Tactic Five – Side Taking
One sidedness (patterns of address) – emphasize what one side is saying over the other.
In Chinese mediation, one sidedness as a mediator’s tactic is easily observable.He/she sides with one party and tries to persuade the other to accept the opponent’s points of view or offer.Contrary to the western ideal of neutrality, this tactic is the opposite of being neutral.How can the mediator achieve their goal by siding with one party, and how do they justify their position as a mediator if neutrality is violated? While many western scholars who have studied Chinese mediation tactics, and seen the lack of neutrality as a basic fault with the style, there are other considerations specific to Chinese culture, tradition and value systems.Chinese mediators have positional power, as they are usually involved in the community’s affairs or familiar with the community.They often carry out some investigation before the mediation session is held.As a result, they could come up with an agenda, plan or a sense of the justified position before the mediation begins and tries to persuade the disputants to accept the position during the mediation.This does not mean they will not adjust their positions or plans during the mediation.They sometimes will be flexible in order to accommodate the other disputant if their one-sided approach backfires.
The case of the dispute between the owners’ committee and the manager is an example of mediator’s one sidedness.In this mediation, the mediator, who is the head of the community office,and has been involved in the process of the making a seal for the owners’ committee, clearly states that she does not approve the making of a new seal.
(M – the mediator/ head of the community office ; S – the secretary of the community office; D1 – the director of the owners’ committee; D2 – the manager; D3 – assistant director of the owners’ committee; L – the lawyer)
D3: He, director Liang said that you must not make (a new one).I, I came to see you, and you said…
M: I don’t want you to make (a new one).I try my best to propose that…
…
S: Where is the second seal?
D3: The second seal, I have.
M: (The scripts on) this one (the second seal) are not complete, aren’t they? It is still not right.It probably will bring problem in the work.Heh heh, probably will involve.
D3: I think that seal has no serious problem.The mediator and the assistant director of the owners’committee confront each other on whether the second seal should be made and adopted.She expresses her knowledge of the situation and her objection clearly in her first speaking turn, and she points out the defect in the second seal in her second turn.To balance her position as a mediator, she also used less powerful speech in her second turn, reflected in the usage of “probably”twice, and the laugh “heh heh.”In the following excerpts, the director of the owners’ committee joined the mediator to condemn the assistant director’s adoption of the second seal.
M: We will take this seal (the first seal) to the Street Office.You said it is ineffective, and it is really not right,therefore, we cannot say whether it is effective or ineffective.
D1: Ineffective, how can (you) say it is ineffective? You cannot say such things about this problem.
M: Oh, you cannot say it (the first seal) is ineffective.
L: (You) look at this problem beyond its practical meaning,than it has, it is not balanced.This this misunderstanding,this.
D3: They used this seal (the first seal), and (it is) admitted.We are not saying that (we do) not admit it.It is that(need to be stamped with) another seal (the second seal)together.This is (my) meaning.
D2: It is impossible for me to use other seals.I have told you,I would assure you using my forty years’ party membership.
M: Which seal are you talking about? What did he use it for?
(noise)
D2: She said I stamped on blank paper and used it for bad purposes.Since we are following such reasoning, can we still work together?
(D2 stood up and left)
M: Hey, sit, sit.Still speaking here, why are you leaving?
D2: No common thinking/ground.
D3: No common thinking is no common thinking.(Whatever)
(noise)
The sudden departure of the manager marks his physical withdrawal from the mediation session.It sometimes happens in mediation sessions that one of the disputants leaves the session unexpectedly.In this case, the manager felt that both the mediator and even the director of the owners’ committee are on his side, and therefore, there is no need to argue any longer.Besides, he has something else to take care of and had to leave.With the mediator and only disputants from one side present, the mediation session had to end.The mediator and the assistant director of the owners’ committee continue to confront each other in the following excerpt:
D3: I have talked about these problems, so what else should I do to solve it? Just as what he said, admitted the fault.Once other people pointed out, “Bon, I used the seal,what can you do to me? You chop my hand?”This is the same reasoning.I have already said, “You go ahead handle it, you go ahead.”What else should I do?
M: No.You, just now, should not have said that you do not know what he used the seal for.You were hurting people.You really should not have said things like that.If you have to believe that he did it before, you can only say that if other people can present things… Do you have evidence? How could you say things like that?
D3: In this way, if we rent apartments to people, should we sign the contract? Of course we need to sign the contract.
L: …
M: I tell you except for using for this one, he has said that he did not use it elsewhere.Actually, you should not have continued your inquisition, not until you discover anything.Now, you have not, so you cannot say anything.“How can I believe you?”This is lack of fundamental trust.There has to be trust among people.(You) cannot doubt.
The mediator criticized the assistant director of the owners’committee by using “should not”three times, “cannot”once,coaching her with what she should have said and what is wrong with that, and asking “how could you say things like that?”She is not afraid to point out the fault of the assistant director and takes the side of the manager even after he has left.D3 thinks that the seal has some binding power, citing the case involving the renting of an apartment to people outside the neighborhood.In this way, D3’s claim has some justification and should not be totally dismissed.
In this case, the fight over whether or not the old seal should be rendered ineffective and what to do with stamping the document, it seems that all four people including, M, D1, D2 and L are trying to persuade D3 to stop considering her suspicions about the previous abuse of the seal and her distrust towards D2.L,offering a legal perspective, explains to her that the owners’committee is not a legal entity, therefore, the seal representing it does not have legal power and is not binding, and therefore the parties should not make a big deal out of it.It becomes clear that the fight is not about the seal when the mediation comes to this stage.Rather, it is about who has more power over who.D2 and D3 obviously are fighting over power.The seal is the symbol of it,even though it does not have much legal effect/power.It is still important to the members of the owners’ committee and the management section.This helps explain why, in spite of L’s repeated explanation about the limited legal effect of seal, D3 is still not persuaded to drop her “charge”against D2.
Throughout the mediation, the major conflict is between D2 and D3, all others people present are a third party mediator.M blames D3 of being not distrustful and for making a new seal at will.But no one is blaming D2 of being uncooperative in his management of the owners’ committee, his lack of communication with the committee, and his failure to abide by the rules made by the owner’ committee.Notice that D2 is hired for a very small salary to manage the affairs of the neighborhood, and his position is more akin to a volunteer manager.The lack of reward for his labors leads to his act of rebellion against the owners’ committee.It may be the case that the manager is acting as a paid agent of another group, perhaps the Railroad Bureau or the Institute,therefore, his allegiance is to the bureau or the institute, while the owners’ committee are elected by the residents of the neighborhood, who are retired members of the Railroad Institute.However, because the neighborhood is within the community, and is a subsidiary of the community, where M serves as the director,she has authority over the residents in the neighborhood.This situation is typical of Chinese society.In many instances, people’s work place is also their residential place.Political control is reflected in both work unit and the residential unit.
That M and the others do not support D3’s position and side instead with D2 most of the time is both confusing and intriguing.Perhaps it is that people are fed up with the level of political and organizational control even though residents elect members to the owners’ committee.The people’s dissatisfaction may stem from the committee’s efforts to exert some kind of hierarchical control through the rules/bylaws they make.There maybe a shift in psychological makeup of Chinese people.It may be that there is now a drive for individualism and autonomy, unfettered by government control.Equally possible is that this instance reflects the immediate situation; it is just a war over power, which does not lead to any substantial benefit for anybody at least from the perspective of M and L.If this is the case, then as long as they can appease the conflict and maintain stability within the community,they won’t bother to determine who is right or wrong.Stability, as a means to maximize economic development is the first priority of today’s Chinese society.Therefore anybody who creates chaos and disturbs stability and the peaceful life of the community should be ostracized or silenced.This is a reflection of the primacy of Confucius idea of harmony in conflict resolution taking precedence over the idea of the fight between classes from Maoism in this case.In the case of the wood dispute, the mediator(M) sides with the male villager (L) to persuade the female villager (C) to pay for his medical cost, in order to solve the conflict at the end of the mediation.
(M – the mediator; C – the female disputant; L – the male disputant)
M: …the only problem is the money problem.As far as I’m concerned, you should still follow the town government’s opinions, that is, we won’t concern too much about things other than the logs, which is 200 yuan, and the medical cost, 235 yuan.The other fees, like the fees at the village doctor’s and such doctors’, the town government will not bother to investigate it.What’s more, we don’t sanction it.Even if you go to the court, these of yours won’t be used, it can’t be sanctioned as evidence.So now,there are the 200 yuan for the woods and the 235 yuan for medical cost.Wang Qi’s family, then, should compensate 35 yuan.
C: This cost I will only pay 150…as for other things.
M: Just think about Wang Qi and his 100 yuan.Indeed his head is still bandaged.Indeed, both you and he were wounded.But his 120 yuan is not counted by us.
C: My back also hurts.It’s so painful, especially on these rainy days.His bandage is visible, while mine is invisible wound.
M: It will mainly depend on Wang Qi’s opinions.Yeah, we can only talk so much about the town government’s opinions.
L: As for me, I’ll follow the government’s investigation to deal with it.Let’s discuss about it and make concessions.If everybody makes a fuss out of it, then just let whatever should be done be done.
The mediator has been talking about the result of the township government’s investigation from the very beginning of the mediation.She has been trying to persuade the female villager to accept their decision that the woods belong to the male villager.So the purpose of this mediation is about compensation or the chopped trees and the medical cost that resulted from their physical fight.Note that the mediator disagrees with the female villager’s argument against the decision, but says, “it will mainly depend on Qi Liu’s opinions.”The male villager, Wang Qi, also contributes his decision to the township’s investigation.He knows that the township will support his ownership of the woods,therefore, he claims, “let whatever should be done be done.”In this mediation, the mediator sides with the male villager from the very beginning based on the investigation by the township government prior to the mediation.
In the mediation of the dispute over the adult child’s support of his elderly parents, a similar situation occurs in the mediation,making this feature of sidedness more salient.In this case, all the people except for the disputants in presence, including the officials, the personnel from the law office and the local mediator,side with the elderly father.Strategy three argues that sidedness can be present before mediation occurs.In this case, the mediator has an agenda from the very beginning of the mediation session,trying to persuade the son to accept his responsibilities and to support his parents.This mediator partisanship helps to explain why the son refuses to talk or cooperate at every stage of the mediation.He knows all the people have the same intention;persuading the son to change his mind.The mediation is more like an elaborated criticism session, attacking the son’s reasons for not supporting his parents.Therefore, the son knows that no matter what he says, neither his views nor his reasons will be accepted.
In the case of the pre-trial mediation of divorce settlement,the mediator sides with the husband to try to persuade the wife to accept the counter offer made by the husband, despite the wife’s complaints that the husband was not keeping his promises, and she refuses to accept the counter offer.The mediator’s reason is that WenQiang, the husband has already agreed to raise the child all by himself.Therefore, the wife should compromise and accept the husband’s counter offer of the divorce settlement fee.Note that the mediator begins to behave as the husband’s representative by speaking for him.Neutrality has not been taken into consideration by him in this case.This also helps to explain why he loses his authority in latter part of the case when the disputants holler at each other and do not wait for their turns to speak despite that the mediator constantly, tries unsuccessfully, to discipline them.Neutrality still plays a part in legitimizing the mediator’s power although Chinese mediators do not treat it as their central principle.
(M – the mediator; W – the wife; H – the husband)
M: …Actually it’s already quite a heavy burden for Wen Yun to raise the kid, right? Nowadays the cost of living alone is, as I’ve already said, 100 yuan.But you have to include the medical cost and education fee, right? The exact sum of the money is hard to work out, right? As a man,capable or whatever as he may be, he is now only a driver.It is unrealistic of you to insist that he have much money.He is working for other people, and is not a boss himself.He can possibly earn 100,000 or even more than a million yuan per year if he is a boss, can’t he? It is hard to say.He is after all just a driver…
…
W: You say that he cannot earn any money, then do you think I can? Just take a look at my expenditure during this period of time.I haven’t even got enough to eat.Not a single grain…
In the following excerpt, the wife asserts that the husband has some savings as joint property of their marriage, but the mediator defeats the possibility of finding the evidence for the existence of the savings.
W: Why don’t we have the savings? Last year he still…
M: Last year is no evidence for the existence for now.
… (quarrelling)
H: The court has consideration only for evidence,understand?(https://www.daowen.com)
M: You can get nowhere without evidence.The mediator continues to side with the husband to discredit the wife’s statement that the husband is still holding their common property.
… (quarrelling)
M: That you had the savings in the past doesn’t necessarily lead to that you still have it now, understand?
W: Why doesn’t the savings exist now?
M: Well, then where in the world is it?
… (quarrelling)
M: What if you still have the savings? I may look into it for you.Then what if you haven’t any?
W: It could be withdrawn.How can you find out?
M: Withdrawn, well…
W: Yes, yes, we still have the counterfoil.
M: On what is the money spent? Even if you did have the savings, it could be easily explained away that it was spent on something.No way to prove, understand? Now we should have…
… (quarrelling)
M: To find a reason is quite easy — on what has the money
been spent.The mediator indicates that there is no way to find out whether the husband still has their common property or not.He also says that the law is very serious and strict,which is in contradiction with his last statement that the husband could find any excuse to say that he spent all their common property.The mediator is using the law to try to persuade the wife not to bother with the common property which is held by the husband.
W: The law (should help me).
M: The law is serious and strict.
… (quarrelling)
W: I don’t even have a grain of rice.I own nothing.
M: All these many reasons you give are useless, we…The strategy of one sidedness is apparent in this excerpt.The mediator and husband are arguing with the wife,trying to defeat all her attempts to prove their joint property from the marriage is being kept from her.The wife’s response to the mediators alliance with the husband is to complain to the mediator about his approach.The previous passage highlights this interaction between the wife and the mediator.
W: At any rate you take side with him.Anyways, the kid, the kid…
M: Then how about that each of you share half of the payment?
… (quarrelling)
M: By what standard should you be paid tens of thousand? By what standard should he pay you tens of thousand? What support do you have?
W: …
M: He said hewould bring up the kid and you don’t need to share the allowance of the kid.Besides, hewill give you 4000 yuan so as to settle the dispute.
The mediator speaks for the husband, who needs to say anything further.Note that he uses “ren jia”(underlined he’s),the third person singular pronoun used to express the third party’s legitimacy or superiority instead of the ordinary “he”(ta).With both the husband and wife being present, the mediator is not afraid of using the third person singular pronoun to express the concern for the husband’s interest, and raise his status and power in the mediation.The judge’s favorable attitude toward the husband is apparent.
The wife complains that the mediator openly takes the husband’s side.The mediator’s attempts to persuade her makes the wife distrust him.She adopts an assertive speech style, which deviates from the expectations for a woman disputant in an effort to show her unwillingness to cooperate in the mediation.She would rather go to the courts to solve the problem even if it does not bring her any benefit.The mediator’s extreme strategy backfires.
H: Well, I talked to her before.She said that if the discussion does not work, we will wait for the judgment of the court.
W: That’s no problem.It should be of no problem if the court judges.
H: But have you thought it over…
W: Even if I don’t get a penny, I’d pay with my own expense.
H: Go ahead, go ahead if it pleases you.
M: Why do you bother to do so? Why bother?
… (quarrelling)
W: The more I get, the better.Whatever it may take.
M: Why aren’t you satisfied with the bit you can get?
Wife: I am satisfied with even nothing.Now I think it is…
… (quarrelling)
How much can a judge expressly tell the disputants about his judgment in mediation and to what extent should he/she disclose to one party about the other party’s bottom line after the“caucusing”? The case of the court mediation regarding the dispute over the wine money gives an example of judge’s strategy in this kind of situation.After caucusing with the defendant who had failed to pay back the money for the wine he bought from the plaintiff, he requests that the judge/mediator to not reveal all of the information to the plaintiff and help him persuade her to accept his offer.Will the judge help him? Is he siding with the defendant? The following excerpts are from the interval trial mediation on the wine payment dispute:
(Z – the defendant; M – the mediator; J – the plaintiff)
Z: OK.I remember that somebody came to ask about the apartment just several days ago.The apartment on BingJiang Road is worth 2000 yuan a square meter.I can sell the un-modeled apartment for 300,000 yuan or so.I can receive tens of thousand yuan for the remodeling.The least would be 350,000 yuan.After repaying Sister 150,000 yuan, I can still buy an apartment at other cheaper areas.Judge, you, later, don’t tell sister Zhang about my selling the apartment.I try to make her compromise on the interest and other fees, the rest of the money, I can use to do some small business temporarily.Wait until I receive the money from Henan,then I can do bigger business.
M: When do you mean to sell the apartment and pay off the debt?
Z: I estimate that it won’t take long, one or two months at most.
M: I will give you more time, leaving you more room.How about paying off the debt within one hundred days?
…
M: I can do some persuasion work for you, but cannot guarantee that she would agree or not, mainly it is up to the other party.I suggest, the issue of the court fee, you volunteer to pay for it.The other party seeing your sincerity, may compromise on other fees.I clearly tell you, if the court judges, according to the law, the fee spent on suing should be paid by the party that lost the case.No matter what, you have to pay for it.Your volunteering to pay for the court fee, not only makes you look good, but also doing a fake favor.
Z: OK, then.
The judge/mediator is trying to help the defendant make the plaintiff waive the fee voluntarily.He may not seem to follow the principle of neutrality in this case by siding with the defendant,but he is working with the goal of resolving the dispute through mediation in a realistic way instead of adjudication.In situations such as court mediations, the mediator/judge has much more power than mediators in an ordinary situation.The disputants appeal to the judge knowledge and authority, and usually trust that the judge has the best solution.Therefore, the tactic of one-sidedness is adopted more often to achieve a success in reaching an agreement outside adjudication.The underlined sentences by the defendant cast the judge into the role of a negotiator instead of a neutral third party, which is accepted by both the disputant and the judge.
Below is a portion of a conversation between the judge/mediator and the plaintiff in another caucus session.In the first part of this extract, the judge tries to tell the plaintiff what happened in the other caucus session with the defendant.The second part, starting with “I think…”is devoted to persuading the plaintiff to accept the defendant’s offer.
J: Zhang Meifeng, I talked with Zhao Fei during all this time.Some of his thoughts, now I pass on to you.Zhao Fei said that he thinks highly of you, you are a good friend,righteous, sympathizes with the weak, like to help people, and he thanks you for your long-term support.This time, he did not return your wine money on time,because he indeed did not receive the money from HeNan.He hopes you could forgive him this time.After this issue is resolved, he still wants to do business with you.I tried to persuade him with reason and move him with emotions.At last, he agrees, in a not very long time, to go all out,even if he had to sell his apartment, to repay the wine money.However, he proposed that you compromise on the interests and fees concerned.These are his opinions.I think Zhao Fei has already gone so far to (be willing to)sell his apartment to repay the debt.This proves that he is a responsible person, a reasonable person and a person worth getting along.After selling the house, he will face the difficulty of having no place to live, therefore, he hopes you could let him get away with the interest and the fees concerned.Of course, as for this lawsuit, from the materials enclosed in your indictment, you definitely will win.If the judges in the court close the case, the other party has the right to appeal.(We) don’t know when the next court will close the case.This will take some time.Payment after the judgment will also take some time.After the legal document comes to effect, if the other party does not carry out the decision,execution will also take some time.Besides, execution also is somewhat difficult.You should consider about these factors.Zhao Fei agrees to pay off the debt in a short term, and request you to compromise on the interest and other fees.Do you agree? If you agree, I will call him in and let you negotiate face to face.If you do not agree, the court will judge.Mediation and litigation,the pros and cons, I have talked about.In the end, which way you choose, you decide for yourself.
Z: Zhao Fei repays the wine money first.Other problems are easy to solve.Ask him to come in to negotiate with me to resolve (the conflict).
Persuasion from the judge is expected in this situation.As we can see from the excerpts above the judge tries to persuade the defendant to repay the wine money.Obviously, he did not pass on every word of his conversation with the defendant to the plaintiff,although he did expose the defendant’s intention to sell his apartment against the defendant’s request.However, he frames it as if to show the defendant’s strong intention to repay the money,and thus to solve the problem rather perform this act as a way for the defendant to bring about enough money to make the payment.In this way, it is supposed that the defendant is more likely to be moved by this gesture, and demand less from the plaintiff.He tells the plaintiff what the real decision of the court will be like,but he also points out that there will be more trouble following the trial if it takes place, such as the defendant’s appealing to the higher level court, and the execution of the decision of the court.Is the tactical use of sidedness in this case an effort by the judge to persuade the plaintiff to accept the terms offered by the defendant, and not pursue further legal actions? In framing in the speech to the plaintiff, the judge presents the argument that the plaintiff could receive more money from the court judgment than from the mediation agreement, but there is greater time and trouble involved in further legal action may not be worth such extended efforts.Therefore, the answer is yes; the judge does side with the defendant, on the condition that the money owed will be paid within 100 days without interest.The judge achieved his goal of resolving the conflict within the mediation, thus bringing to bear all the benefits that a mediation has, notably,that the solution presented in the mediation is easier to accept and execute; the relationship is not completely ruined, and no one’s face is hurt too badly.Therefore, in the long run, this conditional one-sidedness in the mediation achieves a better result than by pursuing justice in through litigation.
In both caucus sessions, the judge makes clear that it is the disputants’ decision whether to not accept the mediation solution.This comment has two functions: The first is to balance the tactic of one-sidedness; and the second is to highlight the characteristic of mediation, i.e.voluntariness.The strength of the mediation over the litigation has been reflected in this case, that is, win-win solution and voluntary agreement, which leads to better mutual understanding, restored stability, and a better chance of carrying out the agreement.