What are the difficulties and problems facing the current work of people's mediation?

Since ancient times, China has had a legal and cultural tradition of mediation in the countryside, clan mediation, guild mediation, and neighborhood mediation. Since the time of the democratic revolution, on the basis of critically inheriting the traditional mediation system, we have continued to give new content and vitality to this mode of dispute settlement, and gradually formed the current people's mediation system under the auspices of grass-roots mass self-governance organizations, which resolves disputes on a voluntary basis and in a fair and lawful manner. For more than half a century, the people's mediation system has played a role that should not be underestimated in resolving disputes, easing social conflicts and stabilizing social order. The transformation of the country from a planned economy to a market economy and from "rule of man" to "rule of law" in its approach to governance has led to tremendous changes in the structure of society, in the psychological structure of its members, and even in the behavioral patterns of dispute resolution, which have been hailed as the "flower of the Orient. Whether people's mediation, known as the "flower of the East", has become the "yellow flower of yesterday"? In the era of the rule of law, the legitimacy and legality of the people's mediation on the existence of a realistic basis? After the advent of the litigation era, whether it contains the people's mediation once again the opportunity to rise?

First, after the litigation era, the structure of the dispute resolution system rationalization

According to the function of the litigation system in the dispute resolution system, the history of dispute resolution in China can be divided into three phases: "pre-litigation era" (pre-litigation era), "litigation era" (litigation era), "litigation era" (litigation era), "litigation era" (litigation era), "litigation era" (litigation era), "litigation era" (litigation era) and "litigation era" (litigation era). p> According to the function of the litigation system in the dispute resolution system, the history of dispute resolution in China can be divided into three stages: "Pre-litigation era" (Pre-litigation era), "Litigation era" (Litigation era), and "Post litigation era" (Post litigation era). "In China, the period before the 01's can be called the pre-litigation era, after that, into the litigation era. In the pre-litigation era, litigation was not the main method of dispute resolution. With the reconstruction of the legal system and the development of the commodity economy, people rely more and more on litigation to resolve disputes. As a result, non-litigious methods of dispute resolution, such as, for example, mediation, which was once prevalent, gradually fell out of favor. The main feature of the litigation era is the gradual homogenization and centralization of dispute resolution. Its main problem is the high cost of litigation and time consuming. The enhancement of social complexity and diversity of disputes requires the diversification of dispute resolution methods. The post litigation era is an era in which civil disputes can be reasonably resolved by a variety of ways." [1]

From the statistics since 1986, the number of cases heard by the people's courts has skyrocketed. From the former litigation era to the litigation era, not only the number of lawsuits to resolve disputes is growing, the structural proportion of lawsuits and people's mediation in the dispute resolution system has also changed greatly. 1990, the total number of disputes in people's mediation was 7.40. 920,000, and the number of cases of first instance of civil cases in the same year was 2,916,774, the number of lawsuits was equivalent to 39.40% of the number of cases of mediation, while in 1998, the number of cases of first instance of civil cases reached 3.36 million. In 1998, the number of civil cases of first instance reached 3.36 million, and the number of lawsuits was already equivalent to 63.80% of the number of mediated cases. [2] According to relevant sources,) the ratio of the number of litigated cases to the number of mediated cases has been basically equalized in 2001. Throughout the 20 years from 1980 to 2000, the development trend of the organization and performance of people's mediation, people's mediation reached a climax in the mid-1990s after a gradual downward trend, the number of mediators and mediated disputes is gradually decreasing. The structural characteristics of a dispute resolution system characterized by "strong litigation and weak mediation" have taken shape. Whether a society's dispute resolution function can operate benignly is largely determined by the structure of its dispute resolution system. The changes in the structure of the dispute settlement system in the litigation era reflect, on the one hand, the strengthening of the judicial function in the process of the rule of law; on the other hand, the high expectations of the judiciary have also led to the structural imbalance of the dispute settlement system. Litigation era of "strong litigation, weak mediation" and the former litigation era of "emphasize the solution, weak litigation", are the same dispute resolution system structure imbalance. The high cost of litigation, litigation delay and judicial corruption can be said to be the litigation era dispute resolution system structure imbalance brought about by the first of all the disadvantages. From the law of supply and demand of dispute resolution resources, when the demand for a dispute resolution resources far exceeds its supply capacity, will inevitably lead to the use of such resources difficult, costly and delay is inevitable; with the rising scarcity of such resources, the master of such resources to rent-seeking possibilities will be increased, which creates a conceivable space for judicial corruption. Dispute triggers are multi-faceted, multi-level, dispute resolution methods and approaches should also be multi-faceted, multi-channel, litigation is a key element in the multi-disputes resolution mechanism, but the carrying capacity of the litigation is limited, the load is too heavy will inevitably damage the legitimacy of the litigation foundation - procedural justice, and thus undermine the judicial justice. Justice, and thus damage the credibility of justice. Therefore, the transition from the litigation era to the post-litigation era has its own intrinsic inevitability,

or a kind of purposefulness and lawfulness of the development of the unity of the direction. Post-litigation era is precisely seeking the rationalization of the dispute resolution system structure of the era, it will be deconstructed in the litigation era dispute resolution system structure features at the same time, the construction of litigation, mediation, and other dispute resolution **** with the development and mutual promotion of the dispute resolution system. For the time being, it is difficult to accurately quantify the reasonable, balanced, benign interaction of the dispute resolution system structure, however, change the "strong litigation, weak mediation" features of the dispute resolution system structure, improve the people's mediation system, and further enrich and strengthen the function of the people's mediation is obviously the first step towards the post-litigation era.

Second, after the litigation era, the people's mediation and the market economy

After the litigation era is the era of increasing prosperity of the market economy, the market economy and its support of the mainstream belief system has the choice of the people's mediation of this dispute resolution mode of intrinsic demand? Dispute resolution methods have inherent consistency and harmonization with a society's economic base and mainstream belief system. Traditional mediation, as the mainstream dispute resolution method in ancient Chinese society, is integrated with the Asian mode of production mentioned by Marx, Confucianism, which advocates the moral values of "peace is precious and letting is wise", and the world is civilized by rituals, music, benevolence and righteousness. People's mediation, as an important way of resolving internal conflicts among the people, has been revitalized and envied by Westerners during the period of planned economy under the inspiration of ****productivist morality with collectivism and dedication as its keynote. Under the conditions of a market economy, is there still room for people's mediation to gain enough operational energy to survive? The distinctive feature of market economy society is the separation of state and society. The society under the market economy system is a relatively separate society from the state, the society is the field of people's pursuit of material wealth, spiritual wealth and private interests, is within a certain range of self-management, self-education, self-service field. A market economy is not only an economy based on the rule of law, but also an economy of social autonomy. Therefore, the development of a market economy inevitably requires the relative separation of the State and society, so that society can develop in accordance with its own laws of development; at the same time, this is also a need to construct an "effective government" and enhance the capacity of the State. A market economy objectively requires more social autonomy to integrate society. People's mediation, as an autonomous system for resolving disputes, belongs to the category of social autonomy. People's mediation is not an appendage of the planned economy, and the highly prosperous market economy in the post-litigation era has created a broader space for its development.

A market economy is a society with a burgeoning sense of rights, a society that highly respects individual rights, and the transformation of the planned economy into a market economy means the arrival of the era of rights. Litigation is the last barrier to protect individual rights, but there are many obstacles to the utilization of litigation by citizens due to psychological, economic, environmental, and litigation services' own deficiencies. The lower the likelihood of litigation utilization, the greater the likelihood that the right to sue will be eroded, and the more difficult it will be to protect the right. [3] In China, where the urban-rural divide is difficult to eliminate in a short period of time, the contradiction between the protection of rights and the utilization of litigation is particularly prominent. People's mediation is precisely the institutional setup with great potential to alleviate this contradiction. Although people's mediation faces a dilemma due to the lack of ethical norms such as honesty and the difficulty of establishing a trust mechanism in China's nascent market economy, the advantages of people's mediation in terms of flexibility, convenience, and accessibility to the main bodies of the market economy are irresistibly appealing. Post-litigation era is to further raise the banner of the protection of rights in the era, for the right to consult and dialog the psychological ****ming will surely make the people's mediation renewed vitality.

Third, after the litigation era, people's mediation and the rule of law

After the litigation era is the concept of the rule of law and the practice of the rule of law is maturing. People's mediation is to promote the rule of law? Or does it stunt the process of the rule of law and erode the spirit of the rule of law? This is indeed a problem. Hegel, in his Philosophy of World History, argued that the law of ancient China lacked a principle on the whole, and that it did not distinguish between the moral and legal spheres. [4] Traditional mediation is closely related to the "rule of morality" and "indoctrination" and other forms of national governance. Unlike traditional mediation, people's mediation was given a completely different political connotation. In the Maoist era, dispute resolution was a political act. Mediation was the expression of party ideology in practice. "Mediation has been developed as an instrument of mobilization, linking dispute settlement with ****animalist attempts to reconstruct society and to adapt dispute settlement policies to the needs of socialist construction." [5] Admittedly, there is a certain isomorphism between people's mediation and the way the state was governed during the planned economy. At the same time as the transformation of national governance, the organizational form and working method of people's mediation have not been adjusted accordingly, which is an important reason for the structural change of the dispute resolution system in the litigation era. On the other hand, the misinterpretation of the connotation of the rule of law is also a reason that should not be ignored; since the 1990s, the rule of law has almost become synonymous with litigation, and the principle of final judicial settlement has been expanded and understood. Such a "rule of law atmosphere" on the one hand, leading to the public's high expectations of the litigation, the community's positive encouragement of litigation; on the other hand, it also depresses the value and legitimacy of the people's mediation.

In fact, the promulgation of the Regulations on the Organization of the People's Conciliation Committees in 1898 constituted a watershed in the history of the development of people's conciliation. Previously, people's mediation was based on policies and ideologies, etc. The 1898 Ordinance established three principles of people's mediation: the principle of law, the principle of voluntariness, and the principle of not restricting the right of appeal. The establishment of the principle of mediation in accordance with the law laid the foundation for the affinity of people's mediation with the rule of law. From the perspective of contemporary people's mediation practice, mediation in accordance with the law and other mediation methods such as mediation in accordance with reason and custom are not diametrically separated, but are in a state of intermingling. This state of intermingling precisely shows that contemporary mediation in a society governed by the rule of law is a "contractual agreement" containing both self-interested motives and *** with the same motives, and is a state of *** existence originating from trust. "Thus, mediation under the conditions of legalization can exist side by side with the full discussion of opposing claims and the procedures established for that purpose, and with the professional activity of the jurist. It is through the mediating link of the contractual relationship that mediation and the rule of law are united, - the judicial process and the private legal order." [6] At a deeper level, although, mediation can only create norms to a limited extent, the role mediation plays in promoting the rule of law cannot be ignored if adequate conditions are provided for the exchange between mediation and the formal legal system. For example, (1) it promotes reflection on the legal system and the disputing parties, and actively reconciles the substantive law and the claims of the disputing parties; (2) it greatly increases the opportunities for legal development through competition and choice between norms, in order to bridge the fissure between the substantive law and the norms of life; (3) it makes judgments about the relationship of rights based on the specifics of an individual dispute, and facilitates the concreteness of the substantive law; and (4) it makes the potential dispute outwardly visible, expanding the need for procedural law; (4) developing rules of procedural law by integrating the rules of everyday conversation and the norms of behavior within the procedure in a way that is more favorable to the parties; and (6) balancing formal and substantive justice by partially relaxing the requirements of strict trial procedures. Thus, mediation and the legal trial mechanism are extremely close to each other in that they both add to the opportunity for legal development in the narrow zone between legality and illegality. [7] From this point of view, people's mediation is not the antithesis of the rule of law, not only will not block the process of the rule of law, erosion of the spirit of the rule of law, on the contrary, the people's mediation and the rule of law with the affinity of the people's mediation can become the rule of law to promote the development of the force. Since the 1960s, the rise of mediation-centered ADR in developed countries where the rule of law prevails has confirmed the above assertion. China is still in the stage of establishing the rule of law, and the judiciary plays a pivotal role in promoting the rule of law, but strengthening the judiciary is not contradictory to the establishment and improvement of extra-litigious dispute resolution mechanisms, including people's mediation. From the worldwide practice of the rule of law, whether in the same stage of building the rule of law or deepening the rule of law in various countries, although all shoulder the historical responsibility of strengthening the judiciary, in the process of judicial reforms, including mediation, including the dispute resolution mechanism outside the litigation without giving enough attention and attention.[8] This is the first time in the history of the rule of law in the United States. [8] This is also a transitional country judicial reform must have a forward-looking, transcendent made, after all, the rule of law developed countries of the current predicament to the construction of the rule of law, deepening the rule of law of the country foretells the picture of the future.

The voluntary negotiation of people's mediation, the relative confidentiality of the people's mediation process, the simplicity and efficiency of the people's mediation procedure, and the low cost of people's mediation are the unique advantages and charms relative to the litigation process. In the post-litigation era, civil disputes will continue to increase in number and become more complex in terms of type and nature, and dispute resolution is facing more severe challenges. Breaking through the "myth" of litigation, improving and perfecting the people's mediation system in terms of institutional structure, restoring and strengthening its status in the eyes of the people, increasing its utilization rate and effectiveness in resolving disputes, and rationalizing the structure of the dispute resolution system are the ideal paths to meet the challenges. The return of people's mediation in the post-litigation era is a requirement to safeguard the parties' right to procedural choice, relieve the pressure on the courts and improve the quality of justice. The return of people's mediation in the post-litigation era is bound to create a new picture of the rule of law in the $% century.

Notes:

[1] Zhang Weiping, Basic Ideas for Reform of the Civil Justice System in China, Social Science in China, Summer, 2002. Zhang Weiping, Basic Ideas for Reform of the Civil Justice System in China, Social Science in China, Summer, 2002.

[2] The above data are from the China Law Yearbook.

[3] Xia Yong, Toward the Age of Rights: A Study of the Development of Civil Rights in China, China University of Political Science and Law Press, 2000 edition, p. 275.

[4] Han Dayuan: The History and Idea of the Rule of Law in East Asia, Law Press, 2000 edition, p. 20.

[5] Qiang Shigong: Mediation, the Rule of Law and Modernity: A Study of China's Mediation System, China Legal Press, 2001 edition, p. 312.

[6] Ji Weidong: The Construction of Rule of Law Order, China University of Political Science and Law Press, 1999 edition, pp. 388-389.

[7] Qiang Shigong, Mediation, Rule of Law and Modernity: A Study of China's Mediation System, China Law Press, 2001 edition, p. 6.

[8]See Initiatives in Legal and Judicial Reform.

Author: Han Bo Tsinghua University Law School