Mediation has changed the idea of dispute resolution in a very impressive way. Long before the Chinese people began to settle disputes before tribunals, they had a tradition to settle such conflicts in an amiable way with an independent party, usually a person or organization with credibility or authority in the local community.
Though mediation has been used for centuries in East Asian countries, such as China and Japan, it was not until the middle of the last century that Western countries began to adapt mediation as an alternative dispute resolution (ADR). Since then, the United States, along with other Western countries, experienced an “explosion of mediation”[1] in the past 50 years.
International mediation grew rapidly around the world in recent years. One of the reasons for its development may be the continuous growth of international business transactions and international commercial cooperation among countries. On one hand, such kinds of commercial cooperation prompted global wealth and improved each country’s international trade; but on the other hand, such commercial transactions brought more commercial disputes. Since mediation has been very successful in settling domestic commercial disputes, legal professionals proposed that mediation should also be regarded as an international dispute resolution tool. With compelling data showing that 80% to 90% of disputes in China and the United States were settled not by litigation, but by mediation, ADR experts and legal scholars in both countries proposed that they should work together to settle the increasing commercial disputes between the two countries through mediation. It was their assumption that, since both countries have done a good job in applying mediation in dispute settlements, there should be minimal obstacles for experienced experts in both countries to work together to solve commercial disputes between China and the United States.
Unfortunately, after those ADR professionals began to work together in creating a mediation process, they realized that mediators from both countries had cherished different kinds of thoughts and working processes. Both the Chinese mediators and the United States mediators could not agree. It turned out that the mediators themselves needed a mediator to help them work together.
Hence, there was a barrier that interfered with the ADR experts’ joint efforts. Whether it is impossible for those professionals to work together and to help Chinese and U.S. companies settle commercial disputes through international commercial mediation came to be a very important issue for the legal professionals to address.
This article will analyze these questions on mediations in the United States and China. This article will also talk about the possibility of forming a China and United States joint mediation program. Part II will provide a background on the concept and a historical background on mediation in the U.S. and China. Part III will compare the two different ADR systems and identify the similarities and differences. Part IV will propose that, to promote a joint Chinese and United States ADR organization, there should be a working party to unify the concept, process, and working methods for the organization.
II. Historical background on mediation in the U.S. and China
Along with arbitration and litigation, mediation is another important way to solve disputes. It could be defined as “[a] method of nonbinding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution.”[2] The definition indicates three key points: (1) there are facts showing that parties do have disputes; (2) a neutral third party interferers to assist disputants; and (3) the purpose is to make a mutually acceptable solution for disputing parties.
The use of mediation in China to resolve disputes has a long history that can be traced to 2,500 years ago, the earliest time in Chinese history. Like China, as some American scholars provided, mediation in the United States can be traced to Colonial America.[3] Accordingly, this article will introduce the historical background on mediation in China and the United States.
- The Evolution of Mediation in China
Mediation has been widely used in Chinese history. There are many old proverbs that express how Chinese people prefer mediation as the primary method for resolving disputes: “harmony is valuable,” “cooperation could lead to fortune,” and “it is better to keep a friend, than to win a victory.”[4] This traditional tendency to avoid litigation has at least two reasons: the idealistic reason and the practical reason.
1. The Idealistic Reason
The idealistic reason that Chinese people have a preference for mediation rather than litigation is based on Chinese traditional culture. “Confusicianism played a major role in the evolution of mediation in the PRC.”[5] As Confucius said in one of his famous books, “Lun Yu,” the most valuable usage of Li is to regulate the relationship among people. [6] Confucius stated that a king should follow the effect of Li to rule his kingdom; he should regard Li as the essential virtue of the country; no matter what people were dealing with, they should obey Li as the guideline for their life.[7] That is, as citizens in such a country, they should conduct their lives in accordance with their respective social status. [8]
In Confucius’s view, the world would be in peace and harmony as long as everyone follows Li. If not, disputes and conflicts would arise which would jeopardize the social harmony. Hence, when a dispute arose, the parties should try to resolve it promptly by themselves or by an independent person, who usually was a person with good reputation or credibility to help solve the dispute.
2. The Practical Reason
Besides Confucianism, practical considerations were very important to the disputing parties. [9] From its earliest history, the Chinese people had formed a tradition of disliking the bringing of disputes before a judge. [10]An old saying shows the ancient Chinese view of lawsuits: “It is better to die of starvation than to become a thief; it is better to be vexed to death than to bring a lawsuit.”[11]
The reasons why the Chinese people so dislike litigation might be that, first, “in traditional China, failure at compromise resulted in a lawsuit, which caused both sides to ‘lose face’ and ruined a person’s reputation in society.”[12] Second, the time and expenses for litigation were usually too high for them to afford. Furthermore, the outcome of such litigation would be inefficient for all the disputing parties. For example, a plaintiff might not recover through a judicial decision if the defendant could not bear the plaintiff’s claims for both his losses and litigation fees, or “[p]ending trial and during the long period that the case might be on appeal.”[13] As to the parties, such results would be inefficient for them. Therefore, both parties prefer to settle their disputes outside of court through mediation.
Because of the domination of Confucianism in Chinese history and the Chinese people’s negative views on litigation, mediation was the primary method for dispute resolution, while litigation became an alternative. As to contemporary China, the Chinese people still value a conflict-free, group-based system of social relations.[14] Though litigation has been widely used in settling disputes, mediation remains on its own as an important method for dispute resolution.
In today’s China, the government regards mediation as an ideal way to resolve civil conflicts or disputes. In 1954, just after five years of the establishment of the People’s Republic of China, the Chinese government adopted the Provisional General Principles on the Organization of People’s Mediation Committees. [15] This regulation confirmed the legal status of mass organization to the People’s mediation committee.[16] From then on, the government allowed the registration of such mediation committees as non-profit organizations, and most of them were regulated by the Department of Justice.
Mediation not only had been officially admitted by administrative authorities, but also had been accepted by the Chinese legislative organs and courts. About 80 to 90 percent of cases had been solved by mediation processed through a judge. The People’s Congress put mediation as the mandatory process in “Chinese Marriage Law,” requiring that a judge should operate mediation for couples before issuing his decision. [17]
With the support from government, mediation in China took an important role in solving disputes in civil, criminal, commercial and trade, real estate construction and many other areas. With the efforts of the China Council for the Promotion of International Trade/ China Council of International Commerce (CCPIT/CCOIC), the largest Chamber of Commerce in China, arbitration and mediation became widely used to solve international commercial disputes.[18]
- The development of mediation in the United States
Mediation in the United States can be traced to Colonial America. “In the United States, religious immigrant and trade groups in colonial New England sustained their ethical and religious traditions in part by using mediation to resolve conflicts among group members.”[19] In 1913, it was formalized as an alternative to litigation by the U.S. Department of Labor, which appointed a panel called the "commissioners of conciliation" to deal with labor and management disputes and provided that the Secretary of Labor act as mediator.[20] In 1926, the American Arbitration Association set up its mediation service for the resolution of disputes.
However, mediation did not receive more attention than litigation and arbitration in the United States until the 1960’s. Some legal scholars stated that it was the result of “often voiced frustration and disappointment associated with the use of our justice system as a means of dispute resolution.”[21] Litigation is risky, arbitrary, and costly.[22] It is also an all or nothing resolution to a conflict that can disrupt business and family relationships.[23] Such criticism partly explained the development of the ADR movement in the United States.
As more and more used mediation to settle civil and criminal disputes, Americans realized that mediation is an efficient method of dispute settlement.[24] During the time from 1960’s to 1970’s, organizations across the country formed committees to find ways of using alternate dispute methods.[25] These organizations advocated that people could use mediation “(1) to relieve court congestion as well as undue cost and delay; (2) to enhance community involvement in the dispute resolution process; (3) to facilitate access to justice; [and] (4) to provide more 'effective' dispute resolution.”[26] Mediation, thus, developed rapidly in the United States in the past 20 years.
Noticing the positive efforts that mediation had made, “[m]any state and local governments have funded mediation programs to deal with disputes in many different situations including family, environment, governmental contracts, and even the playground.”[27] For example, “[i]n 1979, the U.S. Department of Justice supported the development of model Neighborhood Justice Center programs in Kansas City, Atlanta, and Los Angeles. Each program was required to provide training in mediation skills for those serving the center.”[28]
Furthermore, United States courts, both federal and state, welcomed the explosive use of mediation in the early 1980’s. In court, mediation is referred to as “mandatory mediation.” With mandatory mediation, a court orders the parties into a mediation session. Although the parties have to enter mediation, they do not have to agree to accept the agreement or the mediator's award and can still proceed to the courtroom to resolve the dispute.[29] That is to say, mandatory mediation is not the only method to settle disputes in a court, but is one of the methods which judges use to resolve disputes before parties enter a courtroom.
The increasing use of mandatory mediation in courts has much to do with relieving the judges’ burden of cases and for bringing a faster resolution of disputes. Therefore, legislatures began admitting mediation as an important method of dispute resolution. In 1981, New York State published its statewide, publicly funded statutory scheme enabling each county to adopt a mediation program for its jurisdictions to handle misdemeanor cases and small claims disputes.[30]
As to the federal government, court mandated ADR received a jump-start from the federal government in 1998 when Congress enacted a statute ordering federal courts to start ADR programs.[31] This statue also called the Alternative Dispute Resolution Act of 1998, authorized federal district courts to implement ADR programs. [32] The ADR programs are used in all civil actions, and the statute specifically includes bankruptcy proceedings.[33] This law allows the district courts significant flexibility, "including the ability to determine the extent of the court's ADR program, what types are used, [and] what disputes are covered."[34]
Nowadays, mediation has been widely used in resolving commercial, civil, small claims, criminal, family, labor, housing, land, and environmental disputes in the United States. “Parties are now commonly providing for mediation in dispute resolution provisions in contracts and voluntarily turning to the process when disputes arise.”[35] Furthermore, ADR experts and scholars also use mediation in solving international commercial disputes.[36]
III. The similarities and differences between mediation in China and the United States
Mediation has been used widely to resolve disputes in many countries. Within the international context, international mediation offers all of the benefits that it offers domestically, especially in settling conflicts in business relationships. [37]
Having learned that mediation is gaining widespread acceptance and realizing the importance of regulating the working process of mediation, many international organizations started to set guidelines or model laws for implementing mediation programs. Indeed, the Uniform Mediation Act (UMA) and the United Nations Commission on International Trade Law Model Law for International Commercial Conciliation (UNCITRAL Model Law) “reflect the emergence of an international consensus about the importance of mediation as a mainstream method of resolving disputes, as well as the importance of confidentiality to that process.” [38]
Furthermore, some international arbitral organizations consider mediation to be part of their mission of promoting the settlement of disputes. For instance, “the American Arbitration Association (AAA) standard form of arbitration provisions includes mediation-arbitration procedures. The AAA also has adopted rules for mediation of commercial disputes that compliment its arbitration rules.”[39]
In China, the China International Economic and Trade Arbitration Commission revised its Article 44.4 of its Arbitration Rule (2000), stating that if parties who are involved in an arbitration procedure reach an agreement through mediation without the involvement of the Arbitration Commission, “any of them may, based on an arbitration agreement…request the Arbitration Commission to appoint a sole arbitrator to render an arbitration award in accordance with the contents of the settlement agreement.”[40] This article, to some extent, grants the enforceability of a mediation agreement by converting the content of the mediation agreement into an arbitration award.
Likewise, many domestic mediation institutions followed and started to create their own guidelines or regulations for international commercial mediation.[41] Some of the mediation institutions even started to appoint foreign mediators to solve disputes arising from parties with different business cultures.
As to China and the United States, since 1979, under Deng Xiaoping’s “open door” policy, the Chinese economic and legal structures have developed rapidly. As more and more companies began to do business and invest in China, disputes arose when deals or investments went bad. Since more and more parties agree to choose mediation to solve their commercial disputes, international mediation institutions in China and the U.S., such as the China Council for the Promotion of International Trade Conciliation Center, appointed mediators from the United States into its mediation panel list to facilitate parties from the U.S. to choose mediation.
Unfortunately, those institutions found that, during the mediation process, the Chinese mediators and U.S. mediators usually could not agree with each other in many issues; they even criticized each other. For example, mediators from the United States usually complained that their Chinese colleagues did not follow the mediation procedure; on the other side, the Chinese mediators could not bear that those U.S. mediators were reluctant to find the facts of those disputes and were not willing to help parties arrive at an enforceable plan. [42]
In order to identify the barriers and the causes of disagreements between Chinese and U.S. mediators, one must compare the mediation process in both countries, and analyze their similarities and differences.
- The similarities between mediation in China and the United States
The similarities between mediation in both countries are evident. Since China has a long history of using mediation to settle disputes and the United States has used China as a reference in the beginning of its mediation practice, both the mediation systems enjoy some similarities.[43]
- Initiation of Mediation
In both countries, “[m]ediation is a voluntary process in which a neutral third party with no authority to impose a solution helps parties to reach a personalized agreement for resolving their differences.”[44] Both of the mediation systems require parties who want to initiate the mediation to submit their written application, along with the mediation fee. If there is no submission for mediation or no contract clause for mediation, a party may request the mediation institution to invite another party to join in a submission to mediate. [45]
- Qualifications and Ethical Requirements for Mediator
As to mediators, they “work with the parties together and separately to identify important issues, to minimize the retrospective placing of blame, to stress potential areas of agreement, and to build a desire to reach a settlement acceptable to both parties.”[46] Hence, mediators are essential to a mediation process. To a very great extent, the results of the entire mediation are decided by the quality of its mediators. One could put much suspicion on the fairness of a mediation award if he had a chance to learn that mediators have a bias towards one party. Thus, most mediation centers have admission standards, and also an additional Ethics Rules for mediators. As to the CCPIT Conciliation Center and AAA, each of them set a very high standard and Ethic Rules for mediators.
Article M-5 of the AAA International Mediation Rule (2003) provides that “[n]o person shall serve as a mediator … in which that person has any financial or personal interest in the result of the mediation, except by the written consent of all parties. Prior to accepting an appointment, the prospective mediator shall disclose any circumstance likely to create a presumption of bias or prevent a prompt meeting with the parties.”[47]AAA also has The Model Standards of Conduct for Mediators to help mediators perform three major functions: to serve as a guide for the conduct of mediators; to inform the mediating parties; and to promote public confidence in mediation as a process for resolving disputes. [48]
The CCPIT Conciliation Center does not provide its qualification requirements for mediators in its Mediation Rules, but established its Ethic Rules for Mediators in 1993. The rules require mediators to be impartial and independent to all disputing parties. [49]
One of the major pillars[50] of mediation is that, it allows mediators to “conduct joint and separate meetings with the parties.”[51] The AAA International Mediation Rules, establishes that “[m]ediation sessions are private. The parties and their representatives may attend mediation sessions. Other persons may attend only with the permission of the parties and with the consent of the mediator.”[52] Besides that, “[c]onfidential information disclosed to a mediator by the parties or by witnesses in the course of the mediation shall not be divulged by the mediator.”[53]
In China, though the protections of privacy and confidentiality are generally weaker than the United States, according to Article 66 of the PRC Civil Procedure (1991),[54] the CCPIT Conciliation Center provides that, “[m]ediators should keep the information received from one party confidential if the party requires.” [55] The Rules also allow mediators to proceed with the mediation process under any proper methods they deem appropriate.[56]
- Termination of Mediation
Mediation is a non-binding, consensual procedure facilitated by mediators without any decisional power,[57] so the termination of mediation usually occurs in two ways: (1) with the facilitation of mediators, parties agree on a mediation award, which is not binding, or a mediation agreement and execute it; (2) if parties could not agree on a mediation agreement, mediators and/or parties usually would write a written declaration stating that the mediation process is to be terminated. Article M-14 of AAA International Mediation Rules has such provisions, and one could also find the same contents in Article 17 of The CCPIT Conciliation Center Mediation Rules. Moreover, both of the mediation rules allow disputing parties to submit their disputes to an arbitration committee or a court if the mediation process is over.
- Other Similarities
There are many other similarities in both of the countries: the initial statements are taken from parties;[58] there is a restatement of the facts by mediators, and the use of caucus is present in mediation.[59]
In addition, both mediation programs have some common disadvantages in settling disputes: disputants can refuse to implement the mediation agreement even if they signed it, and the process would be an extra waste of time and money if the mediation is not successful.[60]
- The differences between mediation in China and the United States
Despite the similarities mentioned above, differences between mediation in the United States and China are also apparent. In addition to institutional factors, the differences in mediation between China and the United States are attributed to fundamental social and cultural differences. China is a collective society while the U.S. is a more individualistic society. The U.S. people and Chinese people speak different kinds of languages, they experienced different social traditions and customs, the religions are not the same, and they also have different demands on ethics and morals. These cultural differences lead mediators from each country to cherish different ways of thinking and different working methods during the mediation process.
1. Procedure Preferred or Facts Preferred
The main difference between mediation in China and the United States is that mediators in the United States care more about the procedure of the mediation process, while Chinese mediators prefer to know more about the facts between the disputing parties.
Just two years ago, when mediators from China and the United States worked together in assisting disputing parties from each country, one from China and the other from the United States, the U.S. mediator complained that the Chinese mediator kept on asking the disputants questions concerning substantive issues and provided his own judgment on those issues, and the Chinese mediator did not follow the procedural rules for the mediation proceedings strictly. The U.S. mediator stated that the Chinese mediator did not act in a professional way and will ruin the whole proceedings in the end. On the other side, the Chinese mediator stated that the U.S. mediator acted as a businessman, but not as a legal professional. All he did is just “Huo Xi Ni,” which in Chinese means he was nice to both of the parties, even if a party had legal liabilities to the others. The U.S. mediator did not have a right view on right and wrong, and he stuck himself too much on the written rules.
Chinese mediators, like mediators in the United States, utilize skills and strategies to establish and promote communication between disputants. Pursuant to the Mediation Rules, they also followed some procedural steps in mediation processes. [61] But unlike their U.S. colleagues, they are more likely to know the facts of the disputing issues, and make recommendations for possible solutions, and give advisory opinions. [62]
This difference may be caused by the different legal culture in these countries. Generally, the ancient Chinese judges focused more on the substantial facts in a case,[63] but they were reluctant to adopt comprehensive rules for “the Due Process of Law,” which is a concept in U.S. legal culture that American lawyers have enjoyed for two hundred years. Though this traditional custom has changed in the past twenty years, one can still find its influence in today’s China. As to mediation, the mediation rule makers appreciated the idea of “seeking for substantial facts.” Article 1 of The Mediators’ Ethic Rules requires that “[m]ediators should, based on the facts and laws which would applied, with the analysis of parties liabilities, mediate disputes neutrally and independently.”[64] In other words, this article allows mediators to determine the facts, as well as the legal liabilities of disputants, and run the mediation process by offering parties his judgment and solutions on the disputing issues.
In contrast, mediators in the United States do not have the obligation to find out what the facts really were and what kind of solutions the disputants should adopt. Though, the mediator may provide information about the process, raise issues, and help parties explore options. The primary role of the mediator is to facilitate a voluntary resolution of a dispute. [65] It was the parties who shall be given the opportunity to consider all proposed options. That is to say, the mediators should not impose his self-deemed reasonable solution on parties. Additionally, the mediation rules in the United States pay more attention to the procedural issues during a mediation process, such as vacancies, date, time, place of mediation, and identification of matters in a dispute.[66]
2. Mediator-Oriented or Disputant-Oriented
The first major difference also leads to other differences in mediation between China and the United States. For example, a mediator from China could not agree on a typical mediation rule in the United States, saying that the disputing parties should decide the time, and place for the mediation process because it is the mediators’ rights to set up a timetable and working procedure for the mediation process. Comparing the two mediation systems, the Chinese mediation system is based more on mediators’ interests, offered mediators more power to run the mediation process even by imposing some obligations on disputing parties: “[p]arties should cooperate with mediators sincerely, submit his evidence and relating materials, present in mediation meeting on time by mediators’ requests.”[67] Besides that, the mediation rules also allow mediators to “disclose the information he got from one party to another, based on his own judgment unless the party inform him not to.”[68]
On the contrary, the mediation rules in the United States prefer to protect disputants’ rights and interests rather than the mediators. As to confidentiality, though Chinese mediation rules provide such protection to some extent, the United States mediation rules have a better protection for parties saying that “[c]onfidential information disclosed to a mediator by the parties or by witnesses in the course of the mediation shall not be divulged by the mediator.” [69] The United States mediation rules and practice also let the parties to arrive at solutions by themselves; the ideas from disputants would be well concerned in the mediation meeting. The role of a mediator is just to act as a neutral, independent third party who may provide some options to facilitate the parties to come to an agreement, but he should not impose any pressure on parties arrive or not to create a solution.
IV. The possibility of establishing a joint mediation program between China and the U.S.
Though the issue of how to promote mediation between China and the U.S. to be more applicable and more effective has become one of the most heated topics since the trade relationship between the two countries has grown closer, the differences in the idea, the process, and the culture of mediation have been a barrier for mediators of the two respective countries to work together in a certain case. As mentioned above, the mediators in China were more likely to act as a Chinese judge in a mediation process, while U.S. mediators acted as an independent third party whose job was only to assist the parties to arrive at a solution.
The different roles of mediators in the mediation process in China and the U.S. may result from practice as well. The Chinese people, when disputes arise, will choose mediation to solve conflicts first. In that period of time, there are usually no lawyers involved in the process to provide legal advice to the parties. Since the mediators in such a mediation process are people with good reputations or legal professionals, the parties would like to put their trust on them and believe they would provide reasonable analysis on the facts, and then provide satisfactory solutions for each of the disputing parties. Things may be different in the United States. In the U.S., when people have disputes in commercial practice, they will contact their lawyers first. The lawyers provide a legal analysis of the facts and represent their clients in negotiations. If the negotiation fails, instead of submitting the dispute to a court, they will choose mediation to be an alternative resolution. When the mediation process initiates, each party, with the assistance of their lawyers, will not have trouble understanding the facts and legal issues. Thus, the roles and functions of the mediators in U.S. have been limited quite a lot in the mediation process, “[u]nlike a judge or an arbitrator…the mediator is not a decision-maker… [t]he role of the mediator is rather to assist the parties in reaching their own decision on a settlement of the dispute.”[70]
Although the mediators in each country have diverse but successful ways to help disputing parties to solve their conflicts in an amiable way, such ways may not apply in dealing with international commercial disputes arising between companies from different countries. But the fact is, more and more U.S. business people and companies now have been deeply involved in commercial cooperation with their Chinese partners in the form of foreign direct investment, trade, manufacturing, and licensing. With increasing business between them, disputes occur frequently and there is a growing need to resolve them.[71] Within such an international background, recognizing mediation is an attractive alternative which could “[minimize] the cost, [provide] a speedy settlement, and [preserve or develop] an underlying business relationship between parties to the dispute,”[72]the disputing parties have got a preference to mediation or arbitration over to solve their disputes. Thus, such demands for mediation require mediators from both of countries to find a way to work together through the mediation process.
The mediation institutions in both countries have been conducting experiments on such kinds of joint mediation. For example, besides appointing U.S. mediators into its mediator panel, some Chinese ADR institutions, such as the China International Economic and Trade Arbitration Commission (CIETAC) has taken a mediation method as called “joint mediation” in international arbitration proceedings. [73] “Under the ‘joint mediation’ device, a Chinese party may apply to the CIETAC and the foreign party to a corresponding arbitral organ in his/her own country for joint arbitration.”[74] And then, these arbitral institutions, will each appoint one or more mediators to mediate the case jointly. [75] Such kind of solutions, avoid the problem of how to make mediators from different countries work effectively and productively. It would also cause another problem. Since there are two independent ADR institutions which apply different rules of arbitration and mediation, it is difficult for such institutions to communicate with each other and negotiate whose rules would apply in certain cases. That is to say, the situations are more complicated than appointing foreign mediators in one institution. If the institutions want to work together productively, they have to negotiate how to work together as well.
Therefore, applying commercial mediation in the international background is not as easy as legal professionals and scholars initially thought. There are different cultures, ways of thinking, working methods and working ideas involved which would definitely cause great conflicts between the mediators. In order to make international commercial mediation a success, appointing foreign mediators into a mediation center panel or cooperation within different ADR institutions are not the best approaches. The best approach is to establish a joint mediation program which has an independent center which has its own mediation rules and consisting of mediators from China and the United States.
A. The reasons for establishing a joint mediation center:
1. Unification of process. Unlike mediation centers that appoint foreign mediators occasionally into its mediation panel, and unlike mediation centers from different countries cooperating irregularly in joint mediations, the purpose of establishing an independent joint mediation center for China and U.S. is to unify the mediation rules, working procedure, mediator’s working guidelines, ethic codes, and a mediator panel list between the two countries. The advantage of such a method is that it will combine the variance of processes from different mediation centers into one, which is suitable for both cultures. With the unification of mediation rules and working procedure, such a joint mediation center could avoid the conflicts that occur if mediation centers argue on whose rules and mediation process would apply when they are cooperating together. Furthermore, it will provide the parties, mediators, and other working staff a guideline through the mediation process.
2. Administrative adequacy. “There are various ADR providers that have sought international business. There are also many individuals and firms that are seeking to increase their business in this area.”[76] Each ADR institution, individual or firm, if possible, will establish its own mediation rules and process to guide their mediation process. Thus, a problem will occur if two independent mediation centers work together in a joint mediation program. They have to negotiate, or even argue on whose policies and working procedure would apply in such mediation cases. Comparing such situations, an independent joint mediation center will have more administrative adequacy. It is much easier and more efficient for such an joint mediation center to enforce a policy or working procedure within the center; furthermore, with one mediator panel list which consists of permanent mediators from China and the U.S. instead of employing mediators occasionally, it is much easier to organize mediators in some training programs to get familiar with the mediation center’s rules and mediation guidelines.
2. Neutrality. Compared to domestic commercial mediation, the most important distinction of international commercial mediation is that it deals with cross-cultural disputes.[77] The involving parties, not only the disputants, and mediators, or even secretaries who deal with the arrangements and routine work in the mediation center, “must first recognize the additional challenges that cross-culture disputes bring.”[78] Since the people involved in a mediation process, the language, traditions, customs, religions, ethics and morals are quite different between China and the U.S., the establishment of a joint mediation center which consists of mediators from both of the countries will “neutralize” such kinds of differences.
The domestic mediation centers and mediators in both of the countries, as we learned above, have implemented different working policies and working methods which both of the two parts regarded as their valuable experience. Although, such experiences are quite successful in one country, they could not apply in dealing with international commercial mediation. For example, although mediators in China and the U.S. know that there are “normal steps of questioning the parties,”[79] such “normal steps” are not the same in China and the U.S. The Chinese mediators may cherish that it is his responsibility to question the parties about the facts of the dispute, and impose a solution which he thinks is reasonable on the parties. On the other side, the U.S. mediators may regard that all he should do is question the parties to clarify the dispute, and what the parties really want from mediation without providing the parties any solution.
However, establishing a joint mediation center will be helpful in eliminating such different ideas on the same terms. By adopting general mediation rules and handbooks within such a center, mediators, by taking part in training programs and meetings, will have a unified idea on the terms and conditions in the mediation rules, and also an integrated understanding on the mediation center’s working policies.
3. Shared values. Another reason for a joint mediation program under an independent joint mediation center is that it will provide the mediators an opportunity to share different values between China and the United States. It will provide mediators from both countries more opportunities to communicate with each other during training programs and meetings to share their opinions, which may be different from each side, on how to promote mediation within the two countries. By doing this, the mediators from China and the U.S. would have a better chance to arrive at a better understanding of the other side’s culture and social values. Thus, when disputing parties’ conflicts arise only based on different social values between China and the U.S., the mediators, with the understanding of both social values in China and the U.S., will find a easy way to help the disputing parties arrive at a solution.
Therefore, as compared to other mediation centers dealing with commercial mediation, a joint mediation center can do a better job in an international playground.
B. The practice of a joint mediation center between China and the United States
After learning from the lessons on unsuccessful joint mediation practices concerning China and the U.S., legal professionals, scholars, and even mediators themselves from both countries began to realize the importance of establishing an independent joint mediation center that focuses on providing mediation for disputants for Chinese and U.S. businesspeople. [80] Nevertheless, some of them started their cooperation years ago in establishing such a joint mediation center to provide mediation services for Chinese and U.S. companies and businesspeople.
Such cooperation leads to an effort in 2004. In partnership with each other, the China Council for Promotion of International Trade (CCPIT) and Central Public Resource Institute for Dispute Resolution (CPR) built the first joint mediation center, the U.S.-China Business Mediation Center, which implement its own rules and procedures, and its own commercial mediators from China and the United States to mediate resolution of conflicts between Chinese and American (or other Western) companies.[81] Compared to the CCPIT Conciliation Center mediation rules and the CPR Model ADR Procedures (Mediation of Business Disputes) which are made by each center individually, the U.S.-China Business Mediation Center tailors its rules and procedures to be more fair and commercially rational for the settlement of American and Chinese business disputes: [82]
1. Selecting the mediator. In the United States, as stipulated in Article 2 of CPR Mediation Model Procedure, there is usually one mediator in a mediation process who communicates with the disputing parties.[83] This rule, however, may not be practical when dealing with disputes concerning parties from different countries such as China and the U.S. because it is difficult to find a mediator, whether he is an American or a Chinese, who has sufficient understanding of both American and Chinese social culture and business practices. Thus, the U.S.-China Business Mediation Center adopted a Chinese mediation practice which gives the disputing parties a choice to select two mediators, one from China and the other from the U.S. to conduct the mediation. [84] With this method, the parties have an opportunity to tell his story more precisely to the mediator who can speak his own language, which would in turn give mediators a better understanding of the facts.
On the other hand, the U.S.-China Business Mediation Center prohibits the center itself from selecting mediators for the parties which provides the disputants ultimate right to the mediation process. This requirement, which is common in U.S. commercial mediation practice, is contrary to the Chinese practice which entitles the mediation center to designate a single mediator to conduct the proceedings if the parties could not agree on a mediator or mediators. [85] However, in order to make the joint mediation fair to both parties, Chinese legal professionals gave up their standards to show their respect to the U.S. mediation experience.
2. Confidential. It is a basic requirement for mediators to keep all information he has acquired during the mediation proceedings confidential. But as we mentioned above, the CCPIT Conciliation Center Rules (2000) allow mediators to disclose information he obtained from one party to another, based on his own judgment unless the party informs him not to. However, the U.S. -China Business Mediation Center abolishes the Chinese practice, which offer weakened protection for parties’ confidential rights, and adopts the U.S. practice by stipulating in the Mediators’ Professional Ethics that, “[m]ediators shall keep confidential all information, arising out of or in connection with the mediation, including the fact that the mediation is to take place or has taken place, unless compelled by law or public policy grounds.”[86] By adopting such an article, the center believes that it will attract the trust of U.S. companies in the mediation process to submit their disputes concerning their Chinese partners to the center.
Besides the innovative articles in its rules and procedures, with the ambition of providing a non-prejudiced and non-biased mediation service, the center also has a significant mediation panel which consists of many creditable legal professionals or mediators from both countries. These mediators have also been specially trained by the CPR and CCPIT to be aware of the business practices and legal alternatives of both Chinese and American companies. [87] With these methods, the Center has been regarded as a successful institution in providing mediation services concerning China and U.S. companies.
V. Conclusion
Mediation as a form of dispute resolution has been widely used even before laws were made in China. Nowadays, it gained increasing popularity in the United States as well.[88] The successful usage of mediation in China and the U.S. makes legal professionals, mediators and scholars believe that there could be another successful application if mediation could be applied in solving disputes arising between Chinese and U.S. businesspeople through the cooperation of mediators from both countries. However, to make this proposal applicable, more work needs to be done. Comparing the addition of foreign mediators into a domestic mediation center or two independent mediation centers, one from China and the other from the U.S., which cooperate occasionally in some mediation cases, a combined mediation center which implements its own rules, procedures, and its own commercial mediators from China and the United States will have more advantages to promote the peaceful settlement of such disputes. There are not only business and legal issues involved in those disputes, but also intercultural issues.
[1] Cheri M. Ganeles, Cybermediation: A New Twist on An Old Concept, 12 Alb. L.J. Sci. & Tech. 715, 728 (2002).
[2] See mediation, Black's Law Dictionary (Westlaw Online Database),.
[3] See Susan L. Donegan, ADR in Colonial America: A Covenant for Survival, 48 Arb. J. 14, 14 (1993).
[4] Justice Robert F. Utter, Tribute: Dispute Resolution in China, 62 Wash. L. Rev. 383, 384 (1987).
[5] Robert Perkovich, A Comparative Analysis of Community Mediation in the United States and the People’s Republic of China, 10 Temp. Int’l & Comp. L.J. 313, 314 (1996).
[6] “Li” means courtesy and decency in Chinese language.
[7] He Huang & Zili Mu, China’s Commercial Mediation: Principles and Practice, 2 (China’s Democracy and Judicial Press, 2002).
[8] As to social statuses, Confucius interpreted “Li” as “three Gangs”, which means “three orders” in a society: a king should be the “gang” of his ministers; a father should be the “gang” of his children; a husband should be the “gang” of his wife.
[9] Vai Io Lo, Resolution of Civil Disputes in China, 18 UCLA Pac. Basin L.J. 117, 122 (2001).
[10] Zhongqiu Zhang, Chunfu Yang and Jian Fan, Jurisprudence, 14 (Nanjing University Press, 1997).
[11] Jerome A. Cohen, Chinese Mediation on the Eve of Modernization, 54 Calif. L. Rev. 1201, 1201 (1966).
[12] Shin-yi Peng, the WTO legalistic Approach and East Asia: From the Legal Culture Perspective, 1 Asian-Pacific L. & Pol’y J. 13, 16 (2000).
[13] Utter, supra n.5 at 385.
[14] Shin-yi Peng, supra n.13 at 16.
[15] See Article 1, Administrative Affairs Council’s Decision on the Handling of Work on Letters from People and Reception of People.
[16] Id.
[17] See 2000 Marriage Law §4.32.
[18] CCPIT, Settlement of Disputes, http://www.ccpit.org/vhosts/english/VI.htm (April 7, 2005).
[19] James J. Alfini, Sharon B. Press, Jean R. Sternlight and Joseph B. Stulberg, Mediation Theory and Practice, 1 (Lexis, 2001).
[20] William E. Simkin and Nicholas A. Fidandis, Mediation and the Dynamics of Collective Bargaining 25 (2d ed. 1986).
[21] Kimberlee K. Kovach, Mediation: Principles and Practice, 1 (2 ed., St.Paul Minn. 2000).
[22] John W. Cooley, Mediation Advocacy 5 (Nita Publications 1996).
[23] Id.at 7.
[24] Joseph B. Stulberg, Training Interveners for ADR Processes, 81 Ky. L.J. 977, 977 (1993).
[25] Stephen B. Goldberg, Frank E. A. Sander, Nancy H. Rogers and Sarah Rudolph Cole, Dispute Resolution: Negotiation, Mediation, and Other Processes 3 (Aspen Publishers 2003).
[26] Id. at 5.
[27] Kovach, supra n. 22 at 26.
[28] Stulberg, supra n. 22 at 982.
[29] Peter Lovenheim, How to Mediate Your Dispute 28 (Nolo.com 1996)
[30] See Act of 1981, Ch. 847, 1981 N.Y. Laws 847.
[31] Christine Lepera & Jeannie Costello, The Use of Mediation in the New Millennium, 5 N.Y. L.J. 3, 3 (1999).
[32] 28 U.S.C. § 651(Alternative Dispute Resolution Act of 1998).
[33] Id. at § 651(c).
[34] Id. at § 651(d).
[35] Bennett G. Picker, Mediation Practice Guide 2 (ABA 2003).
[36] Many ADR organizations in the United States have dedicated to apply mediation in settling international commercial disputes. For example, the CPR Institute for Dispute Resolution has established mediation programs in Europe, South America and some part of Asia.
[37] Unlike litigation or arbitration, mediation focuses on maintaining good relationships between parties, usually the settlement occurs more quickly than litigation and arbitration proceedings; besides that, the procedural and evidentiary rules in mediation also offer more flexibility. See Erik Langeland, The Viability of Conciliation in International Dispute Resolution, 50-SEP Disp. Resol. J. 34, 35(1995).
[38] Jernej Sekolec and Michael B. Getty, The UMA and the UNCITRAL Model Law: An Emerging International Consensus on Mediation and Conciliation, 9 No. 4 Disp. Resol. Mag. 17, 17 (2003).
[39] Stephen K. Huber and E. Wendy Trachte-Huber, International ADR in the 1990’s: The Top Ten Developments, 1 Hous. Bus. & Tax. L.J. 184, 221 (2001).
[40] See China International Economic and Trade Arbitration Commission Arbitration Rule (2000), Article 44.4, http://www.cietac.org.cn/english/rules/rules.htm (April 7, 2005).
[41] For example, China Council for the Promotion of International Trade Conciliation Center revised its mediation rules in 2000, and added provisions for international commercial mediation.
[42] The author of this article, as a in-house lawyer and a secretary of CCPIT Jiangsu Conciliation Center from 2002 to 2004, experienced such kind of complaints from the U.S. and Chinese mediators from time to time.
[43] In order to analyze this issue more concisely, the following of this article would only choose The AAA’s mediation rule and CCPIT Conciliation Center Rule to compare.
[44] Stephen S. Cook, Mediation as an Alternative to Probation Revocation Proceedings, 59 Fed. Probation 48, 48 (1995).
[45] See Article M-2, AAA International Mediation Rules (2003), http://www.adr.org/sp.asp?id=22090#Intl_Mediation (April 7, 2005); See also Article 3 and Article 4, CCPIT Conciliation Center Mediation Rule (2000),http://tw.people.com.cn/GB/14815/14885/867118.html (April 7, 2005).
[46] Cook, supra n. 43 at 48.
[47] Cook, supra n. 44 at 45.
[48] American Arbitration Association, Model Standards of Conduct For Mediators, http://www.adr.org/sp.asp?id=22118 (April 7, 2005).
[49] Article 4, CCPIT Conciliation Center Ethic Rules for Mediators (1993), http://tw.people.com.cn/GB/14815/14885/867124.html (April 7, 2005).
[50] The three pillars of mediation are: efficiency, flexibility and confidentiality.
[51] Cook, supra n. 44 at 43.
[52] Article M-11, AAA International Mediation Rules (2003).
[53] Article M-12, AAA International Mediation Rules (2003).
[54] This article establishes that, “evidence concerning national confidential, personal privacy and business confidential should not be divulged out of the court.”
[55] Article 19, supra n. 45.
[56] Article 14, supra n. 45.
[57] Louise E. Dembeck, International Mediation, 10 Am. Rev. Int’l Arb. 265, 268 (2000).
[58] Kovach, supra n.21 at 124.
[59] Perkovich, supra n.5 at 327.
[60] Langeland, supra n.37 at 36.
[61] M. Holt Meyer and Charles J. Wysochi, Chinese Mediation, 57 N.Y. St. B. J. 37, 38 (1985).
[62] Roger Richman, Civil Dispute Resolution in China During Reform, 7 Ohio St. J. on Disp. Resol. 83, 88 (1991).
[63] Zhang, supra n.10 at 15.
[64] Article 1, CCPIT Conciliation Center Ethic Rules for Mediators (1993), http://tw.people.com.cn/GB/14815/14885/867124.html (April 7, 2005).
[65] Article 1, AAA Model Standards of Conduct For Mediators, http://www.adr.org/sp.asp?id=22118 (April 7, 2005).
[66] Id.
[67] Article 19, supra n.45.
[68] Article 17, supra n.45.
[69] Article M-12, supra n.45.
[70] Barry Kramer and Allen D. Brufsky, Trademark law Practice Forms, § 35:20, 3 Trade Law Prac Forms § 35:20 (Westlaw Online Database, updated August 2004).
[71] Jun Ge, Mediation, Arbitration and litigation: Dispute Resolution in the People’s Republic of China, 15 UCLA Pac. Basin L.J. 122, 122 (1996).
[72] Id.
[73] Kramer, supra n.70 at 126.
[74] Id.
[75] Id.
[76] Steven K. Anderson, Mediation and the North American Free Trade Agreement, 55 May Disp. Resol. J. 56, 58 (2000).
[77] Urs Martin Lauchli, Cross-Culture Negotiations, With a Special Focus on ADR with the Chinese, 26 Wm. Mitchell L. Rev. 1045, 1050 (2000).
[78] Camille Schuster and Michael Copeland, Cross-Culture Communication: Issues and Implications in International Business Negotiations 4 (Pervez N. Ghauri & Jean-Claude Usunier Eds. 1996).
[79] Isabelle R. Gunning, Diversity Issues in Mediation: Controlling Negative Cultural Myths, 1995 J. Disp. Resol. 55, 82 (1995).
[80] Before starting the establishment of a China and U.S. joint mediation center, the ADR providers in China have begun to seek the possibility to build up such kind of joint mediation centers with Canada and Korea. Some of the U.S. mediation providers, Central Public Resource Institute for Dispute Resolution (CPR) for example, established its joint mediation center with European countries too. See Liang Li, Joint mediation centre launched, Beijing Portal, http://www.beijingportal.com.cn/7838/2004/12/08/1821@2411925.htm (Dec. 8, 2004); See also the CPR Institute for Dispute Resolution, The CPR International Project, http://new.cpradr.org/CMS_disp.asp?page=CPR_Intl_WhatWeDo&M=10.1 (April 4, 2005).
[81] CPR Institution for Dispute Resolution, U.S.-China Business Mediation Center:
A Brief Introduction, http://new.cpradr.org/CPR_China.asp?M=10.5.3(April 4, 2005).
[82] Peter Phillips, New Joint Venture, U.S.-China Business Mediation Center, Adds
Options for Business, http://www.cpradr.org/pressroom/press51.pdf (April 4, 2005).
[83] See CPR Institution for Dispute Resolution, Mediation Procedure, (Revised and effective as of April 1, 1998), http://new.cpradr.org/med_proced.asp?M=9.2.4#selecting (April 4, 2005).
[84] Article 4, The CPR/CCPIT Mediation Procedure for Disputes Submitted to the
U.S.-China Business Mediation Center, http://new.cpradr.org/pdfs/Intl_China_Procedure04.pdf (April 5, 2005).
[85] Article 12, supra n.45. It provides that, “the conciliation center should designate a single mediator to conduct the mediation if the parties could not agree on a mediator or mediators.”
[86] See CPR Institution for Dispute Resolution, the Mediators’ Professional Ethics, http://new.cpradr.org/pdfs/Intl_China_Procedure04.pdf (April 5, 2005).
[87] Within the author’s knowledge, the Center held its first training program in the United States in June, 2004; it plans to hold its annual training program in Beijing in May, 2005.
[88] Gunning, supra n.78 at 93.