Chinese Mediation System In A Modernity Vision

Mediation is different, because it’s legendary that it can survive during the upand downs in the history of Chinese traditional law; because it’s a field and horizonthat can reflect the communication and conflict between the “localization” and“transplant”, between “tradition” and “modern” which has been concentrated on bythose of Chinese law field while chasing modernity; and also because it has uniquevalues. In China, there are two approaches referring to the discussion on mediationand modernity. One is localization theory which focuses on “China”; the other istransplant theory focusing on “Modernity”. Their ultimate concern is the proposition:does mediation conform to Modernity? The dominant theory of modernity ismisleading, and we should turn to another idea of modernity, that is reflexive theoryon modernity to argue the proposition.Mediation is disputes solving activity of negotiation under the assistance of athird party with a precondition that the parties must be voluntary. There are threekinds of mediation which includes folk mediation, administrative mediation and courtmediation. And among them the folk mediation and the court mediation arehighlighted for their vast usage.The folk mediation has a long history and its characters vary in different periodof history. The court mediation is created by Chinese people but it emerges in moderntime instead of ancient time. The reason of misunderstanding the court mediation isthe deviation between the official expression and the practicing history. Thediscussion about the value and the future of mediation is divided into two groups. Oneis denying its values and the other is affirming its values, their ultimate concern isModernity and Modern Rule of Law.The dominate idea of modernity is a linear progress view, emphasizing onhistorical inevitability which is easy to be ideology. Under its influence, the ideaabout rule of law is prone to universality and absolutization, and easily to neglect “theother” in the world. In the face of this misleading idea, we should change and payattention to another idea of modernity, that is reflexive theory of modernity. Thatmeans we should be open, starting from the practicing history, finding and respecting“the other” in modern history, appreciating the difference. Chinese modernity of law consists in the struggle and interpenetration of western and Chinese tradition.Mediation is embedded in Chinese history deeply, but it’s neglected as “theother”. The answer of the proposition is mediation does conform to Modernity. Firstof all, the Chinese mediation system reflects the influence of Chinese legal thinkingmode, besides it reflects the coexistence and interaction between the Chinese andwestern legal thinking modes. Chinese legal thinking mode is special and independentwith the combination of moral expression and practical use. It derives from the logicof life while the western mode derives from formal logic.Secondly, the query of values of mediation is wrong. As an “other” system,mediation plays an important role in legal system. We can’t deny it just because of itsshortage, as we all know there is no perfect system in the world. Affirming the basicvalues of mediation has already become the mainstream.Thirdly, the system is a field. We can see the game for interests andcommunication among various parties. Mediation is good for settling down conflicts,and it’s an indispensable part of our social culture.Mediation reminds us to care about other and differences; fully respect ourculture while learning the essence of western experience. It’s a responsible attitude tothink about our social meaning and future.Though mediation does conform to Modernity, the development of mediation isblocked. On the one hand, there are some intrinsic shortages in the mediation system;on the other hand, and the most important, the development of mediation is blockedby the binary opposition mode. If we want mediation to be respected and carefullyconcerned, we have to change mediation into a modernity vision. Firstly, we shouldfully understand the shortages of mediation system. Secondly, we Chinese have to beconfident and peaceful when we talking about the western and Chinese tradition,respecting our legal thinking mode and learning from the essence of western legalthinking mode, such as protecting rights. Meanwhile we have to change the systemunder the guidance of fundamental principles. The principles include severalprinciples of mediation system and building equal consultation atmosphere. In thisway, we can build a new system that is easy to communicate which can protect thefair competition of multi-stakeholder.