摘要
Chinese dispute resolution procedures, especially mediation, have long been perhaps the single feature of the Chinese legal system most extensively studied in the West. In part, this is because the Chinese government has permitted the flow abroad of a great deal of informa- tion about dispute resolution institutions other than courts. In the United States in particular, interest in Chinese methods has grown along with the interest in alternative dispute resolution (ADR) in general Even the former Chief Justice of the United States Supreme Court, Warren Burger, has expressed his admiration of Chinese mediation institutions.
Just as most of the Western studies on Chinese dispute resolution institutions have concentrated on mediation, so have they also tended to accept that the Chinese procedure translated as “mediation” (tiaojie) is roughly comparable to what we understand by the English term: that is, a procedure whereby a third party attempts to bring disputing parties to a voluntary settlement of their dispute. Both Chinese and Western commentators are usually aware of evidence that mediators often pressure or even coerce parties to accept a suggested settlement, but this phenomenon is seen as aberrational and generally deplorable.
The purpose of this article is to suggest that this understanding of Chinese mediation is incomplete. The picture usually painted of mediation is far from wrong – the idea of mediation as the English term is commonly understood is an important strain in Chinese theory and practice, and the principle of voluntariness is constantly stressed both in academic commentary and in legislation. But that strain is only one strain, and it coexists with other strains that pull mediation as practiced in other, more coercive directions. Thus, the standard picture of mediation needs to be enriched by a recognition that some of its elements previously thought aberrational, such as coercion, may in fact be a vital part of a different, competing logic operating within Chinese mediation institutions. Thus, where this article uses “mediation” and cognate terms in reference to Chinese institutions and practices, they should be understood simply as rough-and-ready translations of tiaojie. Whether and to what extent tiaojie is “really” mediation is one of the questions the article aims to explore.