"An Outline of Alternative Dispute Resolution: Origins, Techniques, and Regulations"

Written by XIONG Hao

Law Press 2024 Edition

About the Author:

 

Xiong Hao

Doctor of Laws from the University of Hong Kong, associate professor and assistant to the dean of Fudan University Law School, member of the Legal Anthropology Professional Committee of the Chinese Anthropology and Ethnology Research Association, director of the Legal Sociology Research Association of the Shanghai Law Society, mediator of the Singapore International Commercial Mediation Center, Harvard University Fulbright Visiting Scholar of the Law School, Shanghai Pujiang Scholar, and Shanghai Youth Model.

He has presided over six national, provincial and ministerial level scientific research projects and one national first-class undergraduate course. He has published two monographs and translated two books. He has published in "Jurist", "Legal System and Social Development", "Politics and Law" , "Legal and Business Research", "China Law Review", "Global Law Review", The China Review, China: An International Journal, Hong Kong Law Journal, Asian Journal of Law and Society and other domestic and foreign core journals published dozens of papers , the research results have twice won the second prize of Shanghai Philosophy Society Outstanding Achievements.

Wonderful book excerpts:

 

This article is excerpted from the introduction of "Outline of Non-litigation Dispute Resolution: Origin, Skill, Regulation" (pages 14-20). For ease of reading, footnotes are omitted. If you need to quote, please refer to the original text.

As far as China's ADR research is concerned, most Chinese scholars focus on mediation. If we make a rough summary, the relevant research can be divided into the following four types.

First, the interpretation of the preference for dispute resolution.

It is well known that, unlike Western society, Chinese society prefers to resolve conflicts and disputes in a non-confrontational way. The reasons for this preference have been summarized by previous studies as economic costs, cultural inertia, and political functions. In this type of research, social conflict and dispute resolution are often regarded as part of a larger economic foundation, legal and political structure, or cultural ecology. Scholars hope to explore the fundamental Chinese cultural and political roots through the path of conflict resolution mechanism.

Therefore, conflict resolution itself is not the focus of research. It is a key and a window. Scholars try to use it to outline the social diffusion of Confucian ethics, discover the specific methods of party mobilization, and gain insight into the real tentacles of modern state power taking root in the countryside and extending its control. They have thus established the so-called cultural interpretation, functional analysis, and power logic, three explanatory paradigms for China's social conflict resolution preferences.

Second, the policy debate on dispute resolution.

For a long time, my country has placed the judiciary at the center of the dispute resolution system. Therefore, for a long time in the past, the swings and disputes about dispute resolution policies were mainly focused on the courts. From the perspective of the judicial center, from the late 1990s to the early 21st century, with the principle of "rule of law" being included in the Constitution, the Supreme People's Court set professionalism as the basic policy proposition for dispute resolution. With the help of this policy, the people's awareness of rights and legal awareness has been further awakened, the number of lawsuits has increased sharply, and the number of mediations has decreased accordingly. At that time, "struggling for rights" became a value preference encouraged by the government, and even litigation became a new ideology.

In the early 21st century, especially after 2004, with the proposal of the idea of "socialist harmonious society", the concept of dispute resolution of mass justice returned. Responsive politics has been transformed into responsive justice in the judicial context - people's satisfaction, service in place, and mediation priority; model judges are the embodiment of moral models; take off the robe and go to the fields, think like Ma Xiwu, and be a good judge that satisfies the people - all these are endless.

Therefore, the concept of public justice became the backbone of China's dispute resolution thinking and practice during this period. Inevitably, the different orientations of the court's internal dispute resolution policies in different periods have created a tense relationship between "professionalism" and "public justice", which has also continuously triggered debates and discussions in the academic community.

Third, the legal regulation of dispute resolution.

This type of research focuses on the unified national law structure that dispute resolution should follow within the Chinese legal system, which is the basic research orientation of traditional normative jurisprudence. The issues involved include the nature and effectiveness of mediation agreements, litigation and mediation, legislative research from the People's Mediation Law to the Unified Mediation Law, and the domestic legalization of the Singapore Mediation Convention.

Fourth, the type study of dispute resolution.

The so-called type study is to divide the dispute resolution mechanism into specific types based on certain external characteristics, such as social mediation, lawyer mediation, administrative mediation, labor arbitration, social psychological intervention, etc. Based on this simple type division, the type study of the dispute resolution mechanism is carried out.

When we compare the relevant research in China with the world ADR research, it is not difficult to find that in theory, China's contemporary policy debate on mediation is similar to that of the West thirty or forty years ago. But the difference is that in addition to the conceptual debate, the world ADR research has fully entered the research topic centered on process, experience, and specific issues. It is true that the debate on the relationship between the development of ADR or diversified dispute resolution mechanisms and the rule of law and litigation system in the Chinese context is meaningful, but our research should definitely not be limited to this.

First, there is an excess of ideas and insufficient skills.

In theory, ADR can be regarded as an institutional arrangement that carries ideology, but ideology is only one of the contents of the ADR knowledge map. As a practical skill, there is still a lack of academic research on specific methods, techniques, and procedures that can be used to resolve disputes, which are not only based on individual experience summary, but also have social science significance, that is, to condense or summarize relevant skills with empirical research methods, so that they have universal value for case expansion.

In the construction and design of the ADR curriculum system, teaching dispute resolution methods with theoretical significance, constructing a fresh field of active learning and experiential learning (learn by doing), and developing a localized case library are important aspects that are rarely involved in my country's academic circles. This even makes ADR a theoretical course about the judicial system, and the skills acquisition and legal clinic functions with ADR characteristics have not been highlighted and played.

This also leads to the current ADR education being unable to cultivate professional legal talents who can adapt to the requirements of social development, have professional professional qualities, and master the ability to solve practical problems for the emerging field of non-litigation dispute resolution.

Second, with empirical research as the orientation, the process study and judicial behavior research on ADR are still weak.

It is not difficult to find that the previous research on China's ADR has focused on the theoretical and normative levels. This research focus has caused the previous ADR research to lack empirical intervention.

Can the art of dispute resolution be taught or learned? How should it be taught and learned? How to cultivate dispute resolution talents?

How to establish the competency standards and models of mediators that are in line with China's national conditions?

We still need to study these issues in depth, and we still need enough data, both qualitative and quantitative. As Marc Galanter emphasized: "We expect the systematic knowledge and institutional measures of judicial mediation to develop rapidly. But such knowledge (development) requires us to develop appropriate tools (measures) to understand and measure the process of judicial mediation and the quality of the results."

Third, ADR knowledge lacks a programmatic theory that goes beyond the normative center and legal doctrine.

From a realistic perspective, the diversified dispute resolution system has made great progress in my country over the past 20 years.

In the decision of the Fourth Plenary Session of the 19th CPC Central Committee, the Central Committee, starting from the principle of modernization of governance capacity and governance system, made a complete and clear outline of the connotation and extension of the governance system of social conflicts, and clearly pointed out that "the channels for expressing people's demands, coordinating interests, and protecting rights and interests should be unblocked and standardized, the petition system should be improved, the linkage work system of people's mediation, administrative mediation, and judicial mediation should be improved, the social psychological service system and crisis intervention mechanism should be improved, and the comprehensive mechanism for multi-dimensional prevention, mediation and resolution of social contradictions and disputes should be improved, and efforts should be made to resolve contradictions at the grassroots level." This shows that in the new era, a social conflict resolution system with complete supporting elements, integrated internal mechanisms, smooth legal structure and outstanding governance effectiveness is gradually taking shape.

However, from a theoretical perspective, although relevant research has also made rich achievements - for example, the "Non-litigation Procedure (ADR) Tutorial" compiled by Professor Fan Yu in the early 21st century has been published to the 4th edition. This is the earliest textbook in my country that systematically sorts out the knowledge and normative system of ADR. The book makes a detailed and comprehensive introduction to the conceptual scope, theoretical origin, normative system and mechanism arrangement of ADR, and is a milestone academic work. After that, Professor Liao Yongan further promoted the disciplinary development of ADR in China, and systematically introduced practical skills, a key dimension that has long been ignored by China's ADR education and research, into the discipline system of China's ADR, making the knowledge structure of China's ADR more complete.

However, overall, the normative and countermeasure-oriented colors of Chinese dispute resolution research are relatively strong, which may cause the efforts of contemporary China to construct and generate the ADR theoretical system to be limited by the statutory dispute resolution framework and diluted by countermeasure research.

For example, when studying typified disputes, our perspective will be involuntarily limited by the legal system, so we will study people's mediation, administrative mediation, lawyer mediation, labor disputes, consumer disputes, traffic accidents, medical disputes, etc.

These studies are certainly important, but other types of disputes that overflow the scope of existing procedural law, such as political-religious friction, ideological friction, ethnic conflict, intergenerational conflict, gender conflict, campus disputes, elderly dispute resolution, border cross-border disputes, etc., which are important and even major theoretical and practical issues outside the existing departmental law types and legal operation entity elements, are often unable to enter the research field of classic ADR. Following the norms and policies may make ADR research committed to norms and policies, reduce the possibility of constructing its own programmatic theory, and also shirk the possibility of constructing a better ideal picture of non-litigation dispute resolution through theory.

If we refer to foreign countries, in 2000, Morton Deutsch, the father of the American conflict resolution discipline, co-edited and republished the book The Handbook of Conflict Resolution: Theory and Practice with Eric C. Marcus and Peter T. Coleman.

As an important academic work that delves into the deep mechanism of conflict and conflict resolution and has a systematic theoretical depth, the book divides conflict resolution into seven important theoretical dimensions in terms of outline, namely interpersonal and intergroup processes, psychological and individual differences, creativity and opportunities, thorny challenges (such as violence, religion, values, human rights), culture, conflict resolution paths and the future.

It is not difficult to find that the author has very concisely summarized the theory of conflict and its resolution into four basic dimensions, namely: (1) individual dimension (such as psychological characteristics, individual differences); (2) structural dimension (environmental influence, cultural background, institutional arrangements, rule design); (3) interactive dimension (interpersonal process, interactive mechanism); (4) resolution dimension (win-win, creativity, opportunity, mechanism and method for dealing with difficult problems).

These four dimensions systematically and comprehensively support the basic theoretical spectrum of conflict resolution research, rather than falling into the trivial countermeasures research of specific rules, specific types, and specific policies.

Based on Chinese discourse, we can certainly not stick to Morton Deutsch's division, but the more fundamental task of contemporary Chinese dispute resolution research is to be rooted in Chinese experience and to construct a programmatic theory with Chinese characteristics that transcends the existing ADR framework of normative center and legal doctrine. It is to say goodbye to the big word analysis at the semantic and conceptual level, to say goodbye to piecemeal work and to say goodbye to the commercial state of non-litigation dispute resolution research. It is to gather the efforts of many academic colleagues and the ingenuity of interdisciplinary disciplines to construct an organic, programmatic theoretical framework with Chinese characteristics and high principles for China's dispute resolution mechanism.

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