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| Project Details |
| Funding Scheme : | Early Career Scheme | ||||||||||||||||||||||||||||||
| Project Number : | 459413 | ||||||||||||||||||||||||||||||
| Project Title(English) : | Access to Justice: A Theoretical Analysis and Empirical Study on Judicial Mediation in China | ||||||||||||||||||||||||||||||
| Project Title(Chinese) : | 关于中国司法调解的理论和实务研究 | ||||||||||||||||||||||||||||||
| Principal Investigator(English) : | Prof Fan, Kun | ||||||||||||||||||||||||||||||
| Principal Investigator(Chinese) : | 樊堃 | ||||||||||||||||||||||||||||||
| Department : | Faculty of Law | ||||||||||||||||||||||||||||||
| Institution : | The Chinese University of Hong Kong | ||||||||||||||||||||||||||||||
| E-mail Address : | kunfan@cuhk.edu.hk | ||||||||||||||||||||||||||||||
| Tel : | 26961542 | ||||||||||||||||||||||||||||||
| Co - Investigator(s) : |
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| Panel : | Humanities, Social Sciences | ||||||||||||||||||||||||||||||
| Subject Area : | Social Sciences | ||||||||||||||||||||||||||||||
| Exercise Year : | 2013 / 14 | ||||||||||||||||||||||||||||||
| Fund Approved : | 315,722 | ||||||||||||||||||||||||||||||
| Project Status : | Completed | ||||||||||||||||||||||||||||||
| Completion Date : | 31-5-2016 | ||||||||||||||||||||||||||||||
| Project Objectives : |
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| Abstract as per original application (English/Chinese): |
Chinese courts have shifted their priorities away from adjudicatory justice towards mediatory justice since 2003. As a result, an increasing number of cases accepted by the courts are settled, rather than adjudicated. However, a high settlement rate does not necessarily indicate the success of the program. What is the legitimacy of judicial mediation? What are the main goals and values of judicial mediation? How is the policy shift toward mediation reflected in the actual judicial practice? How do we evaluate the success of the current judicial mediation program in China? These and other questions relating to judicial mediation in China need to be answered in order to have a well-informed and reasoned understanding of the current Chinese promotion and practice of judicial mediation.
This project is set to stimulate ideas for the construction of an effective judicial mediation system in China, based on a combination of theoretical analysis and empirical study. First, it will investigate the current status of judicial mediation through documentary study. Second, the theoretical analysis will be tested by empirical evidence, through on-site investigations at three basic courts in different regions of China at different stages of economic developments. A series of interviews will be conducted with judges in order to obtain detailed and first-hand knowledge on the actual practice, successful experience and existing obstacles of China’s current judicial mediation program. Last, it will analyze the results of empirical findings and develop a theoretical framework of judicial mediation in China.
This project fits timely with China’s social needs. The implications of this project will be significant, not only for policy-making and judicial practice but also for academic research. It will make important contribution to the construction of a theoretical framework of judicial mediation in China. The research findings will provide the Chinese authorities with theoretical basis for assessing the effects of civil justice reform and finding the institutional legitimacy of courts, all of which is of great significance in their long-term policy making. Lastly, the research findings will have important impacts for the mediation developments in Hong Kong, in light of its current civil justice reform. Given the important role of China in the world arena, the Chinese model of mediation can provide important reference for the development of ADR and restorative justice in other jurisdictions. 2003年以来，中国法院的司法实践由审判正义向调解正义转换。因此，法院受理的大量案件以和解结案，而非审判结案。2013年8月，在最高法群众路线教育实践活动领导小组会议上，最高人民法院院长周强已指出片面追求结案率、调解率等指标的弊端。我们需要重新冷静的审视司法调解在中国当今社会的作用。司法调解的合法性是什么？司法调解的主要目的和价值是什么？政策上对于调解的态度转变是如何反应在司法实践中的？如何评估当前司法调解实践？我们需要回答以上和其他关于中国司法调解的问题,以更全面、客观的了解中国的司法调解实践。 这个研究项目企图通过理论和实务的研究，激发关于如何在中国建立有效的司法调解机制的一些想法。首先，调研者计划通过文献研究了解当前中国司法调解的现状。其次，调研者计划通过实证调查来审视理论分析的结果，实地考察三个在不同地区、处于不同经济发展阶段的法院。通过对法官的面对面采访来了解司法调解的实际操作情况、成功经验和现有问题。最后，调研者会分析实证考察的结果，并以此为基础来提出建设司法调解理论框架的主张。 这个研究项目密切结合中国当今的社会需求。其研究结果会对政策决定、司法实践和理论研究都有重要意义。该研究会为建设中国司法调解的理论框架作出重大贡献。研究结果可以为中国的权威对于法院的合法性认识提供理论基础，这对于他们的长期政策决定有着重要作用。最后，研究结果也会对香港当今的民事正义改革下调解的发展提供宝贵的素材。由于中国在世界舞台上发挥着重要的作用，中国的调解模式也可以为其他地区的替代式争端解决和恢复性正义的发展起到借鉴作用。 |
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| Realisation of objectives: | The overall objectives of the project have been achieved. On the basis of a comprehensive literature review, the PI and her RA conducted on-sight investigations in June-July 2016 and conducted semi-structured in-depth interviews more than 30 judges from Xiamen Siming People's Court, Beijing Haidian People's Court, Beijing Chaoyang People's Court, Xian Intermediate People's Court, Xian Lantian People's Court and Xian Fanta People's Court. The above courts are selected because they represent divergent geographic locations (including Central and Western center-city as well as Southeast coastal area), and covers three different economic zones, so that the sample is reasonably representative of the current judicial mediation status in China. Most of the courts investigated are basic people’s courts, which represent 76.9% of the judicial personnel and 89.28% of accepted cases in courts at all level. We also interviewed judges from intermediate people’s court in order to test if there are any differences in the attitudes and practice of judicial mediation among different levels of courts. There is a reasonable diversity of seniority, years of experience and gender amongst the interviewed judges, so that the risk of bias is minimized. Some of the interviewed judges have at least ten years of experience in judicial mediation, who will be able to comment on the difference of judicial practice before and after the policy shift toward mediation in 2003 from their personal experience. Our research trip initially experiences some challenges, as such visits of an international nature have to be arranged from higher level of administration, even though the courts we contacted were interested in receiving us. Through several months of coordination, through the PI’s professional and personal contacts, through assistance of Beijing High People’s Court and Supreme People’s Court, and through the assistance of Liaison Office of the Central People's Government in the Hong Kong, all of our intended visits have been arranged, which generated satisfactory outcomes. Based on a combination of theoretical and empirical analysis, we have obtained detailed and first-hand knowledge on how judicial mediation actually works in China. The theorization of mediation practice appears to be challenging, given that the practice varies significantly based on individual’s personal experience and types of cases. We have attempted to overcome this challenge by (i) making a summary of over a hundred mediation cases (mostly from the published mediation cases), and (ii) summarizing the personal experiences shared by interviewed judges, in order to identify commonly used techniques and strategies and specific techniques and strategies adapted to specific types of disputes, so as to tease out some useful models of "best mediation practices". We have also identified existing obstacles of China’s current judicial mediation program based on the literature survey and on-site interviews. Apart from practical insights from judges who are front liners of judicial mediation practice, we have also interviewed the officials from the Legal Reform Office of the Supreme People’s Court, so as to get a better insight of the status and trends of judicial mediation in China from a national policy perspective. Based on the above empirical findings, and drawing on experiences in other jurisdictions, we have made proposals to improve judicial mediation system and put forward ideas to develop a theoretical framework of judicial mediation in China. | ||||||||||||||||||||||||||||||
| Summary of objectives addressed: |
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| Research Outcome | |||||||||||||||||||||||||||||||
| Major findings and research outcome: | Since 2004, the Party and the courts have shifted their priority from adjudicatory back to mediatory justice, in line with the party-state commitment to a “socialist harmonious society”. The change of policy towards judicial mediation caused a steady increase of the percentage of civil cases that are concluded by mediation. The combine effect of the political pressure on court, the appraisal mechanism and sense of honor of judges, caused irrational competition in mediation rate in some court. Our research finds that there has been a conscious reflection on the “mediation heat” since the new director of SPC Zhou Qiang assumed office, and a more balanced approach is proposed. Judges are required to correctly handle the relationship between mediation and judgment. Judges should only prioritize mediation when the parties are willing to mediate and there is a chance to solve the dispute through mediation. The scope of mediation is limited to the family and neighborhood disputes, the disputes that lack clear law and regulation and situation when strictly application of the law may lead to unjust result. Furthermore, for those cases parties are unwilling to mediate and there is a need to provide guidance to the society, the court should prioritize judgment. Such a balanced policy approach seems to have affected the judiciary practice. Most of the interviewed judges expressed that they no longer feel the pressure to push for a settlement as a result of the policy change. Whether they have a preference towards mediation now mainly depends on the nature and type of the cases and the relationship and attitudes of the parties. Mediation at the appeal court appears to be more difficult when parties tend to focus on one disputing issue and have both intensified their positions after the first trial. The judges’ preference is also influenced by the individual’s personal background: the more senior judges with more life experience than legal training tend to have a strong preference towards mediation; while more junior judges who came only a few years after school with a strong legal training tend to prefer adjudication. Through on-sight investigations and face-to-face interviews, the PI has identified common elements required for a successful mediation, values of mediation, common techniques and strategies used by the judges during mediation, the typical process and outcomes of judicial mediation in China. Drawn on the experience from other jurisdiction and discussions with the judges and officers at the SPC, the PI also made proposals to improve the mediation system in China, to develop judicial mediation in the context of a comprehensive Multiplex Dispute Resolution System, to provide systemic accreditation and training of mediators, to explore innovative programs through pilot projects such as commission mediation, Specially-Invited Mediation, e-Mediation. The implications of China's experiences and lessons for Hong Kong's civil justice reform have also been discussed. | ||||||||||||||||||||||||||||||
| Potential for further development of the research and the proposed course of action: |
The research findings can also have useful implications for judicial mediation programs in other jurisdictions. The PI has now moved to McGill University and has established some contacts with judges in Quebec, where interesting civil justice reform is taking place recently. She intends to expand this research by making a comparison between judicial mediation in China and that in Quebec. | ||||||||||||||||||||||||||||||
| Layman's Summary of Completion Report: | This study examined the current status of judicial mediation system in China, based on a combination of theoretical analysis and empirical study. On the basis of a comprehensive literature review, interviews with more than 30 judges from six courts located in three different cities, as well as interviews with the Supreme Court of China (“SPC”), the study finds that there a conscious reflection on the “mediation heat” since the new director of SPC Zhou Qiang assumed office, and a more balanced approach is proposed. Such change in policy has also affected the judicial practice, so that individual judges feel that can make a choice between mediation and adjudication based on the nature and type of disputes, as well as the attitudes and relationship of the parties. Their preference is also influenced by their personal background and trainings. The study further identified useful techniques and strategies in judicial mediation based on the successful experiences, and also made proposals to improve the judicial mediation system in China in the context of a comprehensive Multiplex Dispute Resolution System. Such research findings are significant, not only for policy-making and judicial practice but also for academic research. | ||||||||||||||||||||||||||||||
| Research Output | |||||||||||||||||||||||||||||||
| Peer-reviewed journal publication(s) arising directly from this research project : (* denotes the corresponding author) |
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| Recognized international conference(s) in which paper(s) related to this research project was/were delivered : |
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| Other impact (e.g. award of patents or prizes, collaboration with other research institutions, technology transfer, etc.): |
The PI moved to McGill University Faculty of Law, and this research project may turn into a collaboration with McGill to take on a comparative perspective between judicial mediation in China and in Quebec. | ||||||||||||||||||||||||||||||
| SCREEN ID: SCRRM00542 |