[author]Peng Xiaolong

[content]

Peng Xiaolong: "Fengqiao Experience" and the Structural Changes of Contemporary Chinese Dispute Resolution Mechanisms

 

*Author: Peng Xiaolong, Associate Professor, School of Law, Renmin University of China

 

Summary: As the concept of diversified dispute resolution gradually becomes a consensus, the structural relationship of various dispute resolution mechanisms has become the focus of current legal practice and theoretical research. The 60 year development of the 'Fengqiao Experience' has always focused on the overall structure of dispute resolution mechanisms, providing a basic outline and rich materials for understanding these structural relationships. Based on the "Fengqiao Experience" and combined with the development of social theory, a structural theory of dispute resolution mechanism can be extracted. This theory advocates that the structure of dispute resolution mechanisms is the result of state intervention, social self-sufficiency, and their interaction with various mechanisms. It can not only explain the formation and changes of China's dispute resolution mechanism structure, the structural tension in recent years, and the overall thinking and strategic focus of structural adjustment since the new era, but also demonstrate how the "Fengqiao Experience" has been enduring, widely applicable, and elevated from a local experience to a global requirement, demonstrating the significant significance of adhering to and developing the "Fengqiao Experience" in the new era.

 

Keywords: Fengqiao Experience; Diversified resolution of disputes; Structure of dispute resolution mechanism; State intervention; social governance

 

1. Introduction

 

The "Fengqiao Experience" originated in Zhuji, Zhejiang in the 1960s, and its connotation has been continuously enriched and developed with the changes of the times. However, whether it is the "relying on and mobilizing the masses, insisting on resolving conflicts on the spot" during the socialist construction period, the "small matters not leaving the village, big matters not leaving the town, and conflicts not being handed over, resolving them on the spot" since the reform and opening up, or as a grassroots social governance method since the new era, mobilizing and integrating various forces under the leadership of the Party to resolve conflicts has always been the unchanged mainline of the "Fengqiao Experience", which contains unremitting exploration of the structural relationship of various dispute resolution mechanisms. Since the Fourth Plenary Session of the 19th Central Committee of the Communist Party of China, adhering to and developing the "Fengqiao Experience" in the new era has become a basic requirement for improving the effective mechanism for handling internal contradictions among the people in the new situation and improving the comprehensive mechanism for preventing and mediating social conflicts and disputes. From this perspective, perhaps only by combining the formation and changes of the contemporary Chinese dispute resolution mechanism structure can we more specifically grasp the "changes" and "unchanged" of the "Fengqiao experience" in the past 60 years, and better adhere to and develop the "Fengqiao experience" in the new era.

 

Linking the 'Fengqiao Experience' with the structure of dispute resolution mechanisms has urgent practical significance at present. Since the new era, China has entered a new stage of structural adjustment in dispute resolution mechanisms. The Fourth Plenary Session of the 18th Central Committee of the Communist Party of China has for the first time clarified the structural requirements for the "organic connection and mutual coordination" of diversified dispute resolution mechanisms. On October 13, 2015, the 17th meeting of the Central Leading Group for Comprehensively Deepening Reform approved the "Opinions on Improving the Mechanism for Diversified Resolution of Contradictions and Disputes", proposing to "establish and improve an organic, coordinated, efficient and convenient mechanism for diversified resolution of contradictions and disputes". The Supreme People's Court and other departments, as well as Shandong, Heilongjiang, Fujian, Anhui, Sichuan, Jilin, Hainan, Liaoning, Shanghai, Yunnan, Xiamen, Wuhan, Shenzhen, Hangzhou and other places, have successively issued relevant normative documents and local regulations. Obviously, the structure of dispute resolution mechanisms is not an arbitrary combination of various mechanisms. As a grassroots social governance method, the "Fengqiao Experience" contains various dispute resolution mechanisms and their complex relationships with national capacity, social structure, historical traditions, public psychology, and other factors. Perhaps only by carefully summarizing the 'Fengqiao Experience' can we better clarify the tasks, priorities, and conditions for adjusting the structure of the dispute resolution mechanism, and promote its development towards a direction that is in line with China's reality and sustainable.

 

From existing research, both the "Fengqiao Experience" and the structure of dispute resolution mechanisms have received high attention in recent years.   Unfortunately, although these studies consider conflict resolution as part of the "Fengqiao Experience", there is little discussion on the structure of dispute resolution mechanisms, and a lack of focus to observe and extract the governance logic, framework, and mechanism of the "Fengqiao Experience". As for the latter, with the diversification of dispute resolution becoming a social consensus since the 1990s, what kind of "diversified" structure to move towards has become the current focus of debate, including whether synchronous mechanisms such as reconciliation and mediation will weaken the litigation mechanism, as well as whether advancing non litigation dispute resolution (ADR) over time, as in the West, is like "thin people following fat people to lose weight". These debates have largely dominated discussions in recent years regarding issues such as the relationship between investigation and trial, large-scale mediation, judicial socialization, as well as systems such as judicial confirmation, small claims procedures, and pre mediation. However, they have rarely been combined with the various forces and complex relationships involved in the "Fengqiao Experience", and have basically remained at the operational level of the advantages, disadvantages, and integration of various dispute resolution mechanisms. In view of this, this article intends to provide a study on the mutual observation between the "Fengqiao Experience" and the structure of dispute resolution mechanisms. It not only focuses on expanding the understanding of the composition, changes, and current adjustments of the dispute resolution mechanism structure by combining various elements of the "Fengqiao Experience", but also strives to explore how the "Fengqiao Experience" has risen from a local experience to a global requirement and its original contribution from the structure of the dispute resolution mechanism.

 

2. Empirical observation on the structure of dispute resolution mechanism since the reform and opening up

 

Dispute resolution has always been a difficult problem in evaluation and analysis. The author attempts to explore the correlation between objective indicators and subjective evaluation. Individually speaking, these indicators and evaluations have certain shortcomings, but they complement and validate each other, and can to some extent present the structural status of China's dispute resolution mechanism in recent years.

 

2.1 Objective indicators: statistical data on people's mediation, arbitration, and civil trials

 

Due to the fact that not all dispute resolution mechanisms have statistical channels, non institutionalized mediation and negotiation are even more difficult to track, and objective indicators often only directly reflect the operation of certain institutionalized mechanisms. Given that people's mediation, arbitration, and civil trial are the three main channels for dispute resolution, and are the most typical mechanisms from informal to formal, this section analyzes them based on relevant national statistical data from 1981 to 2021.

 

图 1 人民调解民间纠纷数量、仲裁收案量与民事一审收案量（1981—2021年）

 

图 2 全国法院民事一审上诉率、调（撤）率、裁判错误率与二审调解率（1981—2021年）

 

Firstly, in terms of the number of disputes resolved (Figure 1), there is an overall trend of formal mechanisms, especially litigation mechanisms, becoming increasingly important. The average annual growth rate of civil first instance cases is as high as 8.3%. The number of arbitration cases has increased, but in terms of absolute quantity and its ratio to litigation and mediation, only a very small portion of disputes have been resolved. The role of people's mediation is not limited to post dispute resolution, but also includes pre prevention and grassroots governance. A comprehensive analysis still needs to be supplemented by subjective evaluation. However, in the sense that disputes have not been prevented, the number of civil disputes it handles has roughly undergone a U-shaped change in the past 40 years. The ratio of civil first instance cases received has continued to decline from nearly 12 times in 1981 to basically the same level in 1999. Although there have been fluctuations since then, it has dropped to about half of the number of civil first instance cases received by 2021. Specifically, without considering arbitration with a relatively small number of disputes, the number of cases received in civil trials and people's mediation shows four distinct ranges of change: the former continued to increase while the latter continued to decrease from 1981 to 2002, the overall trend of the two remained stable from 2002 to 2007, the two grew rapidly from 2007 to 2012, and since 2013, the former continued to surge while the latter slightly decreased.

 

Secondly, from the perspective of dispute resolution quality, limited by the availability of data and the gradual emergence of trials as the main mechanism for dispute resolution, Figure 2 demonstrates the effectiveness of the litigation mechanism through three indicators. (1) Appeal rate. Compared to various uncertain factors such as retrial, execution, and litigation related petitions, appeal is the legal procedural right of the parties involved. The appeal rate (the number of cases received in the second instance divided by the number of cases settled in the first instance after mediation and withdrawal) can reflect the overall effectiveness of the litigation mechanism more stably. (2) The error rate of first instance judgments. The parties' appeal is not solely due to issues with the quality of the judgment, but may also be based on their cognitive biases or practical considerations. Judicial policies such as mediation and withdrawal of lawsuits can also affect the appeal rate through changes in appealable cases. As an internal error correction mechanism of the program, the error rate of the first instance judgment (the number of cases remanded for retrial or revised in the second instance divided by the number of cases settled through mediation or withdrawal) can directly reflect the quality of the first instance judgment. (3) Second instance mediation rate. The second instance mediation rate is an important indicator that needs to be viewed dialectically. Second instance mediation means revising the first instance judgment, which may enhance the parties' expectations of appeal, but it does not completely negate the quality of the first instance judgment. In fact, if the facts are not clearly determined or the law is applied incorrectly, there is less room for compromise between the appellant and the respondent, and the possibility of second instance mediation will also be lower. Combining these three indicators, the effectiveness of the litigation mechanism presents three ranges of variation. Firstly, from 1981 to 2002, except for some fluctuations in earlier years, the appeal rate, first instance judgment error rate, and second instance mediation rate all significantly decreased, and the effectiveness of the litigation mechanism was evident. Secondly, from 2002 to 2012, the error rate of first instance judgments continued to decline, while the rate of civil appeals sharply increased. The quality of judgments improved while the effectiveness of dispute resolution weakened. The rapid increase in the mediation rate of the second instance during the same period not only provides a partial explanation for this abnormal phenomenon, but also indicates that many cases have no major problems with the judgment, but still cannot effectively absorb dissatisfaction. Thirdly, since 2012, the appeal rate has decreased from 25.7% to 20.5%, the error rate of first instance judgments has fluctuated between 3% and 4%, and the mediation rate of second instance has continued to decline to 7.6%.

 

It should be acknowledged that the above content can only roughly reflect the operation of institutionalized dispute resolution mechanisms, and cannot directly infer the structural relationships of these mechanisms. However, based on the correlation between quantity and quality, two hypotheses that need to be verified can be proposed. Firstly, the continuous weakening of non litigation mechanisms in terms of dispute resolution means that many disputes have not been prevented and resolved through these channels. This may be an important reason for the increasing burden of court cases, trial pressure, and the problem of "too many cases and too few people" in recent years. This may not only have a profound impact on the construction of modern judicial systems, but judges may also find it difficult to calmly interpret rules and absorb dissatisfaction through procedural operations. Secondly, the ability of litigation to absorb dissatisfaction needs to be improved, especially during the period from 2002 to 2012, which showed a weakening trend. Its role in confirming declaration rules, shaping expectations, and promoting independent negotiation is difficult to play, which may not provide reference and guarantee for the operation of other dispute resolution mechanisms, and even worsen their operating environment.

 

2.2 Subjective evaluation: the effectiveness evaluation of dispute resolution channels and civil justice

 

Objective data lays the foundation for evaluating the structure of dispute resolution mechanisms, but in addition to being unable to comprehensively cover various mechanisms, it may also underestimate or overestimate the role of private mechanisms. The former is mainly due to the difficulty in quantifying the dispute prevention role of various internal and non institutionalized mechanisms in society, while the latter is due to the increasingly diverse composition of people's mediation in recent years, especially including a large number of administrative mediation operations in its name. Relatively speaking, subjective evaluation, although mixed with complex factors such as personal emotions, directly characterizes the actual effects of various mechanisms in specific time and space, and can reflect people's comparative views on different mechanisms, which can to some extent compensate for the limitations of objective indicator analysis. As for the subjective evaluation error, it can be verified through objective indicators.  

 

  Although these surveys focus more on people's choices of dispute resolution channels, they also largely reflect people's biased attitudes towards different dispute resolution mechanisms. Among them, the first two urban and rural surveys were conducted at similar times, indicating a high level of satisfaction with internal mechanisms within units, mediation by village committees, and informal mechanisms such as family and neighbors, with administrative mechanisms being higher than judicial mechanisms. CGSS2006 shows that there have been some changes in the situation. When residents encounter disputes, the most preferred way to resolve them is to seek the government (63.77%), followed by going to court (16.05%), with a total of about 20% seeking other mechanisms.

表 1 2015—2019年“中国法治评估调查”解纷途径、民事司法的有效性评价

 

 

The indicator system for evaluating and investigating the rule of law in China maintains coherence, and the indicator related to this article is the effectiveness of dispute resolution channels. Considering that civil judicial evaluation usually includes three dimensions: fairness, efficiency, and convenience, the author reorganized relevant data according to the Equal Rights Law. From Table 1, it can be seen that this survey and objective indicator analysis can mutually confirm each other. On the one hand, the evaluation of the effectiveness of various mechanisms from 2015 to 2019 showed a similar sequence and the gap continued to widen, from high to low, including court litigation, administrative agency resolution, mediation by relevant parties, mutual consultation, and resort to force. Combining the first three surveys, it can be found that people are increasingly inclined towards formal mechanisms, especially litigation mechanisms, which support the objective indicators of changes in the number of disputes resolved and related analysis. On the other hand, since the 18th National Congress of the Communist Party of China, significant achievements have been made in vigorously promoting the reform of the judicial system, and civil justice has significantly improved in terms of fairness, efficiency, and convenience. However, in 2015, the positive rating rate for civil justice was only 24.5%, and the negative rating rate was as high as 35.3%. The subjective evaluation of non litigation, especially informal mechanisms, is relatively low, while the ability of formal mechanisms such as litigation to absorb dissatisfaction needs to be improved, thus verifying the two hypotheses proposed by objective indicator analysis.

 

2.3 The social system and structural tension of dispute resolution

 

For a long period of time, research on dispute resolution mainly focused on individual dispute resolution actions. Since the late 1970s, the structure of dispute resolution mechanisms has gradually received attention, especially the dispute pyramid model proposed by the "Civil Litigation Research Project" in the United States, which has laid the foundation for subsequent research to a certain extent. These studies often focus on the pinnacle of litigation, assuming a linear development of dispute resolution mechanisms from informal to formal. However, due to the diversity of interest demands, relationship patterns, and value concepts, various mechanisms have their own social foundations, advantages, and disadvantages, and institutional design and individual actions also have different preferences and choices. In recent years, many empirical studies have shown that various mechanisms do not have a fixed linear relationship, but rather exist in various forms of relationships such as competition, conflict, and cooperation, collectively forming a mutually constrained and interconnected social system. In this sense, the coexistence of multiple dispute resolution mechanisms is a social norm. Diversified dispute resolution is not a recognition or praise of this diversity, but rather a way to minimize the conflicts between various mechanisms and form a structure that ensures the individuality of each mechanism while achieving complementary functions, in order to meet the diverse needs of social governance and the freedom of choice of the parties involved.

 

By observing the structure of China's dispute resolution mechanism, although the operation of various mechanisms has significantly improved since the new era, the potential structural tension that may exist in recent years deserves high attention. On the one hand, the increasing weight of litigation in dispute resolution, the improvement of trial quality, and the high evaluation given to litigation, administrative and other mechanisms by people reflect the positive progress of the rule of law construction in recent years. However, in addition to the surge in case load, objective indicators such as appeal rate and subjective evaluations of effectiveness indicate that the recognition of the litigation mechanism still needs to be improved, making it difficult to provide sufficient reference and guarantee for social action, expectation shaping, and various informal negotiations and consultations. During this process, people form high expectations for the law and judiciary, which may even further weaken their conceptual identification with non litigation mechanisms. On the other hand, the decreasing weight of people's mediation in dispute resolution, the need to enhance the role of arbitration, and the low evaluation of the effectiveness of negotiation, mediation, and other means all indicate to some extent the weakening of non litigation mechanisms in recent years. As a result, judicial, administrative, and other mechanisms are often pushed to the forefront of dispute resolution, and even forced to make decisions on issues with low consensus or beyond their capabilities, further deteriorating the operating environment of formal mechanisms. Although these constraining phenomena are based on theoretical deductions from empirical materials, structural tension can also be confirmed in some case studies. Many empirical studies on specific mechanisms have also revealed more manifestations of structural tension. For example, some mechanisms with distinct properties and functions (such as different types of mediation) are highly mixed in terms of program construction, evaluation criteria, and incentive mechanisms; Some mechanisms have lost their characteristics and have been absorbed by other mechanisms, resulting in a certain degree of misalignment such as administrative mediation, administrative mediation, judicial petition, and court mediation.

 

Obviously, this structural tension not only demonstrates the necessity of structural adjustment since the new era, but also requires dispute resolution research to move from diversified conceptual interpretation to structural analysis, forming a structural theory that can explain the relationships and changes between various mechanisms. The mutual observation between the "Fengqiao Experience" and the structure of dispute resolution mechanisms not only puts forward practical needs but also provides a practical foundation. On the one hand, the "Fengqiao Experience" has always focused on the overall structure of diversified dispute resolution, and adhering to and developing the "Fengqiao Experience" in the new era has become a basic requirement for structural adjustment. Perhaps only through this mutual observation and examination can we better analyze the causes of structural tension and clarify the direction of structural adjustment. On the other hand, the "Fengqiao Experience" and the structure of dispute resolution mechanisms are deeply embedded in the social and historical context. This structural change and the tense relationships in recent years can provide analytical focus and background materials for the construction of the theory of dispute resolution mechanism structure, and more specifically grasp how the "Fengqiao Experience" has risen from a local experience to a global requirement and its original contribution in the new era.

 

3. The Construction of the Theory of "Fengqiao Experience" and Dispute Resolution Mechanism Structure

 

Due to factors such as social environment and the rule of law, the current situation and problems of dispute resolution mechanisms in various countries are not consistent, and structural theories also have their own focuses, which can be roughly summarized into two types: relational theory and elemental theory. However, these theories oversimplify the relationships between various mechanisms, making it difficult to explain structural changes and their tense relationships. By combining the "Fengqiao Experience" with the development of social theory, a new analytical framework and theoretical model can be extracted.

 

3.1 The Existing Theory and Problems of Dispute Resolution Mechanism Structure

 

Relationship theory mainly revolves around the relationship between litigation and non litigation, forming a theoretical spectrum with "litigation centeredness" and "parallelism" as two ends. On one end of the spectrum, Takeshi Kojima's "Justice Synthesis System Theory" believes that various mechanisms form a concentric circle centered on the trial, from the inside out, consisting of mechanisms presided over by a neutral third party, mechanisms assisted by third parties to adjust, and mechanisms for relatively autonomous negotiation between parties. On the other end of the spectrum, Inoue Norinori's "parallel configuration theory" believes that placing litigation at the core will increase the burden on the judiciary. Both litigation and ADR provide a place for routine dialogue between parties and for proactive, selective, and self disciplined dispute resolution, with blurred boundaries and mutual infiltration. Grant's "Ecological Process of Dispute Resolution" and Tanaka Seimei's recognition of the integration of litigation and non litigation while adhering to the core position of litigation in the concept of "rule of law", as well as the "defense line theory" proposed by Chinese scholars based on the "principle of judicial last resort", which consists of four links: notarization, people's mediation, arbitration, and litigation, are placed between the two ends of the spectrum.

 

Due to the prominent position of the judiciary in modern society, it seems natural to focus structural analysis on litigation and non litigation. However, the relationship between various dispute resolution mechanisms is complex. Not only does litigation and non litigation permeate each other, but non litigation itself also includes various mechanisms with different natures and functions. There are self regulatory (autonomous) mechanisms that point to ADR, as well as those that are close to judicial (justice) mechanisms that point to ADR. The former aims to provide an autonomous dispute resolution method that is far away from or avoids the judiciary; The latter is committed to assisting the operation of the judiciary and facilitating the public's access to justice. Relationship theory does not include these complex relationships and focuses on dispute resolution mechanisms and their relationships, rarely involving the dominant forces, modes of action, and social and political conditions behind various mechanisms. Therefore, it is difficult to provide a systematic explanation for the formation, changes, and tense relationships of the structure of dispute resolution mechanisms.

 

Element theory focuses on exploring structural issues from dispute resolution elements such as subjects, rules, and procedures. The most common proposition is to view the structure of dispute resolution mechanisms from the perspective of subjects as a pluralistic system consisting of public, social, and private remedies. This proposition emphasizes the differences among the three mechanisms in terms of participant roles, entity norms, and procedural operations, which is in line with the traditional research paradigm of "state and society". However, 'reality is diffuse. It is difficult to draw a clear boundary between formal and informal mechanisms, or between the public and private spheres.' This proposition often emphasizes the dichotomy between the state and society, treating public and private, formal and informal institutions as two opposing sides. It not only fails to explain the complex relationships between various mechanisms, but its explanatory power is also limited in societies without a 'binary structure of the state and society'. Some scholars believe that state power has dominance and diffusion in dispute resolution, and should focus on another element of dispute resolution, the "procedure," to explore structural issues. In short, ADR replaces not state power but expensive, delayed, and rigid professional adversarial procedures, which include not only the procedural rules formulated by the state, but also the procedural norms of other social entities related to negotiation, mediation, or arbitration. Based on the adequacy and applicability of the procedure, dispute resolution mechanisms are divided into three types: formal, autonomous, and arbitrary. In terms of structure, mediation should be separated from litigation, and the formality of litigation should be strengthened to establish a reference standard for dispute resolution. Obviously, this proposition also ignores the complexity of ADR composition and has high expectations for state power in some aspects, while low expectations in others. The former manifests as neglecting the influence of social structure, which cannot explain why China's litigation procedures have been continuously strengthened in recent years but still face structural tension; The latter manifests as treating the weakening of social forces and their dispute resolution mechanisms as an unchanging premise, while ignoring the possibility of state power transforming society and its dispute resolution mechanisms.

 

3.2 The Multiple Repetitive Relationships between the "Fengqiao Experience" and the Structure of Dispute Resolution Mechanisms

 

From this, it can be seen that the structure of the dispute resolution mechanism includes various types of dispute resolution subjects, norms, procedures, and related factors, and there are many repetitive and complex relationships between these elements. The structural theory of dispute resolution mechanisms needs to integrate these elements and their relationships into a cohesive system. The main flaw of existing theories may lie in the failure to fully grasp the diversity of these elements and the complexity of their relationships. Of course, if we don't limit ourselves to theory and turn our attention to practice, the 'Fengqiao Experience' always focuses on the overall construction of dispute resolution mechanisms, which actually provides a basic outline for understanding these elements and relationships. Firstly, the 'Fengqiao Experience' adheres to the combination of top-down Party committee and government leadership with bottom-up social participation, which includes the division of labor and cooperation between the state and various social entities; Secondly, the 'Fengqiao Experience' has never been limited to a single mechanism, but has strengthened the comprehensive application of various mechanisms such as mediation, administration, litigation, and petition in different periods; Finally, the 'Fengqiao Experience' is not limited to technical aspects such as the interconnection of various mechanisms, but always integrates dispute resolution with grassroots governance. Its development is the result of the combined effects of national governance methods, economic and social conditions, regional differences, and other related factors in different periods. After 60 years of development, the "Fengqiao Experience" in the new era has even refined basic principles on how to handle these different elements and relationships, such as "mobilizing and relying on the masses," "co construction, co governance, and shared integration," and "integration of autonomy, morality, rule of law, and" three governance ".

 

However, although the 'Fengqiao Experience' provides practical samples and rich materials for the construction of dispute resolution mechanism structure theory, it cannot be expected to provide a ready-made theoretical framework, mainly for two reasons. Firstly, the 'Fengqiao Experience' is only a possible (ideal) structural form for demonstrating dispute resolution mechanisms. The analysis of existing structural theories in the previous text has shown that whether it is the state and various social entities as the main body of dispute resolution, or various dispute resolution mechanisms, they may cooperate and interact with each other, or they may also constrain and exclude each other. Perhaps only by systematically grasping various possible forms of relationships can a relatively complete theory of dispute resolution mechanism structure be formed. Secondly, the 'Fengqiao Experience' still needs further theoretical improvement. In recent years, many efforts have been made in the research of the "Fengqiao Experience" in the new era, but these efforts are often carried out from different levels such as subjects, mechanisms, and related factors, lacking a systematic integration of these different levels of overall research, which cannot fully reflect the multiple and complex relationships between the various elements of dispute resolution, and is difficult to directly apply to the explanation of the structural changes in dispute resolution mechanisms.

 

From this, it can be seen that based on the basic outline provided by the "Fengqiao Experience", how to demonstrate the roles of the state and society in dispute resolution and their relationship with various mechanisms through an appropriate analytical approach, and integrate these complex relationships into a dynamic explanatory framework, will be the key task facing the theoretical construction of dispute resolution mechanism structure. In fact, the issues involved in this task have also been a growing focus of social theory in recent years. Based on a reflection on the traditional research paradigm of "state and society", Migdale proposed an analytical approach of "mutual shaping between state and society", advocating that "state and society are not fixed entities, and both are changing their own structures, goals, supporters, rules, and social control methods in interaction". Perhaps this can provide some reference for further refining and integrating the "Maple Bridge experience" and constructing a general theory of dispute resolution mechanism structure. On the one hand, this analytical approach focuses on the alliance and competition between the state, society, and their respective components, without falling into the traditional binary system, providing the possibility for studying different dispute resolution subjects, mechanisms, and their complex relationships. On the other hand, 'mutual shaping' means that specific dispute resolution mechanisms, structures, effects, and even environments are the result of interaction between the state and society. This process oriented dynamic analysis helps to examine the structure and changes of dispute resolution mechanisms in specific social and historical contexts.

表 2 从国家干预到社会自给的纠纷解决机制

 

 

Based on the above discussion, Table 2 presents a spectrum with state intervention and social self-sufficiency as the two ends, in which the multiple and complex relationships of dispute resolution mechanism structure can be integrated. Firstly, in terms of static structure, typical mechanisms of state intervention include administration and judiciary, while social self-sufficiency mainly includes community mechanisms and market mechanisms, with mechanisms such as court attached ADR and judicial socialization distributed between the two, which can more finely demonstrate the diversity of dispute resolution mechanisms. For example, mediation mechanisms include both administrative mediation and court mediation that are close to state intervention, as well as village people's mediation and industry mediation that are close to social self-sufficiency. Court affiliated mediation and invited mediation are in between the two, and they have significant differences in nature and function. Secondly, in terms of dynamic correlation, there is no rigid correspondence between the state, society, and various dispute resolution mechanisms. The state can provide dispute resolution services through various social or informal mechanisms, such as regulating market mechanisms through permission access and effectiveness regulation, and shaping communities such as units and social organizations to influence their dispute resolution functions. Society may also have various impacts on the state intervention mechanism, such as providing quasi judicial services through formal construction or imitating trials, connecting with the state intervention mechanism through litigation and mediation, or influencing or even changing the operation of the state intervention mechanism through technologies and concepts such as public participation and mediation.

 

3.3 Theory and Model of Dispute Resolution Mechanism Structure

 

From this spectrum, it can be observed that the structure of dispute resolution mechanisms is the result of state intervention, social self-sufficiency, and their interaction with various mechanisms. Based on the strong weak relationship between state intervention and social self-sufficiency, Figure 3 provides a framework model that specifically demonstrates four structural patterns of dispute resolution mechanisms.

图 3 纠纷解决机制结构的框架模型

 

 

(1) State led. Dispute resolution services are mainly provided by the state, and society itself has a weak ability to suppress or resolve disputes. Although the state has never monopolized dispute resolution, some countries rely more on judicial or administrative mechanisms during specific periods, resulting in two patterns of "big justice" and "small justice". The former, such as the North Atlantic countries in the 1960s and 1980s, mainly relied on litigation to resolve disputes, which led to the continuous expansion of the scope of legal adjustments, the number of laws, the burden of cases, and the legal profession. The latter, such as Japan, mainly relies on the civil and family mediation system attached to the court and a large number of administrative ADRs to resolve disputes while suppressing litigation.

 

(2) Social leadership. Disputes are mainly resolved by society itself, and the state does not need or have the ability to intervene in most disputes. Areas with developed social communities are closer to this model, such as early England with developed secular communities such as kinship and geography, and North America before the 18th century with developed religious communities. In recent years, many countries have strengthened the social self-sufficiency of dispute resolution by limiting the scale of the judiciary, promoting community building, and guiding the use of ADR. The former is like Japan's "anti litigation myth", which controls the supply of litigation. In addition to civil, family mediation, and administrative ADR, various social powers, resources, and informal mechanisms have become the preferred means of resolving disputes for the Japanese people. The latter, such as the UK's continuous promotion of various social self-sufficiency mechanisms such as folk, industry, and marketization under the concept of "access to justice" in recent years.

 

(3) Collaborative interaction. Both state intervention and social self-sufficiency are strong, and although there is competition, the interaction is good. Since the mid-20th century, with the unfolding of the third wave of the Justice Movement, the relationship between justice and justice has been re examined, and some countries that are close to the "state led" model have gradually bid farewell to "legal centralism". For example, in recent years, countries such as the United States and Japan have not only vigorously developed near judicial ADR, but also promoted the development of community mediation, folk and market-oriented ADR. Due to changes in social structure or governance models, some countries that are close to "social dominance" continue to strengthen state intervention. For example, Russia and Central and Eastern European countries continue to promote judicial reform, strengthen the role of litigation in clarifying rules and stabilizing expectations, while enhancing the guidance and supervision of non litigation mechanisms by the state, advancing court judicial review, and linking litigation and non litigation.

 

(4) Out of order state. Both state intervention and social self-sufficiency are weak, and a large number of disputes cannot be resolved in a timely manner. Serious issues such as the emergence of "misconduct" during rapid social changes, where the old rule system and dispute resolution mechanism are unsustainable, and new rules and order systems have not yet been established. When the heavily burdened state intervention mechanism does not receive effective support from social forces, or when social capital is weak and unable to obtain effective state intervention, the structure of the dispute resolution mechanism will also become tense.

 

Of course, these patterns are all ideal types, and there are no completely identical examples in reality. The same country may also approach different patterns in different periods or fields. However, this structural theory encompasses various forms of the relationship between state intervention and social self-sufficiency, without pre-set value positions. Instead, it focuses on the relationship pattern between the state and society, as well as their interactive techniques, processes, and consequences. It advocates that the structure of dispute resolution mechanisms changes with the changes in the relationship pattern and interaction situation, and may provide an analytical framework for examining their formation and changes, analyzing the causes of structural tension, and exploring reform directions.

 

4. The Stage Changes and Explanations of Dispute Resolution Mechanism Structure in China

 

Taking state intervention, social self-sufficiency, and their relationship with various dispute resolution mechanisms as clues, before the 18th National Congress of the Communist Party of China, the structure of China's dispute resolution mechanism roughly went through stages such as the disintegration and reconstruction of "social leadership" before the reform and opening up, the promotion of "state leadership" from the 1980s to the turn of the century, and the exploration of "collaborative interaction" since the 21st century. By sorting out and explaining the changes in historical stages, not only can the reasons for the tense structure of dispute resolution mechanisms in recent years be analyzed, but it also provides a deep and systematic background for understanding the rise of the "Fengqiao Experience" from local experience to global requirements in the new era.

 

4.1 The disintegration and reconstruction of "social dominance": two intervention methods and their consequences

 

For the traditional dispute resolution mechanism structure in our country, people generally believe that the state does not go deep into grassroots social governance in every detail. The vast majority of disputes are resolved through internal social mechanisms such as clan leaders, gentry, religious organizations, and industry groups. However, in the rapid social changes of modern times, relatively closed economic life, interpersonal relationships, and conceptual systems have gradually been broken, and traditional communities and dispute resolution mechanisms attached to them are difficult to maintain. This "social dominance" is increasingly disintegrating. In the face of this situation, different political organizations have adopted two intervention methods, and the structure of dispute resolution mechanisms has thus presented two different appearances.

 

One intervention method, namely the various measures taken by the late Qing government, Beiyang government, and Nanjing Nationalist government in promoting political power construction, failed to effectively utilize the existing dispute resolution resources and instead exacerbated the disintegration of "social dominance". For example, the abolition of the imperial examination system and the rise of "new learning" weakened the consensus building effect of Confucianism. Grassroots governance was incorporated into the bureaucratic system through measures such as the Baojia system, and the ability to absorb resources such as conscription and taxation was increased. The generation mechanism and authority of local gentry were undermined, and the "protective Confucian scholars" were replaced by "profit oriented brokers" such as tycoons and bullies. In this situation, the "cultural network of power" is gradually disintegrating, the construction of political power is trapped in "involution", judicial reform is difficult to promote due to the lack of social support, and the structure of dispute resolution mechanisms is in a certain degree of disorder.

 

  For example, through the land revolution, the economic structure was completely changed, and new "classification systems" such as landlords, rich peasants, middle peasants, and poor peasants were established to reshape the identity and relationships of social members. In social mobilization, the concept of the masses was transformed, and their ability to participate in public affairs was cultivated. This approach does not completely reject the existing dispute resolution resources, but rather transforms and utilizes them, integrating them into the "organizational network of power" composed of mutual aid groups, agricultural cooperatives, production teams, militia organizations, mediation organizations, poor peasant associations, women's associations, and so on. Most disputes do not require direct intervention from the state but can be resolved within society through mediation and other means. These daily dispute resolution activities, especially the use of political discourse, the introduction of new social norms, and the establishment of advanced models, in turn further promote social restructuring and political construction.

 

  However, the structure of dispute resolution mechanisms cannot be classified as "state led", but rather as a continuation of previous experiences and a continuous shaping of "social led" under new historical conditions. The city gradually formed a governance structure dominated by the unit system and supplemented by the block system, while the rural areas went through stages of collectivization such as mutual aid groups, low-level cooperatives, high-level cooperatives, and people's communes. During this process, many traditional social governance and dispute resolution resources continue to be utilized, transformed, and integrated into new communities such as units and people's communes. These communities undertake a large amount of grassroots governance and dispute resolution work while achieving national integration of society. The people's judicial system has been established and developed, but the number of disputes resolved through litigation is relatively small.  

 

4.2 The promotion of "state led": modernization of judiciary construction under the change of social structure

 

Since the reform and opening up, China's social structure has undergone profound changes, and dispute resolution has faced increasing challenges to social self-sufficiency. (1) From the perspective of economic structure, the transformation of "planned economy dual track system market economy" has activated social vitality and population mobility. A unified commodity market and a national labor market have gradually formed, and concepts such as "market economy is a legal economy" have begun to take root in people's minds. Disputes that cross community boundaries such as units and rural collective organizations have emerged in large numbers. (2) From the perspective of social class, people are liberated from land or units, and the openness and diversity of society continue to increase. The "institutional exclusion" based on institutional identity is constantly weakening, but the authority and resources for resolving disputes within the system are also continuously declining. The trend of using "market exclusion" for class reproduction has emerged in the reorganized social strata, which to some extent exacerbates the confrontational nature of society and the complexity of disputes. (3) From the perspective of ideological concepts, values are becoming increasingly diverse, especially with the improvement of legal awareness, the use of both formal and informal mechanisms, and the proliferation of phenomena such as petitioning or appealing to public opinion while filing lawsuits, which have a significant impact on judicial and internal dispute resolution mechanisms in society. (4) From the perspective of social organization, the state continues to withdraw from grassroots society, transforming communities into townships (towns), the unit system gradually tends to disintegrate, and the trend towards individualization or atomization continues to strengthen.

 

In response to the increasing and complex disputes, and with the widespread consensus of enforcing the rule of law, the country has accelerated the modernization of the judiciary since the late 1980s, continuously promoting the development of dispute resolution mechanisms towards a "state led" litigation centered approach. Firstly, at the conceptual level, concepts such as "justice is the last line of defense for social justice" have gradually penetrated into society. Many people associate litigation with a sense of rights, and even equate resorting to informal mechanisms with a weak sense of the rule of law. Secondly, at the normative level, the introduction of a large number of laws and regulations provides a basis for the litigation resolution of disputes, and the reform of the trial method based on the burden of proof is gradually unfolding. The focus of the reform is on the principle of parties and the adversarial system, and the degree of standardization is constantly improving. Thirdly, in terms of court construction, although China has streamlined its institutions multiple times since the reform and opening up, the court establishment has shown a continuous growth trend, with the number of judges rising from 59000 in 1979 to 248000 in 2002. The jurisdiction of the court and its infiltration into grassroots society continue to strengthen, and in the 1990s, there was even a slogan and peak of "building courts in every township".

 

Fair, efficient, and authoritative judiciary is an important component of modern rule of law. Against the backdrop of continuous social differentiation and increasing heterogeneity, strengthening the national supply of dispute resolution is also an inevitable choice. The state intervention in this stage laid a solid foundation for establishing a modern judicial system, and the number of disputes resolved through litigation increased significantly. Around 2002, the number of civil first instance cases and civil disputes mediated by the people were basically equal, and the civil appeal rate and first instance judgment error rate showed a downward trend (Figure 1 and Figure 2). However, these reforms were carried out against the backdrop of social structural changes, and state intervention both had an impact on and was constrained by them. In this process of mutual construction, the exploration of the "state led" model gradually faces many problems.

 

On the one hand, with the advancement of state intervention centered on litigation, other mechanisms have further weakened. Before the implementation of the "separation of income and expenditure" policy in 2001, the acquisition of court resources mainly relied on the payment of litigation fees by the parties involved. Some courts' efforts to attract cases and find cases worsened the survival space of other mechanisms. In addition, the state continuously adjusts the scope of application, legal effectiveness, and funding investment of various dispute resolution mechanisms, and disputes continue to be concentrated in the courts. For example, in 1993, the Supreme People's Court issued a notice on how to handle civil disputes mediated by township (town) people's governments, equating civil mediation conducted by administrative agencies with people's mediation. This dealt a heavy blow to the long-standing and effective administrative mediation of civil disputes.  

 

On the other hand, the continuous weakening of other mechanisms not only fails to divert cases from the court in terms of quantity, but also fails to resolve many complex disputes arising from social changes or the alternation of old and new policies. Disputes related to agriculture, rural areas, and farmers, enterprise restructuring, and housing demolition have flooded the courts, triggering a large number of litigation related petitions. The problem of "difficult enforcement" has become increasingly prominent. From 1992 to 2001, the average annual growth rate of enforcement cases was as high as 11.8%, and the compliance intervention rate (the sum of the number of enforcement cases in the two years before and after/the sum of the number of first instance cases concluded without withdrawal in the two years before and after) increased from 34.1% to 53.6%. The appeal rate and first instance judgment error rate have decreased during the same period (Figure 2), while the difficulty in handling complaints and "enforcement" has become increasingly serious, which to some extent reflects the incompleteness and recognition dilemma of resolving disputes through litigation.

 

Of course, modernization of the judiciary cannot be achieved overnight. The establishment of procedural concepts, the establishment of judicial authority, and the improvement of the quality of the legal profession all require a period of time. However, at the beginning of the modernization of the judiciary, it is often a period of sudden and anxious problems, and the credibility of the courts is greatly tested, even with some local court work reports not being approved by the National People's Congress. Under these problems and pressures, the immature judiciary finds it difficult to find a comfortable space for growth, and courts are beginning to reflect on and adjust their dispute resolution policies.

 

4.3 Efforts towards "collaborative interaction": adjustment of national intervention strategies and their impact

 

In fact, the country began to adjust the structure of dispute resolution mechanisms at the beginning of the 21st century, no longer focusing on litigation, but committed to the "collaborative interaction" of various mechanisms. In August 2000, the Central Committee for Comprehensive Management of Social Security issued the "Opinions on Further Strengthening the Investigation and Mediation of Contradictions and Disputes", emphasizing the need to resolve conflicts and disputes at the grassroots level and in their early stages. In September 2002, the Supreme People's Court and the Ministry of Justice issued the "Opinions on Further Strengthening People's Mediation Work in the New Era", which required the integration of people's mediation work with grassroots democratic political construction, comprehensive social governance, and people's letter and visit work. In October 2006, the Sixth Plenary Session of the 16th Central Committee of the Communist Party of China passed the "Decision of the Central Committee of the Communist Party of China on Several Major Issues Concerning the Construction of a Socialist Harmonious Society", which clearly proposed to "achieve the organic combination of people's mediation, administrative mediation, and judicial mediation, adopt more mediation methods, and comprehensively use legal, policy, economic, administrative and other means, as well as education, consultation, and guidance methods".

 

In this context, there have been some significant changes in the national intervention strategy. With the development of the discourse and practice of the rule of law, due to the increasing popularity of concepts such as "small government, big society", the overall mechanism for resolving administrative disputes is declining, and changes in state intervention strategies mainly focus on judicial mechanisms. Firstly, strengthen the court's responsibility for resolving disputes. In 2007, the "Measures for Payment of Litigation Costs" comprehensively lowered the standard for litigation costs and expanded the scope of judicial assistance such as reduction, exemption, and deferred payment of litigation costs. The court actively participates in conflict resolution and early intervention, enabling the formation and expansion of "active justice". Secondly, litigation mediation has regained attention. In 2005, the Supreme People's Court proposed the principle of "mediation if possible, judgment if necessary, combining mediation and judgment, and settling cases". In 2008, it developed into "mediation priority, combining mediation and judgment". Since 2003, the first instance civil mediation rate and withdrawal rate have both stopped their downward trend, rising from 29.9% and 50.6% respectively to 41.7% and 68.2% in 2012 (Figure 2). Thirdly, promote the development of non litigation mechanisms and judicial socialization. In 2002, the Supreme People's Court's "Several Provisions on the Trial of Civil Cases Involving People's Mediation Agreements" clarified that people's mediation agreements have the nature of civil contracts. In 2004, the Supreme People's Court's "Provisions on Several Issues Concerning the Civil Mediation Work of People's Courts" established entrusted mediation. In 2009, the Supreme People's Court's "Several Opinions on Establishing and Improving the Mechanism for Resolving Contradictions and Disputes that Connect Litigation and Non Litigation" emphasized that courts support and promote the development of non litigation mechanisms, improve the connection between litigation and non litigation, and comprehensively establish a judicial confirmation system for various types of non litigation mediation agreements. The court actively introduces resources from party and government departments, social organizations, and private forces, integrates into mechanisms such as large-scale mediation and the linkage of the three mediation, and gradually plays a leading role.

 

It should be said that these adjustment measures have rapidly enhanced the court's ability to respond to practical needs. From 2000 to 2012, the number of civil first instance cases and civil disputes mediated by the people both steadily increased, with a significant growth rate after 2007 (Figure 1). However, during the same period, the error rate of first instance judgments decreased while the civil appeal rate continued to rise (Figure 2), reflecting that the ability of litigation to absorb dissatisfaction still needs to be improved. However, even so, the CGSS2006 survey showed that people are still more willing to choose administrative and litigation mechanisms to resolve disputes. These seemingly conflicting phenomena are also the result of the interaction between sustained social change and state intervention strategies.

 

On the one hand, the previous stage of state intervention centered on litigation was to some extent a consequence of social differentiation and increased mobility, and this change also has an impact on the adjusted state intervention. Although people's mediation has regained favor, the authority and control of the community it relies on continue to weaken, and many measures to activate the power of society itself cannot be implemented. In order to give back to rural areas and improve grassroots governance, the country continues to increase investment in resources and strength, but certain measures may have negative impacts in practice. For example, the cancellation of agricultural taxes has reduced the burden on farmers, but to some extent, it has led to the transformation of grassroots political power from a "suction type" to a "suspension type", and rural organizations face the dilemma of weakened governance power and loss of dispute resolution authority. The "project-based system" provides resources for grassroots development, but in some cases forms a "profit sharing order", elite capture and governance internalization further deteriorate dispute resolution and social self-sufficiency, and deepen dependence on the state. In this situation, based on the urgency of maintaining social stability and safeguarding people's rights and interests, the state often can only resort to direct intervention to resolve disputes, and mechanisms such as people's mediation have shown a trend towards "administrative". For example, administrative departments often mediate a large number of civil disputes in the name of people's mediation because their effectiveness is not clearly defined by law. For example, since 2002, township and street people's mediation committees have been rapidly promoted nationwide. They often have "two brands and one team" with judicial offices, and are more (quasi) administrative in nature, but have become the main force in civil dispute mediation.

 

On the other hand, the court continues to make efforts to expand dispute resolution resources, but the influx of a large number of disputes has made it unbearable and further weakened the social self-sufficiency of dispute resolution to some extent. Firstly, lowering the threshold for litigation has led to a significant increase in the workload of cases, and the contradiction of "more cases and fewer people" has become increasingly prominent. Courts find it difficult to improve the quality of trials calmly, and their role in declaring rules and shaping expectations is difficult to substantially enhance, which further leads to more disputes that cannot be resolved through non litigation mechanisms. Secondly, there are still problems with the administrative and localized nature of the judiciary, as well as the weak ability to absorb dissatisfaction in the litigation process. Especially while emphasizing mediation, there has been a lack of sustained efforts to overcome difficulties in professionalization, procedural constraints, and the finality of judgments. Under the influence of factors such as indicator assessment and risk avoidance, behaviors such as "no adjustment, no establishment", "using judgment to pressure adjustment", and "long-term adjustment without judgment" that violate the voluntary consent of the parties, the law of mediation, and the original intention of judicial policies exist to a certain extent. A large number of court mediation cases have entered compulsory enforcement, further damaging the authority and judicial efficiency of the courts. Thirdly, judicial socialization such as entrusted mediation and judicial confirmation are similar in nature to judicial ADR, which to some extent stimulates more disputes to gather in the court. Some cases of malicious mediation and false confirmation have caused a lot of pressure on the court. With the deepening of judicial intervention in social life, the self-sufficient mechanism of dispute resolution in society has been challenged in terms of authority recognition and cost efficiency. Some departments continue to promote the formalization and professionalization of people's mediation, striving to make it a judicial dispute resolution mechanism that is detached from the dependence on grassroots autonomous organizations. In some places, agreements reached through non litigation mediation are encouraged to apply for judicial confirmation as much as possible, resulting in the phenomenon of "judicialization" of people's mediation.

 

In summary, during this stage, the country continued to promote diversified dispute resolution. Although many achievements were made, the goal of "collaborative interaction" was not achieved, and instead, the responsibility and burden of the country in dispute resolution continued to increase. Due to the ineffective activation of folk or informal mechanisms, the state has to continue to increase the scope and intensity of intervention, which in turn stimulates more litigation and further weakens the social self-sufficiency of dispute resolution. The structural tension between various dispute resolution mechanisms, such as constraints, confusion, and misalignment, is its specific manifestation. The main reason for this phenomenon is the impact of objective factors such as the sharp increase and complexity of disputes under social changes, the weakening of social communities and their dispute resolution capabilities. However, the structural arrangement of dispute resolution mechanisms also deserves serious reflection, mainly involving four levels from macro to micro: the failure to comprehensively consider the current situation and improvement of social self-sufficiency while strengthening the national supply of dispute resolution, excessive reliance on the judiciary and insufficient use of other state intervention mechanisms such as administration, focusing on non litigation mechanisms but not paying enough attention to the modernization of the judiciary and its rule governance role, and striving to promote approaches to judicial ADR but failing to effectively stimulate self-discipline towards ADR.

 

5. New Era 'Fengqiao Experience' and Structural Adjustment of Dispute Resolution Mechanism

 

Since its inception, the 'Fengqiao Experience' has consistently achieved good results in social governance and conflict resolution. By analyzing the state intervention and social self-sufficiency in the "Fengqiao Experience" and its development in the new era, we can not only analyze how it has been enduring, widely applicable, and elevated to a global requirement, but also help clarify the framework and direction of the structural adjustment of the dispute resolution mechanism since the 18th National Congress of the Communist Party of China.

 

5.1 State intervention and social self-sufficiency in the "Fengqiao Experience" and their development in the new era

 

  From the specific content of grasping early and small, prevention first, relying on the masses, and coordinating all parties, the "Fengqiao Experience" is in line with the mediation, public security and other practices in the Shaanxi Gansu Ningxia Border Region and other periods. Therefore, unlike Western countries in the mid to late 20th century that faced the "litigation explosion" and then reflected on and promoted diversified dispute resolution, the "Fengqiao Experience" has the original characteristics of coordinating various dispute resolution mechanisms, integrating intervention and self-sufficiency at the source.

 

Specifically, the birth process and initial meaning of the "Fengqiao Experience" fully reflect the integration of state intervention and social self-sufficiency.   In fact, in the early days, a small number of cadres and masses demanded to "fight once and arrest a batch", and it was through the work team of the provincial party committee organizing cadres and masses to have in-depth discussions that the consensus of "presenting facts through literary struggle, reasoning, and convincing people with reason" was reached. Comrade Mao Zedong instructed the summary of the "Fengqiao Experience" to answer two questions: first, how did the masses understand how to do so; second, relying on the masses to handle affairs is a good way. In fact, the profound significance of the "Fengqiao Experience" has been elucidated from the dialectical relationship between intervention and self-sufficiency. Perhaps it is precisely because of this dialectical relationship that the 'Fengqiao Experience' can be continuously applied to different fields such as the removal of the 'four types of elements' hat, on-site rehabilitation of wandering criminals, and comprehensive public security management, demonstrating broad adaptability and sustained vitality.

 

Since the reform and opening up, in response to the new situation of accelerating the development of the socialist market economy and the emergence of new situations in economic and social life in various parts of the province, Fengqiao in Zhuji and Zhejiang have always adhered to the main line of strengthening grassroots infrastructure construction, creatively learning and promoting the 'Fengqiao experience'... from administrative means as the main approach, to a combination of administrative means, legal means, mass autonomy, and market-oriented operation. The state intervention, social self-sufficiency, and their relationship with various mechanisms in dispute resolution have been continuously improved. On the one hand, improving social governance methods to strengthen social self-sufficiency in dispute resolution. By pragmatically promoting grassroots self governance, cultivating various social organizations, and guiding new talents to participate in social governance, social vitality has been activated, and a three-dimensional mediation network system has been constructed and operated. On the other hand, explore the functional sharing and collaborative relationships of various mechanisms. Through measures such as the "Four Front Work Method" and the "Four First and Four Early Work Mechanism", we not only focus on the interconnection of various dispute resolution mechanisms, but also strengthen the unique advantages of each mechanism. For example, while strengthening judicial reform, disputes are guided to the front end for resolution through the court's "mediation and persuasion letter". While continuing to promote the construction of rural regulations and civil contracts, the establishment of legal instructors by the court is explored. Through the "Four Ring Guidance Law", business training and legal consultation are provided for people's mediation to achieve the division of labor and cooperation between law and social norms, civil mechanisms and judicial mechanisms.

 

Since entering the new era, the 'Fengqiao Experience' has continued to innovate and develop. In October 2013, on the eve of the commemoration of the 50th anniversary of Comrade Mao Zedong's instruction on the "Fengqiao Experience", General Secretary Xi Jinping made important instructions on adhering to and developing the "Fengqiao Experience", emphasizing the importance of "adhering to and developing the" Fengqiao Experience "well, and adhering to and implementing the Party's mass line well". Maple Bridge and other parts of the country constantly adapt to the development of the times, explore and innovate the "three governance integration" of autonomous rule of virtue and rule of law, and "four prevention simultaneously" of civil air defense, physical defense, technical defense, and psychological defense, and use new technologies such as the Internet and big data to inject new impetus into grass-roots social governance. The "Fengqiao Experience" in the new era has expanded from rural areas to grassroots communities in urban and rural areas, and from conflict resolution to various fields of grassroots social governance. However, mobilizing and integrating various forces to resolve conflicts under the leadership of the Party has always been the unchanged mainline of the "Fengqiao Experience". Practice has shown that by coordinating state intervention, social self-sufficiency, and their relationship with various dispute resolution mechanisms, the structure of dispute resolution mechanisms can be significantly optimized. For example, from 2011 to 2017, the number of disputes successfully mediated by the people of Zhuji City exceeded the number of civil and commercial cases concluded by the courts. Since 2018, the number of cases received by courts in Zhejiang Province has steadily decreased year by year. In 2022, the social governance center in the province received a total of 665000 letters, visits, and conflicts, with a resolution success rate of 92.8%. As of July 2023, 27000 shared courts have guided and mediated 401700 cases, resolved 308300 conflicts and disputes, and achieved an on-site dispute resolution rate of 76.75%.

 

5.2 Structural adjustment of the "Fengqiao Experience" and dispute resolution mechanism in the new era

 

Through the mutual observation of the "Fengqiao Experience" and the structure of dispute resolution mechanisms, Table 3 summarizes the structural status and reasons for the changes of dispute resolution mechanisms in different periods of China. From this, it can be found that state intervention and social self-sufficiency interact and constrain each other. By adjusting the mode of state intervention, not only can dispute resolution services be strengthened to form a "state led" model, but it may also promote the formation and transformation of other structural types such as "social leadership" and "collaborative interaction" by transforming society and guiding people's choices. Combining the national intervention and social self-sufficiency in the "Fengqiao Experience" with its development in the new era, a systematic understanding can be formed on the structural adjustment of dispute resolution mechanisms since the 18th National Congress of the Communist Party of China.

表 3 我国纠纷解决机制结构变迁

 

 

Firstly, in terms of state intervention, on the one hand, it changes the previous practice of relying solely on judicial mechanisms and strengthens the role of administrative organs in resolving administrative and civil disputes. Mechanisms such as administrative mediation, reconsideration, and adjudication have become important components of the construction of a rule of law government and have been included in the assessment indicators; On the other hand, through judicial system reform and comprehensive supporting reforms, the judicial capacity and credibility of the courts can be enhanced, promoting a positive interaction between litigation and other mechanisms. For example, by implementing measures such as personnel classification management, case complexity separation, judicial socialization, and smart court construction, we can continue to expand and optimize the allocation of dispute resolution resources; Efforts will be made to achieve the goal of "letting the adjudicators make judgments and being held accountable by the adjudicators" through the judicial responsibility system and the promotion of a trial centered litigation system reform; Clarify the relationship between litigation and other mechanisms through legal and litigation related reforms, modification of evaluation indicators, and cancellation of rankings; Promote the construction of a litigation and mediation docking platform, a one-stop diversified dispute resolution mechanism, and a one-stop litigation service center, and strengthen the docking and cooperation between courts, party and government departments, and social forces.

 

Secondly, from the perspective of social self-sufficiency, we should move from "social management" to "social governance" and focus on strengthening the construction of a social governance community and its ability to resolve disputes. Clarify that urban and rural communities are the "basic units" of social governance and reduce their burden and increase efficiency. Through capacity building such as resident participation, service supply, cultural guidance, law based handling, conflict prevention and resolution, and information technology application, as well as the coordination and sinking of governance resources, enhance the cohesion of urban and rural communities and stimulate the vitality of grassroots self governance. At the same time, we will promote the construction of a social organization system that separates politics and society, clarifies rights and responsibilities, and operates in accordance with the law, strengthen and improve the work of the Party's mass organizations, and achieve the decoupling of industry associations and chambers of commerce from administrative organs. On this basis, the Fourth Plenary Session of the 19th Central Committee of the Communist Party of China explicitly proposed the construction of a social governance community where everyone is responsible, accountable, and enjoys, and the improvement of the urban-rural grassroots governance system that combines autonomy, rule of law, and moral governance under the leadership of party organizations. The role of mass organizations and social organizations should be played, and the self-discipline function of industry associations and chambers of commerce should be leveraged to achieve a positive interaction between government governance, social regulation, and resident autonomy, and to consolidate the foundation of grassroots social governance.

 

Finally, unlike in the past, we are committed to the synchronous promotion of judicial system reform and social system reform, judicial modernization and social governance modernization, and litigation and non litigation mechanisms. In 2015, the "Opinions on Improving the Mechanism for Diversified Resolution of Contradictions and Disputes" proposed that "we must adhere to the leadership of the Party committee, the leadership of the government, and the coordination of comprehensive governance, fully play the role of various departments, and guide all sectors of society to actively participate in the resolution of contradictions and disputes. The judicial reform since the 18th National Congress of the Communist Party of China has not been limited to the traditional judicial field, but has been promoted in conjunction with social system reform, explicitly making diversified dispute resolution an integral part of it, and further expanding to social governance fields such as rewarding law-abiding integrity and punishing illegal and dishonest behavior. In February 2021, the 18th meeting of the Central Committee for Deepening Reform passed the "Opinions on Strengthening the Governance of Litigation Sources and Promoting the Resolution of Contradictions and Disputes at the Source", emphasizing the importance of putting non litigation dispute resolution mechanisms at the forefront, promoting more legal forces to guide and guide, strengthening the prevention, front-end resolution, and control of contradictions and disputes at the source, improving the preventive legal system, and reducing the increase in litigation from the source.

 

It can be seen that this adjustment fully absorbs the "Fengqiao experience" and proposes specific measures to address previous structural problems. At present, structural adjustment is still underway with significant phased results. From objective data (see Figure 2), except for a few years, the first instance mediation rate, withdrawal rate, appeal rate, and second instance mediation rate of civil cases have all significantly decreased since 2012, indicating a certain improvement in the ability of litigation to absorb dissatisfaction. From a subjective evaluation perspective (see Table 1), the four "China Rule of Law Assessment Surveys" from 2015 to 2019 showed a steady improvement in the effectiveness evaluation of dispute resolution channels such as negotiation, mediation, administrative agency resolution, and litigation.

 

5.3 Strategic focus on deepening the adjustment of dispute resolution mechanism structure

 

On November 6, 2023, a conference was held to commemorate the 60th anniversary of Comrade Mao Zedong's instruction to study and promote the "Fengqiao Experience" and the 20th anniversary of General Secretary Xi Jinping's instruction to adhere to the development of the "Fengqiao Experience". The meeting emphasized the need to adhere to the guidance of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, fully implement Xi Jinping Thought on the Rule of Law, adhere to and develop the "Fengqiao Experience" of the new era, and enhance the level of rule of law in preventing and resolving conflicts and disputes. At present, China is still undergoing profound social changes, and the role of the judiciary in rule governance and expectation shaping needs to be improved. The administrative dispute resolution mechanism and social community construction still face many constraints such as concepts and systems. Next, it is necessary to continuously deepen the structural adjustment of dispute resolution mechanisms, especially to be alert to the cycle of ineffective state intervention and weakened social self-sufficiency. Based on a comprehensive consideration of the relationships between various mechanisms, attention should be paid to the strategic priorities of the overall structure, intervention methods, and mechanism linkage.

 

Firstly, in terms of overall structure, we attach great importance to the importance of resolving disputes for social self-sufficiency and the current difficulties, and activate the power of society itself through the construction of a social governance community. The social community is not limited to traditional acquaintance societies such as rural areas and workplaces, and its bonds are not limited to blood and geography. At present, China is promoting the sinking of governance resources, community construction, grid management, industry self-discipline, etc., all of which contain opportunities for the formation of a community. Of course, state intervention may both promote and weaken the community and its dispute resolution mechanisms. This requires a more comprehensive analysis of the constraints of social structure on state intervention mechanisms, careful evaluation of the impact of state intervention on the social community, and continuous accumulation of experience through institutional trial and error to promote a positive interaction between the two.

 

Secondly, in terms of intervention methods, a more comprehensive view of the role and approach of the state in coordinating dispute resolution. In addition to developing the economy, improving people's livelihoods, and providing direct dispute resolution services, the state can also have an indirect but overall impact on dispute resolution through the construction of an integrity system, the integration of dispute resolution resources, and the creation of a public opinion environment. In terms of direct intervention mechanisms, while continuing to strengthen the judiciary, efforts should be made to vigorously develop administrative dispute resolution mechanisms, solve the conceptual barriers and institutional problems that have long plagued the operation of administrative reconciliation and mediation, clarify the effectiveness of administrative mediation, correct practices such as replacing or mixing administrative mediation with people's mediation, promote the integration of mediation and arbitration, and explore the construction of industry-specific or specialized dispute resolution mechanisms in securities, environmental protection, healthcare, electricity and other fields by drawing on the system of appeal commissioners.

 

Thirdly, in terms of mechanism connection, the focus is on handling the relationship between litigation and non litigation, as well as the relationship between judicial oriented ADR and self-discipline oriented ADR. As for the former, in the process of promoting the separation of complex and simple cases, one-stop diversified dispute resolution mechanisms, and the construction of one-stop litigation service centers, it is necessary to clarify the functional differences between trials and other mechanisms, continuously improve the role of litigation in confirming, implementing, and declaring rules through procedural differentiation, and provide stable expectations and references for people's communication and the operation of other mechanisms. For the latter, influenced by factors such as social structure, public mentality, case load, and trial pressure, it is still necessary to continue developing approaches to judicial ADR. However, more proactive efforts should be made to promote the development of various self-discipline oriented ADR mechanisms, truly putting non litigation dispute resolution mechanisms at the forefront. At present, it is particularly necessary to view judicial confirmation rationally, while promoting the protection of the parties' agreement, to avoid compromising the essence of mediation that involves independent resolution and voluntary performance. At the same time, we can explore the scope and operational mode of mandatory (pre emptive) ADR, and pilot it in areas such as marriage and family affairs, traffic accidents, consumer disputes, medical disputes, etc.

 

6. Conclusion

 

Diversified resolution of disputes is a social norm, but various mechanisms do not operate in isolation, but rather have a structural relationship of mutual linkage and restraint. The structure of dispute resolution mechanisms is not always organically coordinated. The constraints, confusion, and misalignment of various mechanisms not only make it difficult to form a cohesive force for resolving disputes, but also undermine the operation of specific mechanisms. Perhaps only by comprehensively considering various dispute resolution resources and forming a structure that ensures the individuality and complementary functions of various mechanisms can we achieve the goal of "organic connection, coordinated linkage, and efficient and convenient" diversified dispute resolution, which may be one of the unchanged essences of the "Fengqiao Experience". The current structural adjustment of dispute resolution mechanisms urgently needs to draw nutrients from the "Fengqiao Experience" of the new era. While reforming and improving specific mechanisms such as litigation, arbitration, and mediation, it is necessary to comprehensively consider the operating conditions, cost-effectiveness, and possible impacts of various mechanisms on other mechanisms. In particular, it is necessary to focus on multiple structural relationships such as state intervention and social self-sufficiency, judicial mechanisms and administrative mechanisms, litigation and non litigation, and approaches to judicial ADR and self-discipline ADR.

 

Of course, the structure of dispute resolution mechanisms is not just a combination of various mechanisms. Its formation and transformation are actually the result of the combined effects of national capabilities, social organizational models, historical traditions, mainstream concepts, and various dispute resolution mechanisms in a specific social and historical context. Based on the "Fengqiao Experience" and the development of social theory, this article proposes a structural theory centered on state intervention, social self-sufficiency, and their interaction with various mechanisms. It applies this theory to examine and explain the structural changes of dispute resolution mechanisms in China, revealing not only the constraints of society and its changes on state intervention, but also the shaping of society by state intervention and its strategic choices. In this sense, the structure of dispute resolution mechanisms is actually a microcosm of the state of social governance, and also a direct representation of the country's governance capacity and governance system.