The Jurisprudence of Responsive Mediation: An Empirical Examination of Chinese People's Mediation in Action

Journal of Legal Pluralism and Unofficial Law, Vol. 45, No. 2, May 2013

University of Hong Kong Faculty of Law Research Paper No. 2013/023

29 Pages Posted: 23 May 2013 Last revised: 18 Aug 2014

See all articles by Shahla F. Ali

Shahla F. Ali

The University of Hong Kong - Faculty of Law

Abstract

Community mediation in China has a long history and finds its roots in both cultural (traditional Confucian ideologies) and functional (the avoidance of social conflicts) aims. Recently, however, owing to changes in societal values occurring alongside China’s economic open-door policy, traditional values are losing their prominent role in the mediation process. Meanwhile, reforms are being carried out to provide greater structure to community mediation in China. The combination of these changes has resulted in struggles to redefine the place and role of mediation in China. While the flexibility and responsiveness of mediation allows a contextualized and ‘learning mode of legal intervention’, it is at risk of becoming a ‘precarious ideal’ that lacks precision. Empirical research shows that a new version of mediation, embedded in the ‘rule of law,’ is emerging and mediators report enhancement in both objectivity and legitimacy. This paper seeks to explore the unique challenges and opportunities of achieving responsive mediation in action in China. Drawing on a set of interviews and a case study conducted in three cities in China, the paper aims to contribute to the legal pluralism discourse by examining how mediation in China, traditionally an ‘unofficial’ form of legal practice is now becoming ‘official’ through state sanction and how mediators interact with traditional Confucian normative orders in the context of changing social priorities and values. This paper is divided into three parts: Part I discusses the jurisprudence of responsive law; Part II examines contemporary mediation policy in China echoing many of the aspirations of responsive law and Part III provides an empirical exploration of the challenges of applying responsive ideals in practice.

Keywords: Chinese law, grass roots mediation, empirical methods, jurisprudence, responsive law

Suggested Citation

Ali, Shahla F., The Jurisprudence of Responsive Mediation: An Empirical Examination of Chinese People's Mediation in Action. Journal of Legal Pluralism and Unofficial Law, Vol. 45, No. 2, May 2013; University of Hong Kong Faculty of Law Research Paper No. 2013/023. Available at SSRN: https://ssrn.com/abstract=2268835

Shahla F. Ali (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Chung Yu Tung Tower (Law), Centennial Campus
Pokfulam Road
Hong Kong
(852) 3917 2931 (Phone)
(852) 2559-3543 (Fax)

HOME PAGE: http://www.hku.hk/law/faculty/staff/ali_shahla.html

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