Harmonious approach to disputes echoes ancient China
Mediation is culturally close to Chinese values. In ancient China, disputes were resolved in a manner similar to the more structured process of mediation that we know today.
Maintaining social harmony has always been a core Chinese value. A heavy reliance on fairness, justice and good faith ensured that this social goal was achieved. Even today, China's laws and statutes place an emphasis on these elements. For example, the concepts of fairness and good faith are repeated throughout the PRC Contract Law of 1999.
People were taught to be fair and honest. It was felt that one should always act in good faith to maintain harmony, while confrontation should be avoided for it might jeopardise that social balance. When disputes arose, people always tried to reconcile their differences through mild and friendly discussions which could address a variety of different issues.
Parties did not always emphasise their legal rights and entitlements. Non-legal matters and concerns were also discussed and taken care of.
When parties failed to resolve the disputes themselves, assistance was often sought from a neutral person - often an elder who was well-respected in the community or clan. This person would play a role similar to that of the mediator in modern terminology. His function was to bridge the gap between the parties, analyse and illustrate the merits and weaknesses of their respective arguments, make it known to them what each other's interest were, and finally, help them to reach a common goal.
In the past, there was generally a very negative attitude towards the law courts. People believed that "when one is alive, one should avoid going to court; when one is dead, one should avoid entering hell". This saying equates a court of law with being as bad as hell. As a result, people tried to avoid having disputes so that they wouldn't have to go near the courts.
This fearful attitude towards the courts made people more ready to resolve their disputes through amicable discussions. They were always ready and willing to make concessions. Giving and taking was something that they were prepared to do to ensure an early settlement of their dispute. They also focused a great deal on each other's interests, and how best to serve those interests.
Even where a neutral third party was involved in the discussion, it was not uncommon for this person to take a "mid-way" approach by giving each party something, so that both parties' interests would be met. Hence, the concept of giving and taking has a long history within the Chinese culture of dispute resolution. This was preferred over the "all or nothing" approach that is often the outcome of going to court.
The Modern Approach
Doesn't this pattern of resolving disputes and differences ring a bell? Today, the process used in China in times past would be called mediation. There are a lot of similarities between the process used then and the kind of mediation we are familiar with today.
For example, the very nature of mediation is interest-based rather than positional. As I have shown, in the past, discussion between parties focused more on interests than their legal rights and entitlements.
The role of that elderly Chinese man was the same as that of the mediator - to strike a balance between the parties. That "mid-way" approach coincided with the objective of mediation in serving the interests of both parties.
Furthermore, discussions with that elderly man might result in non-legal remedies, so long as they met the parties' interests and needs.
In mediation, remedies do not necessarily have to be a compensation recognised and allowed by the law. It could have been an apology or an acknowledgement of a sentimental or emotional issue. In some instances, these remedies could actually be a better form of compensation than legal remedies.
The only elements lacking in mediation and conciliation in ancient China were the protection of confidentiality and the privileged nature of the process. Even so, we can still see that mediation had a fundamental part to play in the dispute-resolution culture and history of ancient China.
Alice To is secretary of the Construction Mediation Interest Group of the Hong Kong International Arbitration Centre’s Hong Kong Mediation Council. The council, previously known as the Mediation Interest Group, was set up in January 1994 to promote the development and use of mediation as a method of resolving disputes.
The information contained in this article should not be relied on as legal advice and should not be regarded as a substitute for detailed advice in individual cases. If advice concerning individual problems or other expert assistance is required, the service of a competent professional adviser should be sought.