Comparing Types of Conflict Resolution: U.S. vs. Chinese Mediation

In our last blog, I suggested that principles of formal mediation arise from our uniquely American system which depends on citizen participation, consensus -searching and minimally a common vision. We might assume that the use of the same or similar terms, like mediation or arbitration, convey essentially the same meaning in other countries. However, dispute resolution in other societies is not the same as what has been described as our “institutional settlement” structure developed through citizen interest in the United States.

By way of comparison to our different conflict resolution strategies, China employs three types: (1) mediation supervised by the people’s court; (2) mediation supervised by an official tribunal and (3) mediation at the community level. All forms of mediation in China are controlled almost directly through the authority of the government.

China’s Mediation Program

The implementation of a Chinese mediation program became a priority beginning in 2008 because of the government’s determination to develop its commercial strength and influence both at home and abroad. Government-supported mediation programs were intended to combat the explosion of litigation which had occurred about the same time in the country and as a result of the government’s encouragement of commercial growth. As of 2021, more than 230,000 mediators had become available in court-controlled positions through 58,000 mediation organizations.

The government’s “people’s mediation” was represented by committees in each community as required by a 2011 law. Companion laws give jurisdiction to the People’s Court to confirm or enforce the results of community mediation. By the end of 2010, the country had 818,000 village mediation committees and 4,668,900 mediators. The central government remains intimately involved in this mediation initiative and retains strategic control of the process. Success of the program has not been reported. Given the source of such reporting and the progams’ attachment to government entities, it might be reasonable to assume that there is close to 100% “effectiveness”, however that might be defined.

The competing systems of the US and the People’s Republic of China obviously reflect their respective traditions and very different political systems. That fact is unsurprising. What is interesting to note is that the Chinese have at least borrowed the concept of mediation as a sort of baby step in the direction of decentralized citizen consultation and control. However, the Chinese system is a far cry from ours. Like all things in China, the vision of social and economic progress is the government’s, not the people’s vision and therein rests the difference.

Obligatory vs Participatory Conflict Resolution Strategies

In the US and western countries, successful mediation entirely depends on the parties’ agreement to participate. The process can be terminated at any point if any party chooses. The results are entirely the product of the collaboration or negotiation which occurs within the conflict resolution process. The process is also confidential and enforcement by a court is a direct choice by the participating parties. When we observe the principles of democratic dispute resolution applied in the context of a national controversy like gun control, it becomes apparent that the obstacles to a national resolution of this issue become daunting, mainly due to the lack of participation of willing and motivated parties.

How Can We Succeed in Mediation on a Macro Scale?

Our principles of “institutional settlement” or dispute resolution have society-wide application. They comfortably manage the disputes of a few expeditiously but require greater patience and time to provide a satisfactory resolution for the many. Voting is one obvious antidote and, in our system, regularly determines the identity and policies of the decision-makers. However, because of the complexity of size and the nature of issues at stake, the duration of our national conflict resolution process can often be prolonged and frustrating.

Tackling Political Deadlock

Mediators and the more effective politicians like to think that deadlock is always surmountable if the right creative solutions can be found. Often that involves an analysis of what is or has been missing from the negotiation …people or subject matters. Is the real party in interest at the table? Is there motivation on everybody’s part to reach an agreement or is one of the disputants just going through the motions either to learn more about an opponent’s case, to satisfy a judge to secure a trial date or, on a macro basis, an interest group in advance of an election?

Deadlock really means that the circumstances of the attempted negotiation should be re-considered. Perhaps ongoing mediation should be suspended, and bargaining dynamics re-examined. What might motivate the other side and who should be present when the process resumes?

In the context of the continuing gun control controversy, former Governor Kasich of Ohio has recommended that the country first return to state houses and state legislatures to achieve agreaable gun controls locally. When Frances Perkins confronted abysmal and seemingly intractable industrial conditions after the Triangle Shirtwaist Factory fire in 1911, she advanced reforms in the New York state legislature first. Her efforts on a local level ultimately led to reforms nationally in the Roosevelt administration. Kasich knows that changing the gun control debate’s focus to the state level is more likely ultimately to force wider acceptance of reforms and achieve concrete and discernible improvement in the underlying gun regulations- state by state. Kasich is offering a settlement option- a challenging option but, after all, democracy is always a challenge.

Bringing it Back to the Advantages of Formal Mediation

My intention in these first two blogs was to place formal mediation and its principles of dispute resolution in the broader context of our society, to suggest that our conflict resolution techniques have been indispensable and reliable tools in the growth of our laws and economy. Those tools are at least as, if not more, familiar to us than the complex rules of litigation. We understand the principles of negotiation and conciliation. In contrast, litigation puts our business interests or careers in the hands of other people, judges or juries. Parties who participate in mediation in this country directly control the process and the result. The process spares our resources and enables our business or our business careers to move forward while we remain in control and command of decision-making. Our history and growth have proven the utility of these dispute resolution tools.

P.S. Mediation Saves

In 2017, Acritas reported the results of its annual survey that showed that US companies spent 166% more annually on legal services than their global counterparts. Given the fact that the vast percentage of such litigation ultimately settles, it would seem prudent to explore informal and formal mediation options sooner rather than later. In the blogs that follow, I and others at Middlesex Mediation hope to review with you some of the specific issues that confront parties in dispute resolution and other options available in the Alternative Dispute Resolution process for early and satisfactory business resolutions.