Further Research On The Mediation Mechanism From The Perspective Of Legal Sociology

With the spread of western philosophy and jurisprudence to China in the early 20 th century, China realized it had been put in the marginalized position of the world for hundred years. Nowadays things have changed because of globalization and market-oriented economy. China has been involved in the world system and its legal system varies with the transformation of the society. Mediation, as an alternative dispute resolution of litigation in traditional China, has new signification and function in the modern society and China’s urbanization process. Famous as “eastern experience”, traditional mediation is highly praised by scholars both at hom e and abroad. However, it has also received lots of criticism because it is not always consistent with the principle of rule of law or due process.The problem that theory is out of integration with practice has long been existed in both judicial mediation and people’s mediation. Though there are growing questions about the rationality of judicial mediation in academia or from lawyers, more legal articles which apply mediation in or out of court more frequently than before have been enshrined in the civil procedure law of 2012 and the judicial interpretation which took effect on Feb. 4th, 2015. According to article 122 of the civil procedure law, the people’s court shall conduct the mediation first before the court trial. Article 133 is about civil pre-trial diversion mechanism in which mediation is one of the four choices. Article 194 and Article 195 adopt the regulation about confirmation and execution of the mediation agreement according to the law on mediation, etc. In the meeting before trial, mediation becomes a necessary procedure in Article 225 of the judicial interpretation. Moreover, mediation can be applied in the civil public interest litigation of which jurisdiction belongs to the intermediate people’s courts according to the new judicial interpretation. Above all, researches on mediation have not come to an end, but need to be re-valued with imminent reasons.A few scholars have analyzed mediation from the perspective of legal sociology and scored great academic achievements. This thesis is a further exploration based on summarizing former researches. Mediation, as part of the diversification of the dispute settlement mechanism, is not only a legal issue but is related to social problem, economic situation and political background in Chinese modern society. The thesis takes the patterns of socialization of mediation as the center of discussion and regards the development of the bodies who bear an important function in the socialization of mediation as the clue in order to give a sincere examination of people’s mediation at the present stage of China’s deepening judicial reform. The academic paradigm is based on legal practice and empirical method and on the premise that “what exists is reasonable”.This thesis is divided into four chapters. The first chapter gives a theoretical summary of socialization of mediation in traditional China. At first, this part clarifies several basic conceptions that are frequently used in the whole thesis to make the paper’s framework clear and logical as well as its comments. Chapter one presents conception of traditional socialization of mediation in detail. The scope of time on the study is limited to Qing Dynasty, not earlier than late Ming Dynasty and the aim of this article is to make further investigation based on empirical studies and field investigations conducted by senior scholars. There are two sections in chapter one. Section one introduces the traditional pattern of socialization of mediation. Firstly, it reveals that deviations are found in judicial practice from traditional culture “he” and the idea of “Detesting lawsuit”. Then it analyzes the main types of the subjects and cases of mediation in tradition based on the words in official judgments. Section two respectively explains the characteristics of two kinds of traditional subjects of socialization of mediation as well as their common characteristics. Then, it discusses the interrelationship between the subjects in the process to play social function.The second chapter reviews the transformation of the mediation bodies mentioned above and the reappearance of socialization of mediation which has judicial tradition in Chinese bureaucratic and autocratic society in two sections. Section one sums up great change about the subjects of socialization of mediation. After they experienced the Republican period, the liberation war, the collectivization period and reform and opening-up period, most of them such as family clans and gentry seemed to have disappeared because of the change of social structure and the seepage of official administrative power. This part focuses on whether the traditional contradiction and the function performed by the traditional bodies have disappeared as the disappearance of the subjects above. Taking Shanghai as an example, section two mainly elucidates one type of people’s mediation—court-entrusted mediation. It draws a conclusion that court-entrusted mediation in fact is a model that reproduces the traditional type of socialization of mediation after analyzing the social background, the legislative time and the legislative intent of people’s mediation regulations in resent twenty years. This part focuses on two types of court-entrusted mediation, the system of “docking litigation and conciliation” and people’s mediation workrooms to illustrate that this model of socialization of mediation is to strengthen administrative power by sacrificing judicial authority. At last, it clarifies the concept of socialization of mediation in modern society defined in this article.The third chapter probes into the theoretical basis of the perspective that defines the new model of socialization of mediation in modern China and is consist of three sections. Section one uses the proposition that right means cost and remedy as a standing point to analyzes the character and function of court-entrusted mediation which is a necessary complementary and alternative measure for judicial authorities as well as their judicial function that bears social bargaining. Section two reviews social controlling systems, accountability mechanism of informal institution and the necessary conditions for the mechanism. Then, it points out that lack of integrated social credit systems and reputation mechanism may be a main cause of the absence of true social organizations that can perform the function of settling disputes and become a barrier to achieve modern socialization of mediation. Moreover, the shared belief owed by communities which is the basis of social credit systems relies on a high degree of specialized division and multi-layer self-organizations. Section three compares the abstract symbol system in traditional China with that in modern society to illustrate that the modern society credit system is becoming based on the symbol of impersonality such as “Expert System” instead of the symbol of personality in late imperial China. Then it proposes two radical measures: one is government information openness, the other is the formation and interaction of expert opinions.The fourth or the last chapter supplies several possible paths for the model’s transformation of socialization of mediation in China, including the transformation of the subjects and the path for procedure selection. Section one gives two possible ways about the transformation of subjects of socialization of mediation. Firstly, put a strict limit on the participant bodies in court-assisted mediation and disperse cases that can apply mediation in a more reasonable way. For example, divert simple cases to summary proceedings or the procedure of summary judgment for civil litigation and put some complex cases involving social organizations and public interest down to civil public interest litigation instead of just applying pre-trial mediation in court. Secondly, create space for the privatization and commercialization of the people’s mediation workrooms of which process should be assisted by a series of supporting measures such as legal regulations, financial audit and insurance mechanism in civil society. Section two mainly underlines the importance of the voluntary principle of mediation which means the hermeneutic right is also a duty of the court or the judge and the court should supply double choices both of the bodies that bear mediation and of whether applying the process of mediation or not to the parties. At the same time, all information about those subjects, the cost and the effect of the mediation should be revealed and open to the parties. Then it suggests that the process of confirmation of the mediation agreement be abandoned step by step based on the principle of integration of power and responsibility. The last part of this chapter proposes that online dispute resolution, a new model of alternative dispute resolution, may be a possible choice for the transformation of socialization of mediation and an important component of social mediation mechanism in future. This section introduces the social conditions by which ODR mediation came into being. Then it explains the types and the operation of ODR mediation as well as the advantages and disadvantages of the process. With the rapid development of science and technology, the network media and economic commerce in our country, the new model of dispute resolution mechanism probably plays a radical role because of its high practicability and manipuility to alleviate the burden of judicial mediation and to get rid of administrative power embedding in China’s judicial system gradually.