The next time you have a personal dispute with a family member, friend, or neighbor, or a legal dispute involving businesses, be aware that there are alternatives to going to court and filing a lawsuit. You could try mediation (not to be confused with meditation!). Mediation is a time-honored process used in both China and the United States to resolve disputes between the parties, rather than resorting to physical force or suing in court and having a judge decide who "wins." Whether it is a dispute between angry neighbors, divorcing parents, employee and employer, or two businesses, the mediation process uses a mediator, a neutral third-party, who meets with the disputing parties, listens to them and helps them talk to each other, and works with them to find a solution to which both parties can agree. By Linda Mealey-Lohmann, Esq.
The next time you have a personal dispute with a family member, friend, or neighbor, or a legal dispute involving businesses, be aware that there are alternatives to going to court and filing a lawsuit. You could try mediation (not to be confused with meditation!). Mediation is a time-honored process used in both China and the United States to resolve disputes between the parties, rather than resorting to physical force or suing in court and having a judge decide who "wins." Whether it is a dispute between angry neighbors, divorcing parents, employee and employer, or two businesses, the mediation process uses a mediator, a neutral third-party, who meets with the disputing parties, listens to them and helps them talk to each other, and works with them to find a solution to which both parties can agree.
The use of mediation in China and the United States is currently on the rise for both personal disputes and commercial disputes. This article discusses the historical development and current status of the use of mediation in China and the United States and the advantages of using of mediation to resolve personal and business disputes.
History of Mediation in China
Mediation in China has been used for more than 2,000 years, with records showing it was used as early as the Western Zhou Dynasty (1146 BC - 771 BC) and then used nationally during the Qin Dynasty (221 BC - 207 BC). Even with the advent of the Rule of law during the third century BC, there was a strong bias against bringing lawsuits and a preference for mediation throughout the history of Imperial China, even through the Qing Dynasty (ending in 1911). After the People’s Republic of China was established in 1949, the legal system and the mediation system developed together. China's 1982 Constitution reinstituted the People’s Mediation Committees, which conduct mediations in neighborhoods, villages, and workplaces, a system that continues to today.
The foundation of mediation in China today is based on both Confucian philosophy and Maoist thought. Confucian principles include the preference for resolving disputes privately, the duty to preserve natural social harmony, the value of "compromise" in resolving disputes, and the value of "self-criticism." Under Chairman Mao, these same Confucian values and the mediation process were used to stabilize the government's control of the masses and to promote social harmony. Because of the dramatic growth in litigation since the 1990s, the Chinese Government adopted a new Mediation Regulation in Fall 2009 to again encourage parties involved in disputes to use mediation. The law suspends pending lawsuits to give parties a chance to resolve them through mediation and states that mediated settlement agreements are enforceable as contracts in court.
In modern China, there are two categories of mediation; Community Mediation (Ren Min Tiao Jie), which is part of the Alternative Dispute Resolution system, and Court-Performed Mediation (Fa Ting Chu Mian Tiao Jie), which is part of the Justice system.
Community Mediation. Ren Min Tiao Jie has been variously translated as People's Mediation Comittees, People's Conciliation Committees, or Neighborhood Residents Committees. These Committees are set up in villages, townships, work units, and in regional or professional organizations to handle civil matters, and petty criminal matters. Each Committee is composed of individuals from the community who are believed to be fair and impartial. Generally, they are elected to a 3-year term and are paid a small stipend by the government for providing both mediation services and educating the public about legal issues. There is no cost to the parties who use these mediation services. The mediation process is flexible, and may use one mediator or a panel of mediators. The mediator meets with the parties either individually or at the same time and helps them resolve the matter. It is estimated that these Committees mediate 7 million cases a year, with a resolution rate of 90 percent.
Court-Performed Mediation. Fa Ting Chu Mian Tiao Jie is part of the Civil Procedure of China's court system. In these cases, the judge that is assigned to the lawsuit will also conduct the mediation. Unlike Community Mediation, because the mediation process is part of the litigation process, there is an additional cost for it; it is not free to the parties. The Judge-Mediator may ask the parties to come to court for the mediation or the Judge-Mediator may go to the village to investigate and talk with the parties and witnesses. There is an evaluative element to the process, in that the Judge-Mediator may point out weaknesses, may apply certain cultural or legal values to facilitate settlement, may suggest settlement proposals, and may emphasize the economic or social benefits of settlement. Although it is considered a voluntary process, some critics believe there is a coercive element to the mediation. Once a settlement is reached, the court drafts a Mediation Statement that includes the claims, facts, and settlement agreement. This document is then signed by all of the parties and has the effect of a court judgment.
History of Mediation in the United States
Mediation began to be used in the United States by early immigrant groups that brought their own mediation processes with them, including the Quaker, Jewish, and Chinese immigrants. In 1888, mediation began to be used for railway labor disputes, followed by the continued development of mediation in the area of organized labor disputes. In the 1960s, there was an Alternative Dispute Resolution (ADR) movement in the United States that led to the development of a variety of dispute resolution processes, including mediation, which became widely used for family, community, and commercial disputes. With the passage of the ADR Act of 1998, Federal District Courts must provide ADR services to civil litigants in federal court. In Minnesota state court civil cases, Minnesota law requires courts and attorneys to provide parties with information about ADR, which may include mediation. For state court mediations, the Minnesota Supreme Court maintains a roster of mediators who are qualified to conduct mediations. Depending on their training, mediators may be registered to practice in the Civil area (30 hours of training), the Family Law area (40 hours of training), or both. [See Minnesota Supreme Court Rule 114 Neutrals Roster at http://www.mncourts.gov/apps/adr/adr_query.asp]. In the U.S., there is court-connected mediation, community mediation, and private mediation.
Court-Connected Mediation. Unlike China, most mediations are court-connected, rather than court-performed. This means that a Judge in a lawsuit may refer a case to mediation before trial and the parties are responsible for finding and paying for a private mediator. It may also mean that a volunteer mediator is available in conciliation (small claims) court to work with parties at no cost on the day of their hearing, such as those provided by the Dispute Resolution Center in St. Paul to the Ramsey County conciliation court. In addition, Minnesota may be unique in offering court-performed mediation. Under Minnesota Local Rules, Federal Magistrate Judges in Minnesota are authorized to, and regularly do, conduct mediations with parties who have pending federal lawsuits. There is no additional cost to the parties for this mediation because it is included as part of the litigation process.
Community Mediation. In Minnesota, there are seven community mediation organizations. These organizations are private, non-profit organizations that rely on government and private funding. These organizations train volunteer mediators who help community members, businesses, and organizations resolve disputes involving workplace issues, business-consumer issues, landlord-tenant issues, and neighborhood disputes such as noise, pet problems, parking, and property lines. They provide services on a no-cost or reduced-fee schedule according to income. [For contact information of these community mediation organizations, see http://www.minnesotacommunitymediation.org/members.htm]
Private Mediation. In Minnesota, there is no general requirement for the practice of mediation. For private mediations, the Minnesota Supreme Court encourages parties to select a mediator from the Rule 114 Neutrals Roster, but it is not required. Parties can also locate a mediator at the Minnesota State Bar Association's ADR website [www.SelectADR.com] or through word of mouth. Private mediators may be used in a wide variety of disputes, including between neighbors, family members, or businesses; at the workplace, school, or a religious institution; disputes that are already in the litigation process or disputes that are not in court. Unlike mediators in China who may know the disputing parties well, mediators in the United States are neutral third-parties who have no connection with the parties. Each mediator will have his or her own approach to the mediation process, so it is important for parties to ask the mediator to describe the process they will use. Although mediators have no decision-making power, some mediators are more evaluative ("telling" parties what to do), while some are more facilitative ("asking" questions to help parties figure out for themselves what to do). Mediations in the area of workplace discrimination, business-to-business disputes, divorce/parenting issues, and special education are common. Mediations in the area of medical malpractice, elder law-related issues, and family inheritance matters are starting to increase.
The Mediation Process in Minnesota. The typical mediation begins with the mediator having the parties sign an Agreement to Mediate, which gives the mediator permission to work with the parties. Some mediators separate the parties immediately and work with the parties individually in separate rooms throughout the mediation, going back and forth between the parties conveying information and settlement proposals. Other mediators believe that it is beneficial for the parties to work together in the same room, so that parties can express themselves directly and work together on a solution to the dispute. If the matter is resolved, the parties write and sign a settlement agreement. If the parties are not able to resolve the matter, the mediator will call impasse and end the mediation.
There are many advantages to mediation over litigation. Most mediations can be completed in one day for US$2,000 to US$3,000, a fraction of the cost and time of litigation. It is a confidential process, unlike the public forum of a trial. Mediations for disputes that involve long-term relationships (personal or business) can be very beneficial in restoring the relationship, something that cannot happen in the adversarial litigation process. The parties stay in control of the process and the outcome; they do not have to agree to a settlement unless it is satisfactory to them, unlike court where the decision is imposed on them by a judge.
The next time you have a dispute, either personal or business, consider the long-history of the use of mediation in both China and the United States and the advantages of using mediation over litigation, and determine whether it would be more beneficial to resolve it through mediation.
Linda Mealey-Lohmann is a Rule 114 Qualified Mediator who handles employment discrimination, landlord-tenant, and commercial matters. Linda is active in the Chinese community, as a board member of the US-China Peoples Friendship Association and the Minnesota China Friendship Garden Society, is fluent in Mandarin Chinese, has lived in China, and has traveled to China 18 times since 1980.