| Over the recent decade or so, based on the introspection on the rule of law orientation and the westernized thoughtway in reforming our judicial system, along with the focus attention on the social order and its effects of administration of justice, especially in answer to the call for the realization the of harmonious society goals, and concurrently with the acquaintance and introduction of the ADR (Alternative Dispute Resolution) mechanism, a political pulse and practical turnaround occur in our country to reassert judicial mediation, hence bringing up an upsurge in the research of judicial mediation.Faced with today's numerous and complicated mediation practices and the large quantity of investigations thereof, this dissertation tries to turn the probe perspective away from the current prevailing attention to the external function of judicial mediation to its production process. And this shift in the viewpoint of research will give rise to a series of problems:If the boom and decline of judicial mediation, an appendant to political government, depends largely upon politics, how can the status of the instrument of this kind be constructed and accomplished through the control under the judge and especially through the representation of autonomy of will by the parties? During this process, how can the positions of the judge and parties and their capital (such as laws, the authority of the judge, etc.) and their tactics adherent to their respective positions be employed as the media in mediation so as to actualize this mode of government in the judicial field? And from what kind social and cognitive structures may the above-mentioned tactics come into being? If mediation and judgment come out from different social and cognitive constructions, where there exist two practices of dispute resolution of different logic and different games benefit, why don't the parties and judge feel nervous when they choose to settle the argument by mediation after they have chosen an action?Hence, the line of thought that this dissertation has set of its own for investigation is not merely to analyze the complexly twisted relations between the elements of various kinds of judicial mediation and those between the judicial field and the political and social fields, and thereby to bring mediation into the judicial field by means of the relationism as a mode of thinking, and then, in the system of the whole field of society, to define therewith the position, significance and function of judicial mediation acquired through the whole system; but also, on the other hand, to analyze the subjective structure of judicial mediation, viz. how the actors therein"choose"their practical modes, and how such choices are shaped; and more importantly, to constitute a relationship between the aforesaid objective and subjective structures, lest one action be split into external decisive elements and internal direct experiences, thus to prevent the analysis of judicial mediation falling into an embarrassment of subjective-objective dualistic antagonism.Just as mentioned above, judicial mediation, as an important mode of practice, can neither base its existence on the theoretical imagination like the autonomy of will of the parties, nor simply attribute to such a political logic as control of power. In effect, like any sort of practice else, it is a production process in which the actor within a given space and time makes response and interpretation to the specific situations and problems that he faces by the habitus that history has bestowed upon him. Grounded upon such an understanding, this dissertation tries to arrange its framework as follows: besides the Introduction, Chapter One conducts an analysis of a judicial mediation case, and this section is not only the prologue of the overall analysis, but more significantly accounts for the trial to transcend the manner of rendering interpretation to concrete interaction in an attempt to find out the subjective and objective foundations for the existence of judicial mediation, and gives reason for the theoretical orientation to examine the judicial mediation in a field of greater span of space and time.With support of the case analysis, Chapter Two tries to historicize judicial mediation, thus to make a historic analysis, or genesis analysis, of the present coexistence of judicial mediation and judgment, and the adherence and strain between them and also between the judicial field and power field, in order to comprehend the contests of this special structure of judicial mediation being maintained or changed at different historic stages, and thereby to make it possible to explore and find the principles of structural transformation. In this part, the examination of struggles and changes in the judicial field is divided into two stages. The first stage is the period of judicial system reform, in which plenty of statutes were produced with the rapid social shift and the appeal for modernization, while in the judiciary sphere, the reform of mode of judgment also took as model the western modern court hearing in quest of a development route in response to the world structure to realize the modernization of legality. Against this background, as the arrangements and adjustments through the political advantages as well as modern discourses were swarming in and acknowledged, judgment that represents the modern justice obtained the dominant position in the judicial field, in contrast of a great decrease in the choice of mediation, as used be a practice of long standing in China. It is in this phase, however, on the one hand, mediation still existed tenaciously and effectually in the vast grassroot countryside and even in the urban substrate justice, and on the other, the public do not feel satisfied with the"justice"achieved through judgment, and there is no way to hold back the appeals to higher authority through petition letters. Such a situation calls into question the justness and adaptability of judicial judgment. The query and"rethinking"of the judicial mediation in its modern sense resulted in the second phase, the revival of mediation. This revival, of course, is not built upon the basis of the theoretical introspection of the modernized paradigm embodied in the judgment, or upon that of the serious positive study of the social and cognitive structures reflected by mediation, but upon the base of a demand of political governance and the pragmatic mode of thought. Yet in any case, this political inclination, in the sense of legitimacy, leads to a time of factual coexistence of the duplex of mediation and judgment.Chapter Three of this dissertation tries to make a synchronic analysis the structure on which the judicial mediation relies, so as to reveal the dynamic mechanism of the practical mode of mediation. In this section, the dissertation first discusses the judicial mediation and judgment as two modes of practice, the discourse applied, the logic observed, and the authority believed in respectively by each of the two, and the relationships between the set actors; then inquires into the intellective and cognitive structures on which judicial mediation and judgment depend for their existence and continuance; and finally probes into the social structure which judicial mediation and judgment as two different modes of practice depend on and solidify, as well as the patterns of the two distinct advantages.However, unlike the judicial judgment that absolutely excludes the lay populace, the initiation and final results of mediation, in its formal sense, are decided by the parties, therefore just a discussion of the basis for the existence of mediation in the judicial field and of its relation to the political power is still far from enough to explicate judicial mediation. For this reason, Chapter Four intends to verify the connection between the party along with the social field he represents and judicial mediation. In this part, the dissertation explores respectively the relationships of the party to law, to the judicial authority, and to the social structure, and concludes that the implementation of judicial mediation is in fact preconditioned by a kind of the party's unawareness of or even reliance on the domination of power. That is to say, the judicial mediation is substantively produced from some kind of isogenesis between the supply of the judicature and the demand of the society, and it is neither the unilateral imposition by the court or the political circle, nor a product of the unilateral requirement by the society, but a result of the historical conjunction of these two. In China, as the modern discourse drives in deeply, the social structure and life style on which judicial mediation depends is being destroyed and disintegrated, yet the psycho-space and cognitive structure on which it relies still resists toughly the exterior changes, or, by way of the existent cognitive structure of its own, construes the aftermath brought by the outer variations. Under such circumstances, judicial mediation may be both an administrative instrument of the political power, and even a constructive implement for the society to maintain itself under transformation. In this sense, judicial mediation is not only a structure-produced mode for dispute resolution but also a structure-producing one of practice.Nevertheless, the discussion above is an academic debate, or in other words, an objectified or a persuasive interpretation, which the author, as a member of the academic field, seeks to impose upon the judicial mediation. In order to avoid applying the theoretic logic in substitution for the practical one, the last section offers a brief consideration to the method of this dissertation, its purport of interpretation, and its interpretability, and this consideration is no other than the proper meaning implied in Bourdieu's theoretic method and way of thinking as employed in this dissertation. |
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