Mediation & Dispute Resolution in China

For the most part in traditional China, civil disputes between private persons were resolved through alternative dispute resolution. The widespread use of mediation was dictated by the practical realities of Chinese rule. It was legitimized in the writings of the two principal schools of Chinese legal philosophy, Legalism and Confucianism. Recently reopened archival material --i.e. records of cases decided during the Qing dynasty and the Republic (1911-1949) suggest that as the Chinese polity began to undergo the process of modernization, including access to Western influences, local and county magistrates played a greater role in deciding civil cases than many scholars previously believed; however, mediation continued to play an important role in their disposition.

Roots of Chinese Traditional Law. China first came under centralized rule during the Han dynasty (206 B.C.--220 A.D.). Previously, factional and regional political struggles and incursions by barbarians from the North prevented the achievement of stable central rule. According to Macauley, "in China . . . systems of state power evolved without eliminating networks of power at the local level," what she called "the circumscribed power of the state" (2). This power-sharing was necessitated by China's vast territor

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eir judgment was fair and promoted social stability. For example, many cases involved alleged violations by sons or other family members of established rites designed to preserve respect for deceased ancestors. Mediation was by no means the only avenue of recourse for ordinary people even in ancient times. They always had the option of suing. Hansen said that as early as the 11th century China had "a populace well-schooled --almost too well-schooled-- in the ways of the law" (17). The incidence of litigation accompanied the development of positive law. According to Hansen, in 600 A.D. "contracts between individuals had no legal status," but by 1400, "contracts had become the only proof of ownership" (1). The legal contours of more and more property relations, such as those relating to the sale, purchase or rental of a house, a plot of land, a draft animal, a slave, a concubine, "even a child" had been codified under the Tang Code, 618 A.D. Hansen added that "contractual language and ideas deeply permeated Chinese life under the Mongols" (1279-1368). Qing and Republican Era Dispute Resolution In the 1980s the People's Republic of China afforded access to scholars around the world to the Dan-Lin and other archives of cases dec
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Approximate Word count = 4546
Approximate Pages = 18 (250 words per page)