Civil Litigation Being Quietly ‘Harmonized’Carl Minzner in The Wall Street Journal, May 31, 2011
Stanley Lubman, a long-time specialist on Chinese law, teaches at the University of California, Berkeley, School of Law and is the author of “Bird in a Cage: Legal Reform in China After Mao,” (Stanford University Press, 1999).
China’s leadership has put a priority on quieting social tensions and reducing public protests. To help accomplish these goals they have reversed policies of court reform that have been promoted for over two decades. This setback threatens the future of the criminal process, manifested in recent prosecutions, detentions and house arrests of individuals asserting fundamental rights that have been well-publicized outside China. Less visible, but equally disturbing, has been the effect of current leadership policies on procedures for resolving non-criminal cases — which are now increasingly subject to mediation rather than civil litigation.
Wang Shengjun, president of China’s Supreme People’s Court, underlined the importance of this shift towards mediation at a seminar of senior judges on Monday, urging the country’s courts to employ mediation in solving civil disputes even to the point of prioritizing it over the issuance of court rulings. “Mediation is an effective way to handle social conflicts and promote harmony,” Wang told the judges, according to the state-run Xinhua News Agency.
Mr. Wang’s comments draw public attention to a policy that for the past five years has dictated that civil disputes brought to the courts should, as much as possible, be settled by judges who “mediate” a result rather than formally adjudicating the case.
The extent to which mediation has already worked its way into the fabric of civil dispute resolution was illustrated by a senior judge from a high provincial court who recently told me that 50% of the cases handled by the court in the previous year had been settled by mediation. He said he expected a higher number would be similarly settled this year. In explaining to me why mediation was growing in popularity, he offered the same rationale as Wang Shengjun: “Because we are building a harmonious society.” Visiting a basic-level court with me the next day, he pointed to a woman in the room. “Last year, she settled 90% of her cases through mediation. She is a model judge!”
During the 1980s and 1990s, Chinese authorities substituted court procedures for much of the Maoist-inspired practices — including ideologically-tinged extrajudicial mediation — which had existed before China entered the current reform era. New laws clearly made mediation voluntary while new rules added procedural formality to trials. Legal education was less politicized. In addition, since 1996 lawyers have had to pass a national qualifying examination, and since 2002 judges have had to pass it as well. Professionalization of the judiciary was heavily emphasized. The number of civil cases resolved through mediation declined very considerably from the 1980s to the early 2000s, while civil litigation in the courts rose.
“Harmonious society” became the central political doctrine of the Chinese Communist Party in 2006, but starting by 2003, Fordham University’s Carl Minzner writes in a recent paper for American Journal of Comparative Law, there was already “turning away from trials and adjudication according to law.” The annual reports of the Supreme People’s Court, Minzer says, “reflect massive increases in mediation,” which, if accurate, would reflect an “astounding tripling” of the cases ended by mediation from 2004 to 2009.
The reason for the pressure to shift to mediation appears to be the concern that the Chinese judicial system cannot effectively use formal law in the face of local Party, government and commercial interests, even as economic development provokes an increasing number of disputes. Some court decisions are often difficult to enforce, and others may prompt petitions and protests to party-state officials outside the courts.
Under the current policy, according to Minzner, “extreme pressure is being brought on Chinese judges to do whatever it takes to resolve popular grievances in the name of upholding social stability.” (For an example of this pressure documented by Yang Su and Xin He see my previous column, “Uncertainty in China’s Legal Development, Part 2: Reforming the Courts.”) Contrary to the purpose of urging judges to forego legal procedures in order to quell social discontent, social stability may be harmed rather than strengthened, because citizens with grievances, such as unpaid factory workers, may decide that a popular demonstration is more likely to succeed than seeking redress in court.
Such pressure on judges is augmented by administrative practices within the courts. Judges are assigned cases monthly, and are thereby given targets at which they should aim. The targets create quotas, and mediation may shorten the time needed to dispose of some cases and meet those quotas. If judges do not meet their quotas, they may receive demerits under the responsibility system used to assess their performance. On the other hand, if they achieve high rates of mediated cases, they are financially rewarded. Targets for successfully closing cases through mediation have been established not only for courts, but for all entities that resolve disputes, such as local governments and mediation committees. The incentives — and the results — are moving in the wrong direction.
As Minzer argues, the political pressure imposed on the courts affects nothing less than the legitimacy of the courts, both in the eyes of affected parties and other persons who see the courts as lacking authority. The numerical targets that the courts must meet and the denial of access to courts to some prospective litigants –through mediation, for example — can only contribute to lower public confidence in a judicial system that many already question. Indeed, while promoting the use of mediation at Monday’s seminar, Wang Shengjun reminded judges that all the parties involved must agree to the process and warned that “courts should not force litigants to adopt mediation.”
Whether judges will be able to abide by those strictures when incentives push them to do otherwise remains to be seen.
It is obvious that the Chinese leadership is allowing social tensions, real or feared, to reverse its earlier commitment to legal reform. Even more potentially ominous is the rising practice of forcing “mediated” conclusions behind closed doors in cases that have attracted attention or generated petitions. But the grievances and protests will not disappear.
Although judicial reforms have been stalled or reversed, significant forces in Chinese society may continue to encourage hopes and pressures for their re-invigoration. As Professor Eva Pils of the Chinese University of Hong Kong has pointed out, the legal reforms of the 1990s fostered “a spirit of rule of law, rights protection, and constitutionalism, released into an atmosphere of burgeoning academic engagement with law, and greatly improved means of mass communication through the internet and other technological innovations.” Social tensions and protests have continued to rise—along with rights consciousness. Some citizens, such as rural and urban landowners whose land has been unlawfully taken by local governments, may not be satisfied with mediation and will continue to want access to stable legal institutions to settle grievances and afford them redress for violations of their rights.
In the past, the leadership encouraged some segments of Chinese society to expect that movement toward an increase in legality was possible. Current policy, however, affords little hope of seeing such a change materialize – and those who push for it are testing the boundaries of what the Chinese leadership will tolerate in its determination to maintain social order above all.