The role of the law in Chinese judicial mediation: a case study

Abstract

Purpose

This paper aims to examine how the law may play a role in mediation by paying special attention to how the law is excluded from and included in the process of court mediation in China.

Design/methodology/approach

Hundred model court mediation cases selected by the Supreme People’s Court of China were analysed and reviewed.

Findings

The law is relevant in Chinese-style court mediation in four ways: first, judge-mediators are intended to use mediation to avoid resolving legal difficulties or challenges; second, judge-mediators consult the law to anticipate the losing party and the potential negative effects that might result from the adjudication; third, judge-mediators refer to the law to propose a mediation scheme or plan to guide the parties to settle; and fourth, judge-mediators would use the law as a bargaining chip in various ways to induce the parties to settle.

Research limitations/implications

Standards should be set out for the use of law in the mediation process to standardise judge-mediators’ actions, to ensure that the law is not used coercively to push settlement, which would undermine the parties’ self-determination in mediation.

Originality/value

This paper provides an original understanding of how law affects the process, the outcomes and, ultimately, the nature of settlements that parties achieve through court mediation in China. This study contributes to the literature that argues that ethical norms and legal standards should be set to direct those legal evaluations.

Citation

Lanfang, F. (2015), "The role of the law in Chinese judicial mediation: a case study", International Journal of Conflict Management, Vol. 26 No. 4, pp. 386-401. https://doi.org/10.1108/IJCMA-05-2014-0038