The Mediatory versus Legalistic Discourse in Chinese Courts

21 Pages Posted: 1 Feb 2017 Last revised: 2 Feb 2017

See all articles by Xin He

Xin He

City University of Hong Kong (CityUHK); University of Illinois at Urbana-Champaign, College of Law, Visiting

Luoyun Li

Southeast University (China)

Yuqing Feng

Southeast University (China)

Date Written: January 31, 2017

Abstract

Primarily drawing upon detailed courtroom discourses on divorce cases in China, this article provides a micro-level comparison of case handling between two styles: mediatory and legalistic. The two styles differ in discourse multiplicity, discourse interchange, interruption, and dispute processing. It finds that in terms of dispute resolution, the mediatory style seems to fare better than the legalistic style. One major reason for the difference is that the legalistic style tends to suppress rather than uncover what matters for the litigants. The mediatory style also seems to fit the cultural expectation of suburban and rural China better. The findings compel us to reconsider the extent to promote rule formalism in transitional China.

Keywords: courtroom discourse, dispute resolution, rule formalism, China, marriage law, judiciary, adjudication, mediation, litigation, civil justice

JEL Classification: K00, K10, K36, K4, K40, K41

Suggested Citation

He, Xin and Li, Luoyun and Feng, Yuqing, The Mediatory versus Legalistic Discourse in Chinese Courts (January 31, 2017). Centre for Chinese & Comparative Law Research Paper No. 2017/002, Available at SSRN: https://ssrn.com/abstract=2909384 or http://dx.doi.org/10.2139/ssrn.2909384

Xin He (Contact Author)

City University of Hong Kong (CityUHK) ( email )

83 Tat Chee Avenue
Kowloon
Hong Kong

University of Illinois at Urbana-Champaign, College of Law, Visiting

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

Luoyun Li

Southeast University (China)

Sipailou 2#
Nanjing, Jiangsu Province 210096
China

Yuqing Feng

Southeast University (China) ( email )

Sipailou 2#
Nanjing, Jiangsu Province 210096
China

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