Are Chinese courts undermining people's rights through judicial mediation?

: a critical evaluation with special reference to divorce cases

Abstract

Chinese courts are increasingly becoming an important actor in resolving disputes as more and more people look towards judges to vindicate their rights. This trend is seemingly consistent with the current government policies, which acknowledge rights protection as one of the functions of Chinese courts. However, scholarly opinion is divided as to the actual practice and the potential of Chinese courts in protecting people’s rights. Against this background, this thesis seeks to investigate the extent to which Chinese courts have been protecting rights in civil adjudication. This investigation is done with reference to judicial mediation, which has been an integral part of civil adjudication for several decades. A review of relevant literature and the policies of the Supreme People’s Court (SPC) reveal that rights protection is missing from the list of several functions of judicial mediation defined by the SPC. Are Chinese courts then undermining people’s rights through judicial mediation? This thesis tries to find answer to this question by critically examining the impact of judicial mediation practice on women’s rights in divorce cases, an area in which judicial mediation is commonly employed. Applying the analytical framework of mediators’ strategies developed by Susan Silbey and Sally Merry to selected cases observed in W court located in S province in Northwestern China, I show that the strategies of judicial mediation employed by Chinese judges are undermining rights of women in divorce cases. This may be happening, among others, because there are ideological conflicts between judicial mediation and rights protection. In order to ensure that Chinese courts fulfill their role as rights protectors while performing judicial mediation, this thesis makes two moderate reform proposals. The first proposal concerns principle adjustments of judicial mediation. The principled adjustments refer to specifying respect to parties’ voluntariness by emphasizing voluntary enforcement rate and replacing right-wrong distinction with principle of fairness for judicial mediation. Furthermore, there should be a separation between judicial mediation and adjudication, including procedural division and labour division.

Date of Award	16 Feb 2015
Original language	English
Awarding Institution	City University of Hong Kong
Supervisor	Surya DEVA (Supervisor) & Guiguo WANG (Co-supervisor)