Author: Jiaqi Liang**
Published: December 2009
| Jurisdiction: China |
Topics: Dispute Resolution and Litigation ADR International Litigation Mediation Enforcement of Arbitral Awards Enforceability |
Description:
I. INTRODUCTION
Mediation is a non-litigious method for dispute resolution in which the disputants are able to exercise tremendous autonomy facilitated by a neutral third party who has no binding authority to settle their dispute. As opposed to litigation and arbitration, two traditional and systematically developed approaches to resolving disputes which conclude with an adjudicative document, the mediation settlement agreement is a consensual contract between the parties.
China is said to be the birthplace of conciliation and thus the Chinese tradition of conciliation is referred to as “the Oriental Experience.” Today, the variants on traditional conciliation still play a significant role in assisting the parties to resolve their disputes and modern mediation is increasingly employed. However, there exist concerns about the enforcement of mediation settlement agreements in China. In contrast to worldwide issues such as improving the mediation process and confidentiality, China has a peculiar deficiency in the area of enforcement, despite the passion in this booming emerging economy for using mediation as the optimal alternative dispute resolution mechanism. In the Chinese setting, the issue of enforcement of the mediation settlement agreement arises from both an implicit factor– the intrinsic Chinese negotiation style, and the attitude toward contract, and the explicit factor– a degraded environment of business ethics and deficiencies of legal and institutional support. As to these two factors, different countermeasures are needed.
Part Two of this article will set out a general background on the issue of enforcing mediation settlement agreements. Part Three will introduce the legal operation of the mediation system and enforcement practices in contemporary China. In Part Four, the article will focus on enforcing mediation settlement agreements in China, from the standpoint of the implicit and explicit factors respectively. Recommendations on enforcing mediation settlement agreements in China will be discussed in Part Five. Finally, Part Six will offer concluding comments.
*Notes & Comments
**PhD student in Political Science at School of Public Affairs of American University; MPA, 2009, Harry S Truman School of Public Affairs, University of Missouri; LL.M., 2007, Center for Dispute Resolution of School of Law, University of Missouri. She is grateful to Professor Philip J. Harter, Ms. LoValerie Mullins and Mr. Joshua Holmes for their help and input for this article.