Chinese ADR FEN HE

Introduction Mr. Chief Justice Warren Burger 1982 « alternative dispute resolution » → mediation Chinese ADR: important factor in the development of economic ties.

Mediation 1980s – legal system and mediation develop jointly 1990s – use of mediation and other ADR declines End 1990s – initiation reform mediation system LITIGATION ARBITRATION MEDIATION NEGOTIATION

Negotiation Parties reach an agreement without the intervention of third neutral parties + efficiency : all parties satisfied with result + confidentiality + maintain a working relationship

Mediation Traditional way of solving civil disputes 1954 – Provisional General Rules for the Organisation of People’s Mediation Committee 1987 – 950,000 mediation committees – 6,000,000 mediators – → largest dispute resolution program in the world

Mediation Neutral third party assists the parties in identifying the best approach for satisfying the needs of every party. « parties are usually naive, outsiders are usually informed » Cooperation of the parties to the dispute is essential.

Non-Judicial Mediation 1989 – Organic Rules for People’s Mediation Committees – Med. Comm. have settled cases of divorce, inheritance, parental and child support, alimony, debts, property,... – Over 7,000,000 disputes are settled yearly. – Important role in preventing crime, reducing litigation, enhancing unity and promoting social stablility.

Mediation during Arbitration 1995 – Arbitration law allows for mediation ~ Initiative of arbitrator ~ Parties’ initiative « Joint mediation »

Mediation during Litigation Civil Procedure Law of China → simplified in-court mediation proceedings → beneficial for a) the parties and b) the government

Arbitration Economic necessity + Confucianism = Arbitration Conditions in Arbitration Agreement: * express intent * define scope of arbitration * choice of arbitration commission Arbitration Award is final – Exception: labour disputes

Domestic Arbitration 1995 – Arbitration Law - unification - independence - enlarged scope - impartial arbitrators – → meets international standards

International Arbitration Almost exclusively handled by CIETAC / CMAC CIETAC arbitration rules – 1. scope extended – 2. foreign arbitrators – 3. foreign languages – 4. foreign attorneys – 5. nine months period for hearings and rendering award – 6. final and binding arbitral award – 7. « fast track » arbitration

Transformation of ADR in China after 1980 Post-Mao: – - mediation declines – - increase of litigation cases Why? * market economy * change in social structure * rule of law * increased knowledge of the law

Mediation in China today Pluralist modes of dispute resolution Transformation and Modernization of ADR system: 1. Unofficial ADR 2. Specific ADR 3. Trade ADR 4. Administrative ADR 5. Administrative review

To conclude: ADR bridges the gap between the societal needs and the law. → 2 tropisms: * offering new methods of dispute resolution to the parties other than litigation * integrating ADR within the court system