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Mediation Practices In China: A Brief Idea

"Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often the real loser-in fees, and expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough."-- Abraham Lincoln

To put Mediation into simple terms, Mediation is the process which uses communication as its core method for dispute resolution. Black's Law Dictionary defines Mediation as, "method of non-binding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution".

A Mediation proceeding mostly consists of three parties, out of which the two parties are the parties that are in dispute and the third party is the neutral party, also known as the mediator. In a mediation a mediator tends to analyse the issue at hand rather than providing a certain advice to one party, which is a merit of Mediation. This bar on not giving advice helps maintain the neutrality of the mediator and helps the mediator in analysing the issues well with the parties.

This analysis of the issues allows the parties in conflict to understand where the underlying cause of their dispute and allows the parties to themselves come into a conclusion or an agreement regarding the dispute. Mediation has been in use for years now. The most popular case of Mediation can be the case where King Solomon was the mediator in a dispute regarding child custody.

The usage of Mediation first began in the ancient Greece, which then spread onto the Romans. The Romans were heavily influenced by this practice in Greece. Mediation then went on to be spread all over the world. Mesopotamia, Egypt, China, and many more great dynasties relied on Mediation to resolve certain disputes. The mediation method in China back then relied heavily on the words of Confucius, a philosopher, who currently has a great following in Eastern Asia.

According to Confucius:
"The best solution is the reconciliation of the parties involved; this, however, should not be imposed in any way, not even indirectly". To simplify this, one can infer that, Harmony gained through a natural course of action like communication is much better than forcing the parties in dispute to come to a harmony. Hence, this teaching of Confucius became a very important ideology of Mediation in China. People believed that through mediation, parties can come to a natural harmony. Here, the village heads normally become the mediators and approach the parties to hear and understand their side of the dispute in order to discover what the real issue is. They also take opinions of village members.

Then they proceed to analyse the matter and try come with a solution, this process goes on till the parties come to a solution. Now, this form of mediation is popularly known as "People's mediation", which was once rejected by the Communist Party of China but is now accepted by the Communist Party of China.

Now, in the present times, the Party disregarded the Confucius believes now is so influenced by his teachings that China has introduced mediation as a mode of dispute resolution even though there is a presence of an Arbitration Clause. Most popular example can be the rules of China International Economic and Trade Arbitration Commission, which has provisions where parties can resolve the disputes through Mediation within an arbitral context.

Under this provision, the parties in dispute have the option to sit for mediation in order to resolve the dispute, and in case no solution is reached through this mediation proceeding, then the parties in dispute can move forward for Arbitration so that a situation agreement or solution is determined. This combination of Mediation with Arbitration is known Arb-Med Model. It is basically a hybrid model between two different forms of dispute resolution, which is time and cost effective and allows the parties to undergo a critical thinking of the issues at hand without the interference of a third party.

But then comes the demerit or hardship of the Arb-Med Model. In this model, one single person is expected to act as an arbitrator as well as a mediator, which are now two different positions to hold and are quite contradictory to each other. While both the Arbitrator and Mediator are required to be impartial, in case of a mediator, a mediator is required to talk to both the parties and hear their side of the facts and issues and then determine what the real issue is.

But this staying neutral might not be the case when it comes to an Arbitrator. Hence, resulting in a contradiction of the principles of one form of dispute resolution. Moreover, when it comes to an Arbitration, Arbitration highly formal hence making the entire proceeding Confidential, which again is a debatable thing in a mediation. Hence, making Confidentiality of the proceeding an issue in the proceedings that take place under the Arb-Med Model.

Moreover, this Arb-Med Model may not always be as cost-effective as it is claimed to be. At times, rather than be cost effective, it may become financially cumbersome for the parties. For, it may happen that the parties may not reach to a solution with the mediation proceeding, hence moving for Arbitration. Arb-Med Model is effective until the Parties in question come in with a mindset of resolving the dispute through Mediation. The moment this fails, it become burdensome on the parties, as there will be two proceedings of two different forms.

In the present scenario, many other nations are slowly amending their laws to introduce provisions that are based on this Arb-Med Model of China, for example, New South Wales Commercial Arbitration Act, Singapore International Arbitration Act and Hong Kong Arbitration Ordinance have made amendments to introduce the aspects of Arb-Med model. But, as mentioned before, this Arb-Med Model can be pretty debatable, as for one, it hands one person two roles, basically creating a mediator with an authoritative power, which is somewhat different the traditional mediation that is followed in Western countries.

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