceptable in Chinese mediation for the mediator to persuade the disputants so that the conflict will be resolved in line with the mediator’s agenda.This idea seems very different from American mediation guideline of being neutral.In fact, most of the mediators that I conducted interviewed emphasized “being fair,”“conforming to the law”or “justice”rather than “being neutral.”In the following transcript, the mediator is trying to “work on”the wife:
M: Oh, well…what you mean is that, his behavior, you can not tolerate…
W: Absolutely not!
M: No more…
W: No.
M: No possibilities, right? Then it comes here…just let it be.Ask Ding Jian to come in.Then we leave it like this.
W: Yup.
M: If you feel that, you can tolerate each other, the other party can tolerate you, and you can tolerate the other party, then we will leave it like this.
W: Never again…
M: Never again, right?
W: Uh, yup.He has dragged me along for one or two years.I could have lived one or two years’ quiet life.
M: Also not thinking for your child, or your families,nothing…
W: My child, I must…
M: Only…only think for yourself?
W: No.
M: You are not good to me, and then I will divorce you? The wound to the child…let her suffer?
In this excerpt, the mediator finds out that the wife has made up her mind to have a divorce and not to tolerate the husband anymore.She repeats what the wife says in her previous turn to question her determination of having a divorce.Note that the wife used “absolutely not,”“no,”“never again,”and “yup”to answer the mediator.This speech style violates the social norm for women’s powerless speech which features uncertainty markers(e.g.tag questions, hesitations, rising tone).This violation demonstrates her strong determination.
In Chinese culture, mutual understanding and tolerance are valued the most in a marriage.If one party stops tolerating the other, the marriage is facing the danger of breaking up.Throughout this mediation the term “tolerate”has been mentioned many times by the mediator.If the husband does not want a divorce, he should try to tolerate the wife’s defects, and if the wife refuses to tolerate the husband, she has made up her mind to break up the marriage.The mediator is using this concept of tolerance as a criterion to test each party’s sincerity and determination in this divorce case, and as a requirement for both parties in a marriage to educate them.The root of this value of tolerance can be traced back to the Buddhist teaching of endurance of suffering, and indirectly to the Confucius teaching of keeping harmonious relationship.This is one of the values Chinese mediators commonly use to educate the disputants in their mediation.Note that the mediator mostly uses questions instead of declaratives and imperatives.This is an indirect way to make suggestions and to challenge the other party’s stance.The mediator obviously does not favor divorce; however, she cannot force her agenda on the wife as a mediator.At the end, the mediator tries to appeal to the woman’s emotions by arousing the woman’s conscience as a mother, “even if your child suffers, you,as her mother, wouldn’t care?”
The following excerpt is an example of a more direct and stronger persuasion made by the mediator:
M: This time, give him another chance.
W: Nope! I have given him half a year.Even if he regrets…
M: Give him another one, one more.
W: Nope!
M: One…one more.
W: No.
M: If he does something wrong again, then we will see.
W: I have given it to him already.
M: Another one.
W: I have given it to him, and I have given many chances to him, no use!
The mediator makes one last attempt to persuade the wife to give the husband another chance (the underlined phrases), almost begging on behalf of the husband.In the short excerpt, she asks wife to give the husband another chance four times, but is refused squarely by the wife.From this mediation session, we can observe the agenda set up by the mediator — bringing both parties back to their marriage.In order to achieve this goal, she “works on”both parties, trying to clarify each party’s stance and move both to the agenda as close as possible.
Another case is about conflict over a child’s injury caused by his uncle in law.The child’s mother disagrees with the child’s grandma — her mother in law as to who should be responsible for the child’s medical cost.The mediator is an official from the local community office.After hearing the stories from both sides, she immediately airs her points of view on the conflict:
(M – the mediator; W – the mother; G – the grandma)
M: …The problem is that, now the kid has already been sick,then that is, you as the mother, because you gave birth to and raised him, you have responsibility.You should still pick up the kid.
…
M: …Then, Wang Fengyi, you as the kid’s mother, you certainly should pay the economic cost.The 5000 yuan from Luzhou Hospital should be covered by you.
…
The mediator’s role is a fixer in this mediation.She has the positional power to recruit volunteer labors to take care of the child at hospital and to apply for financial subsidies for the mother.This gives her more authority other than the power entrusted by the disputants to settle the conflict.The underlined phrases present her authority in giving solution to the conflict.In the conversation excerpt below, she simply dismisses the mother’s protest against paying for the child’s medical cost (underlined sentence).She promises to apply for the financial subsidies and provide the volunteer support.
M: 9000 yuan, his uncle in law has paid more than 4000 yuan,then this 5000 yuan, you pay.Then going to ZiGong Hospital, You, the grandpa and grandma jointly pay for the cost.En, as for the nursing, it is up to the Community to organize the volunteers, including escorting and nursing.Then, as for your special condition, no stable economic income, plus healing your kid’s sickness, you need a big sum of money, therefore, we the Community,implementing the national policy of protecting the living of the people with lower income, will make every effort to apply for the protection money.What do you say?
W: I have to think about it.Each one pays half.
M: This problem, you should have no doubt about it…The mother has the least power among the three in the mediation.Therefore, her language has the most hedges.She asks her mother in law directly to share her burden after the mediator dismissed her request.The following conversation tells us about the hierarchy in this mediation more clearly.The turn taking norm in this mediation can be largely summarized as follows: The mediator can initiate turns to speak to either disputant;but the two disputants cannot initiate turns with the mediator; the child’s mother will respond to both the mediator and her mother in law, but only initiate turns to her mother in law; the child’s grandma (the woman’s mother in law) can initiate turns to her daughter in law but not the mediator.She responds to both.
W: Right away, entering hospital needs money.Where do I have money? Anyways, you give some money.When entering hospital, we will need to pay the pre-fee.Mum,why don’t you
G: I don’t have any money, Aya.
W: Now I tell you, I still don’t have money.It is that I still agree to follow the Community’s mediation step by step.But, mum, how about you giving 5000 yuan temporarily?
M: This problem, you all should face and resolve it together.Then, you as the kid’s grandma, then can you think of a way? After all, you have some pension money.Can you think of a way? How will it go? You provide some money,lend 5000 yuan first.This kid’s cost going to Zigong Hospital.Lend 5000 yuan to pay the cost first, OK?
W: Please, mum? Now.
G: OK then, I will lend 5000 yuan, and hand it over to the director.
When the child’s mother insists requesting her mother in law to pay the 5000 yuan medical cost, the mediator also turns to her mother in law to try to persuade her to share some burden as the grandma of the kid.The underlined sentences in the excerpt tell us that both the mother and her mother in law are willing to submit to the mediator, the director of the community office, and to admit her authority in the mediation.Therefore, the mediator could implement her proposal without much persuasion work and effort.
In cases where the mediators are local officials, we can observe a pattern of mediation in which the mediator has some positional power over the disputants.The pattern usually starts with the mediator making a proposal for resolution immediately after hearing both sides of the story.The proposal is clear about who should pay who, how much should be paid, and who has the most responsibility.He/ She would usually try every means to push the proposal onto one side of the disputants by ignoring the protest from him/her, or by offering help to fix the problem.If the strategy backfires and the disputant leaves or passively refuses to agree to the solution by putting his/her final offer, the mediator would turn to the other disputant to try to make him/her compromise to meet each other in the middle.The agenda is set at an early stage of mediation by the mediator’s overt and explicit verbal proposal.However as mediations proceed, the mediator has to be flexible at latter stages of the mediation in order to get both party agree to a solution.This could be part of the agenda as well.
In court mediations, i.e.pre-trial and mid-trial mediations,the judges would go to great lengths to try to get the disputants to settle their conflict in mediation rather than in the trial.In China litigation will always be the last resort, therefore, even if both parties go to court and the trial has already started, the opportunity for the parties to go into mediation remains available.Obviously this is not meant to save the court case load because the trial is already in progress, and the judge has already come up with judgment for the case on his mind.This kind of court mediation is meant to avoid the final litigation record to save people’s face.If the dispute is resolved within mediation,nobody’s feelings will be hurt as much as from the litigation record.Another reason is that the parties will have opportunity to meet each other in the middle — a win-win situation.For similar examples of other cases, please see Appendix A.
This guiding principle serves as the foundation for all other strategies discussed in this book.Implementing a decision made by the mediator(s) rather than facilitating the agreement reached by the disputants themselves explains why Chinese mediators could use such powerful persuasion strategies as altercasting, educating,blaming and criticizing.This agenda driven principle argues that the neutrality ideal in western mediation could not be a reality for Chinese mediation.
In the following subsections, I am going to describe four tactics with example excerpts.All these tactics are characteristic of Chinese mediation and illustrate the underlying principles discussed above as well as Chinese traditions and cultures.