Apr 30, 2009

Judicial Mediation - A Deprofessionalization?

ON 15 AND 16 APRIL 2009, CityU of HK Law School held an international conference on the mediation. Experts from China, Hong Kong, Australia and Macau presented their latest academic outputs in the meeting.

The interesting thing is: Most Chinese experts are focusing on the judicial mediation, which is the mediation coordinated, and in many circumstances initiated, by judges during the litigations. Experts in other jurisdictions, by contrary, tends to discuss the mediation out of the court.

China's judiciary system is actually now experiencing a new wave of transformation. Contrary to the trend before 2007, the current path of the "judicial reform" is to make the judiciary more "close to people". One of the core measures is to enhance the "judicial mediation". In my view, if the "profesionalization is a world trend for the mediation" (stated by Professor Nadja Alexander, a prominent expert in the arena of mediation), then the emphasizing of the "judicial mediation" in Chinese courts can be named a trend of de-professionalization for the judcial practice.

In a lunch seminar a week later from the conference, Mr. WU Zhi, an Asso. professor from Hunan Normal University brought his interesating talk about the "the mediation in Chinese IP litigations" in CityU. His presentation proved again my assumption. In resent three years, Chinese judiciary system has issued a good many of documents on the policies of the mediation. Now the Supreme People's Courts seems stressed the mediation as the preference in the dispute resolution.

The most interesting thing in prof. Wu's seminar is the discussion among auditors. Most of auditors are the students who registered in CityU's creative LLM program for mainland judges. Because they are judges on the mainland China, they have many experiences in those judcial mediation. This makes the discussion being exciting. As a real auditor, I do obtain many useful knowledges and inpirations.

VS ?

One of the most impressive inspiration is: why the Chinese courts eager to be mediation centers? Two judges answered this question respectively (one was in the seminar and the other was on his way back to the dorm together with me, and their answers are amazingly identical!): because the China's courts are aiming at providing dispute solutions rather than the justice. This reminds me a precedent post in this blog on the "mission of the Supreme People's Courts" (in Chinese). Yes, the Chinese courts are not set as a seperation of sovereignty powers but the institution for dispute resolution authorized by the people's congress (at least in the Constitution literarily). The Constitution and Laws are just one of the "three supremacies" (the slogan of the supreme court - and a question in 2008 China Bar exam).

As a layman either in the mediation or in the procedure law. I cannot figure out whether this "deprofessionalization" is good or bad in an acedemic way. The only thing raised in my mind is: the conflict among dispute resolution mechanisms. Mediation is a more efficient way in resolving the disputes than litigation, while the feature of the litigation is it's formal procedure which may be costly but guarantted the rule of law. When the judicary simplified its procedure and compete to the unformal (or less-formal) mechanism of dispute resolution, it actually retreated itself from the position of "transporting justice". And its status will be conflict to the existing mediation institutions. How many cost will be paid in this institutional competition?

Another interesting topic in is: whether the IP litigation can really be deprofessionlized in the judicial mediation - even if we narrow the aim of the courts only at efficient dispute resolution? Let's leave this question in the next thread.

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