2 From mediation to litigation, and back to mediation

Chinese law, traditional or modern, is largely conceived of and perceived as a political and administrative tool. As such, law was and still is more concerned with vertical rather than horizontal relationships (Chen, Reference Chen2016a, Chapters 1 and 2). Even though civil and commercial matters were traditionally seen by government as ‘trivia’ that could be left to be regulated by communities and customs, government intervention was never far from the scene (Chen, 1995, Chapter 1). This is equally true in relation to dispute resolution, the principal traditional method of which is mediation.

Mediation has a long history in China and it is a well-known traditional method for dispute resolution. However, it is unclear precisely how long that history is. Some trace private mediation to as early as the Xia period (2070–1600 bc) (Hilmer, Reference Hilmer2009, p. 10), while others suggest that there were written records on mediation as a dispute-resolution method from the Western Zhou period (1100–771 bc) (Zhu, Reference Zhu2007, p. 455, note 1). What is clear is that, while mediation initially developed as a private process, the government has always had an interest in it. In fact, since as early as the Qin dynasty (211–207 bc), the government attempted to provide ‘guidance’ for mediation practice (Hilmer, Reference Hilmer2009, pp. 9–11) and, by the Ming dynasty (1368–1644), mediation had been institutionalised and subjected to some form of legal regulation (Zhu, Reference Zhu2007, p. 455).Footnote ³

Government involvement in mediation intensified in socialist China. Mediation was encouraged and practised in communist-controlled areas before 1949 and the now well-known ‘people's mediation committee’ was, in fact, first officially institutionalised during the anti-Japanese invasion period (1938–1945) in areas controlled by the communist army (Zhu, Reference Zhu2007, p. 45, note 3). Mediation continued to be subject to government regulation after the founding of the People's Republic of China (PRC) in 1949. In March 1954, the then-Council of Government (now the State Council) issued the Interim Provisions on the Organisation of People's Mediation Committees, which were among the first sets of regulations issued by the new government of the PRC. These provisions defined the people's mediation committees as ‘mass organisations’ whose work was to be guided by local government and local courts. As will be discussed below, this definition set the tone and established a foundation for the regulation and development of people's mediation in China.

In post-Mao China, the establishment of people's mediation committees was elevated to a constitutional requirement when the 1982 Constitution was adopted. Article 111 of the 1982 Constitution stipulates that

This requirement was then reflected in the first civil procedure law, the Law on Civil Procedures of the PRC (Trial Implementation) 1982,Footnote ⁴ Articles 6 and 97 of which required that all civil and economic disputes first undergo a mediation process. This compulsory requirement significantly facilitated the development of mediation in its initial stage in post-Mao China, even though comprehensive regulations on mediation were yet to emerge. In 1989, the State Council issued its Regulations on the Organisation of People's Mediation Committees.Footnote ⁵ These regulations provided, for the first time, comprehensive regulatory guidance on the establishment and operation of people's mediation committees established by village and resident committees. Although these regulations provided far more detail than the 1954 Interim Provisions, people's mediation committees continued to be defined as ‘mass organisations’ that are subject to government supervision.

The most important development in mediation has been the promulgation of the Law on People's Mediation in August 2010 (effective from 1 January 2011). The adoption of a national law is clearly indicative of the government's view on the importance of mediation as an alternative dispute-resolution (ADR) method and its functions in social control (Art. 1 of the Law on People's Mediation). People's mediation committees are defined, as they have always been, as ‘mass organisations’ for civil dispute resolution (Art. 7 of the Law on People's Mediation). They are subject to ‘guidance’ by the local judicial administrative authorities at the county level and ‘professional guidance’ by the basic-level courts (Art. 5 of the Law on People's Mediation). Further, local government at the county level and above must also provide and guarantee funding for mediation (Art. 6 of the Law on People's Mediation). Finally, training is to be provided to mediators by the judicial administrative authorities at the county level on a regular basis (Art. 14 of the Law on People's Mediation). Obviously, there is substantial government involvement in at least organising and funding people's mediation committees and the training of mediators.

The brief review of the historical development of mediation in China suggests that, not dissimilar to the conception of law in general in both traditional and modern China, there is an added dimension to Chinese mediation. That is, the Chinese government sees mediation, in today's modern language, as the ‘first defence’ in preventing and resolving disputes among the people and conflicts in society (Vice-Minister of Justice, 2010).Footnote ⁶ In this context, mediation is also a social-control mechanism, although mediation's social-control functions have varied significantly in traditional China and in post-Mao times (Cohen, Reference Cohen1966; Lubman, Reference Lubman1967; Fu, Reference Fu1992).

The establishment of a comprehensive legal framework on mediation from 1989 onward led to wide application of mediation, which may be divided into the following categories (Hilmer, Reference Hilmer2009, p. 12; Mo, Reference Mo, Wang and Zhang1997, p. 370; Bu and Huo, Reference Bu, Huo, Esplugues and Marquis2015, pp. 191–223):

• • people's mediation;

• • administrative mediation (including many forms of industry and specialised mediation);

• • institutional mediation/conciliation (mediation conducted by dedicated commercial mediation centres);

• • mediation in arbitration; and

• • court mediation.

Despite the legal and institutional development of mediation, empirical data suggest that the total number of people's mediators (many of whom were part-time and had little training in law or mediation) began to decline in the late 1980s, as did the average number of cases handled by each mediator (Zhu, Reference Zhu2007, pp. 456–459).Footnote ⁷ Court-conducted mediation in economic and civil cases decreased from 69 per cent and 76 per cent in 1989 to 36.7 per cent and 30.4 per cent in 2001 respectively, while, in economically developed urban areas, mediation accounted for just over 23 per cent of settled cases (though, in rural China, it was still about 50–70 per cent) (Peerenboom and He, Reference Peerenboom and Hen.d.). Similarly, the percentage of successful mediation in arbitration cases also declined during this period (Hilmer, Reference Hilmer2009, pp. 104–108). At the same time, administrative ruling and adjudication, as dispute-resolution methods, became much less used and much less effective (Tang, Reference Tang2017) and, concurrently, there came a phenomenal growth of litigation in courts (exceeding 10 million cases in 2009). This rapid growth in litigation led some prominent Chinese scholars to claim that China had entered ‘litigation society’ prematurely (China Youth Daily, 2010).Footnote ⁸

This decline in mediation could be explained by a number of factors, but chief among them were the increasing ease of access to civil litigation and the fact that, in economic and financial disputes, people are more likely to seek redress from the courts than from mediation (Zhu, Reference Zhu2007, pp. 455–466; Peerenboom and He, Reference Peerenboom and Hen.d.). There were also cases where disputants simply used mediation as a delaying tacticFootnote ⁹ and the increasing complexity of civil disputes also meant that judges were taking longer to mediate than to simply adjudicate (Peerenboom and He, Reference Peerenboom and Hen.d.). Such a decline in mediation and the corresponding increase in litigation were made possible by the adoption of a new Civil Procedure Law in 1991. The new Civil Procedure Law dropped the requirement under Articles 6 and 97 of the 1982 Civil Procedure Law that all civil and economic disputes first undergo a mediation process.

Governments at all levels became concerned about the decreasing use of mediation and, as a result, government authorities began working to restore the balance between mediation and litigation. Equally importantly, governments firmly believed that mediation is an important means to build a ‘harmonious’ society, especially in handling sensitive socio-economic rights cases, such as labour disputes and disputes in land acquisition and compensation. Additionally, courts need to prioritise the use of their limited resources and reduce costs in dispute resolution (Peerenboom and He, Reference Peerenboom and Hen.d.). (On the changes of judicial attitudes towards mediation, see Fu and Cullen (Reference Fu, Cullen, Woo and Gallagher2011, pp. 25–57).)

Thus, joint efforts by the Communist Party of China (CPC) and the central government began to emerge around 2002, with the central idea of creating the ‘Great Mediation’ of the Three Kinds (people's mediation, administrative mediation and court-conducted mediation).Footnote ¹⁰ To implement this ‘Great Mediation’ policy, a series of policy documents were issued by the General Office of the CPC Central Committee, the State Council and its ministries, and the Supreme People's Court, as well as local governments (Wu, Reference Wu2009). Among these documents were the Certain Provisions on the Work of People's Mediation, issued by the Ministry of Justice in September 2002 to supplement the 1989 State Council Regulations. These provisions re-emphasised the importance of mediation as a means of dispute resolution, clearly hoping to restore the ‘glories’ of mediation in China. Essentially, the ‘Great Mediation’ represents the joint and co-ordinated efforts of the CPC and the state to use mediation not only for private dispute resolution, but also as a mechanism for resolving social conflicts and maintaining social stability (Wu, Reference Wu2009). The nature of the ‘Great Mediation’ as a social-control mechanism was soon explicitly confirmed by the above-mentioned Guiding Opinion on Deepening the Promotion of the Great Mediation to Resolve Conflicts and Disputes (2011).

A significant development for mediation as a mechanism for dispute resolution was the 2008 adoption of the working principle of ‘Mediation as Priority and Combining Adjudication with Mediation’ by the Supreme People's Court (Research Office of the Supreme People's Court, 2010). After a period of implementation, this policy was formalised by the court when it issued the Certain Opinions of the Supreme People's Court on Further Implementing the Principle of ‘Mediation as Priority and Combining Adjudication with Mediation’ in 2010 (issued as FaFa (2010) No. 16 on 7 June 2010). These Opinions declared that the principle is a scientific conclusion formed after a deep analysis of the current situation in China, an effort to inherit and expand the meritorious tradition of people's legality and an adjudication innovation important for resolving social conflict, maintaining social stability and promoting social harmony (Preamble of the Certain Opinions of the Supreme People's Court on Further Implementing the Principle of ‘Mediation as Priority and Combining Adjudication with Mediation’). These Opinions stress the importance of mediation in all trial processes, from case acceptance and trial to enforcement in first-instance cases, appeal cases, retrials and Xinfang (administrative petitions).Footnote ¹¹ They emphasise that no opportunities for mediation, before, during or after trial processes, shall be lost and that all efforts must be made to ensure successful mediation. They call for the application of mediation, mutual agreement and co-ordination to be gradually expanded to administrative cases, criminal cases by private prosecution, minor criminal cases, civil compensation in criminal cases, state compensation cases and enforcement cases (Item 2 of the Opinions).Footnote ¹² The Opinions are not just about court-conducted mediation; they also refer to the promotion of the ‘Great Mediation’ of the Three Kinds (Item 1 of the Opinions) and to court facilitation of institutional mediation, through such mechanisms as confirmation of mediation agreements and their enforcement. Thus, the Opinions are intended to promote all types of mediation as effective alternatives to litigation. As a judicial practice, this policy change is a partial reversal of the early principle of ‘mediation as a priority’ in the 1982 Civil Procedure Law, which was dropped in the initial 1991 Civil Procedure Law. There seem to have been at least two principal reasons to partially revert to the practice of the 1980s: to address court-resource issues and to promote a harmonious society by preventing social conflict and maintaining social stability.Footnote ¹³

3 The development of arbitration and other alternatives

Disputes are not only settled by mediation or litigation. There has been rapid development of arbitration for commercial disputes and there are a variety of methods for settling disputes with governments, including administrative litigation.

The present legal form of arbitration in China emerged during the modern law reforms at the turn of the twentieth century. It is suggested that the earliest laws in China on arbitration were the Constitution for the Business Arbitration Office and the Working Rules for Business Arbitration Office, which were introduced by the then Chinese government in 1912 and 1913, respectively (Xu, Reference Xu1999; Tao, Reference Tao2004/2008, p. 1). Although these rules were introduced to deal with commercial ‘arbitration’ (gongduan in Chinese), the processes were effectively directed at consensus-building mediation and conciliation, as ‘arbitration awards’ could only become legally binding with the consent of the disputing parties (Xu, Reference Xu1999; Tao, Reference Tao2004/2008, p. 1). Interestingly, it was rules on labour arbitration, issued in the 1930s in both Kuomintang-controlled and communist-controlled areas, that actually laid the foundations for arbitration, albeit of an administrative nature (Xu, Reference Xu1999).

Arbitration was not only of an administrative nature; mediation was also part of the process of arbitration in the communist-controlled areas before 1949 (Xu, Reference Xu1999).Footnote ¹⁴ Thus, from the very beginning of their tentative development in the PRC in the 1950s, arbitration and mediation were the preferred means of resolving economic disputes (Tao, Reference Tao2004/2008, p. 2). Similarly, various regulations enacted in the 1950s and 1960s relating to economic contracts provided for the mandatory (and thus administrative) arbitration of economic contract disputes by government authorities at various levels (Tao, Reference Tao2004/2008, p. 2). At these points in time, party autonomy (an essential requirement of arbitration) did not exist. In other words, arbitration began its life in the PRC in the form of administrative arbitration and its operation became combined with mediation.Footnote ¹⁵

As far as domestic arbitration is concerned, arbitration of a Soviet-style administrative nature was established in the mid-1950s in China and remained in operation until the mid-1960s when the Cultural Revolution began (Xu, Reference Xu1999). Like many other aspects of Chinese law and practice, this form of arbitration resumed and developed rapidly in post-Mao China. The initial legal foundation for domestic arbitration in post-Mao China was established by the 1980 Economic Contract Law of the PRC (now repealed by the 1999 Contract Law), which was further consolidated and strengthened by the 1983 Regulations on Economic Contract Arbitration of the PRC.Footnote ¹⁶ As the titles of these laws suggest, they were only concerned with disputes related to economic contracts and were administered by various economic contract arbitration commissions that were established within the then State Administration of Industry and Commerce at both the national and local levels (Art. 2 of the Regulations of the People's Republic of China on Economic Contract Arbitration). Consequently, this type of arbitration was administrative in nature. Further, Article 26 of the 1983 Regulations on Economic Contract Arbitration required that, prior to arbitration, the arbitration commission should first attempt mediation to resolve the disputes after an investigation and clear determination of the allocation of fault between the parties. In addition to economic contract arbitration, the arbitration of other types of economic and commercial disputes (such as disputes concerning technology contracts, consumer-protection and residential-property contracts, and labour disputes) began to be developed by individual laws and regulations.Footnote ¹⁷

Thus, domestic arbitration developed rapidly, albeit in a largely ad hoc fashionFootnote ¹⁸ as legal foundations for the arbitration of the various types of economic and commercial disputes were established by different laws and regulations. By the time China had adopted its first comprehensive law on arbitration – the 1994 Arbitration Law – more than thirty arbitration commissions of various forms had been established in China (Tao, Reference Tao2004/2008, p. 3). Despite domestic arbitration being highly fragmented, arbitration and its development were strongly encouraged by the 1982 Civil Procedure Law of the PRC (Trial Implementation), which provided mechanisms for the enforcement of arbitration awards, both domestic (Art. 161) and foreign-related (Chapter 20 of the 1982 Law) in China.

In short, with the exception of foreign-related arbitration, the majority of arbitration commissions that existed before the major reform and reorganisation of 1995 were administrative in nature. The problems with the pre-reform arbitration system were quite obvious: there was a clear lack of independence and party autonomy. Furthermore, flexibilities, or, more precisely, ambiguities in the law, allowed parties to appeal to a court against arbitration awards on various grounds, consequently making awards of little binding force in nature (Tao, Reference Tao2004/2008, p. 4). Thus, comprehensive reforms were necessary and inevitable.

In August 1991, the Standing Committee of the National People's Congress (SCNPC) began the process of enacting an arbitration law with the principal objective of establishing a ‘modern’ arbitration system in China in line with international practices that would separate arbitration commissions from administrative authorities and recognise the principles of voluntariness, direct choice between arbitration and litigation, and finality of awards (Explanations on the Draft Arbitration Law of the PRC, 1994). Some three years later, on 31 August 1994, the SCNPC adopted the Arbitration Law, which came into effect on 1 September 1995. Unlike previous laws, this new Arbitration Law required that all existing arbitration commissions be reorganised in accordance with the new Arbitration Law and those that failed to do so would cease to exist from 1 September 1996 (Art. 79).

The reorganisation, initially conducted on a trial basis in select cities (Beijing, Shanghai, Tianjin, Guangzhou, Xi'an, Hohhot and Shenzhen), was soon implemented nationwideFootnote ¹⁹ and led to rapid developments in the establishment of arbitration commissions, most of which were established via the consolidation of the previously existing arbitration institutions.Footnote ²⁰ At the end of 2018, there were 255 arbitration commissions in China (Legal Daily, 2019). In 1995, Chinese arbitration commissions handled some 110,000 cases involving several hundred million yuan in disputes (Tian, Reference Tian2015). In 2017, arbitration commissions in China had dealt with more than 239,000 cases involving more than 533 billion yuan in disputes and, since the adoption of the Arbitration Law in 1994, China has dealt with, in total, more than 2.6 million cases, with more than 4 trillion yuan in disputes, concerning parties from more than seventy countries and regions by the end of 2017 (CIETAC, 2018; Legal Daily, 2019). The economic interests involved in conducting arbitration suggest that arbitration is now more an industry than a social-control mechanism, though administrative arbitration continues to serve social-control functions.

Regarding disputes with governments, there are various forms of administrative arbitration. As mentioned above, while the enactment of the Arbitration Law in 1994 and its subsequent reorganisation transformed administrative arbitration into a professional service, two specific types of arbitration have been excluded from the Arbitration Law: labour arbitration and arbitration over rural land-contracting disputes (Art. 77). The reason for this arrangement is that labour and land-acquisition disputes are seen by the Chinese government as having the potential to cause large-scale disruption to China's social order and stability and, indeed, they have done so in many parts of China in the past. Thus, the compulsory arbitration and mediation of labour and land disputes is, in some sense, part of the effort to maintain ‘social harmony and stability’. As such, administrative arbitration is not a private practice, but a government function directed towards social control. Administrative arbitration is not governed by the Arbitration Law; rather, it is regulated by specific laws, judicial interpretations and the various government policy documents. For instance, labour arbitration is governed by the Law on Mediation and the Arbitration of Labour Disputes (2007). There are also three sets of Supreme People's Court interpretations on the application of law issued before and after the adoption of the Law on Mediation and the Arbitration of Labour Disputes.Footnote ²¹ More recently, on 21 March 2017, eight government authorities, including the Supreme People's Court, the Ministry of Justice and the CPC's Office on the Comprehensive Management of Social Stability jointly issued the Opinions on Further Strengthening Mediation and Arbitration to Improve the Mechanism for Pluralist Dispute Resolution for Labour Disputes. These Opinions make it clear that resolving labour disputes is part of the comprehensive management of social order and social stability and that the resolution of any labour disputes must be co-ordinated by the Party Committees and government departments. With the direct involvement of the CPC, administrative arbitration has now become politicised.

In addition to administrative arbitration, there has been major development of administrative legislation – which regulates both administrative litigation and internal reviews of administrative acts – since the late 1980s. In 1989, the Administrative Litigation Law (ALL) was adopted (substantively revised in 2014). Technically, the adoption of the ALL signalled the separation of procedural and substantive administrative law (Zhang, Reference Zhang1989, pp. 18–19) and the formal institution of a distinct procedure parallel to the civil and criminal procedures. But, much more fundamentally, the ALL single-handedly changed the conception of administrative law in the PRC, indicating clearly that government acts could be externally reviewed and citizens could sue their own governments.Footnote ²²

Following the promulgation of the ALL, there came the Administrative Reconsideration Regulations (1990),Footnote ²³ the Administrative Supervision Regulations (1990),Footnote ²⁴ the State Compensation Law (1994, revised 2010 and 2012), the Administrative Penalties Law (1996, revised 2009 and 2017), the Law on Administrative Licensing (2003, revised 2019) and the Law on Administrative Coercive Measures (2011). The provisions of these laws have been further supplemented and clarified by various implementing rules issued by the State Council, its commissions and ministries, the Supreme People's Court and the Supreme People's Procuratorate.Footnote ²⁵ Together, these administrative laws establish a reasonably comprehensive legal framework, addressing disputes with and grievances against governments, as well as providing remedies for maladministration (see further Chen (Reference Chen2016a, Chapter 6)).

A unique yet peculiar Chinese internal supervision mechanism is the petition system (Xinfang, literally meaning ‘letters and visits’, which is, by its nature, a form of petition), which exists and operates in the party, government and judicial hierarchies. Under this system, aggrieved parties may, through letters or visits to officials and petition offices, petition the government for redress, expose instances of unlawful behaviour or simply communicate public opinion on economic or other reforms (Huang, Reference Huang1995, pp. 834–835).

As an institutionalised practice, Xinfang is both old and new. As a form of petition, it has long been a traditional practice for individuals and groups to bring government officials’ attention to their grievances and to seek solutions to their problems (Minzner, Reference Minzner2006, p. 104; Zhu, Reference Zhu2007, p. 454). In the PRC, Xinfang was initially established as a mechanism for political motivation and participation, information gathering and feedback, power supervision from the bottom up and as a release valve for citizens’ grievances (Zhu, Reference Zhu2007, p. 454; Minzner, Reference Minzner2006, pp. 110–120). It has now increasingly become a mechanism for reporting maladministration and corruption, and expressing grievances and finding remedies, most of which could be or should have been resolved through formal legal channels (Zhu, Reference Zhu2007, p. 454). The current Xinfang institutions and practices were first institutionalised in 1995 by the regulations on Xinfang, issued by the State Council (now replaced by a new set of regulations on Xifang, 2005).

Xinfang is seen by many as not only the final arena to fight for justice, but also a chance to be heard by higher-ranking government officials; as a result, many people have faith in the Xinfang mechanism rather than administrative litigation or other legal channels (a phenomenon referred to in China as ‘xin fang bu xin fa’) (Judicial Reform Leading Group, 2014). The large number of people using the Xinfang offices, especially those who come to Beijing for the redress of injustice, has apparently become a major concern for the government, which is obsessed with the notion of social stability. As a result, an Opinion on Handling Xinfang Issues in Accordance with Law was jointly issued in March 2014 by the General Offices of the Central Committee of the CPC and the State Council. The central purpose of the Opinion is to channel the complaints into legal mechanisms for dispute settlement (Li, Reference Li2014).

4 From ADR to pluralist dispute resolution (PDR)

In 2012, Xi Jinping took over the leadership of the CPC. By then, as discussed above, a diversified range of dispute-resolution methods including litigation, ADR and administrative review, and adjudication had been established. Xi came to power on the back of thirty-five years of economic success in China that led to strong confidence among the new leadership in asserting China's own model of governance, which is also being promoted as a potential global governance model (Chen, Reference Chen, Bedner and Oomen2016c). After just a few short years of Xi's leadership, we now observe that China is transitioning from a humble nation seeking development through ‘Reform and Opening Up’ to a nation that is not only self-confident, but also increasingly assertive in promoting its own development and governance models domestically and internationally. It is in this context that Xi declared that ‘Socialism with Chinese Characteristics has now entered into a New Era’ (Party Report, 2017; People's Daily, 2018). Although Xi did not explain what that ‘New Era’ means in theory or practice, Chinese practice so far suggests that, as far as legal reforms are concerned, it is an era fraught with uncertainties caused by certain radical changes in constitutional and institutional settings and in ideologies guiding the reforms (Chen, Reference Chen, Bedner and Oomen2016c). However, there is consistent emphasis that all reforms, often treated as matters of national strategy, are to be controlled by the CPC and, under its leadership, to be implemented in a comprehensive and systemic manner (Chen, Reference Chen2015; Reference Chen2016b). The reforms of the dispute-resolution system are no exception.

In Xi's China, the dispute-resolution system is elevated to a mechanism that is treated as part of a new governance model and its capacity is seen as being indicative of governance capacity and, hence, the reform of the dispute-resolution mechanisms forms part of efforts to modernise Chinese governance and governance capacity (Daily of People's Court, 2018; Hu and Long, Reference Hu and Long2016; Liu, Reference Liu2015). Thus, each and every institution and mechanism involved in dispute resolution, be it private (such as mediation and arbitration as dispute-resolution mechanisms and as processes) or public (that is the judiciary and its processes), has by now undergone intensive and extensive reforms (see further Wang and Chen (Reference Wang and Chen2019)). On the surface, reforms are carried out within each of the institutions, mechanisms and processes. Careful analysis soon reveals that these reforms aim at establishing a new integrated dispute-resolution system that forms part of the new Chinese governance model, addressing not only dispute resolution, but also social conflict and social stability.

Since the judiciary is seen as the ultimate guarantor of justice and – perhaps more importantly in practice – since it has a vested interest in diverting disputes to other methods for resolution, the leadership role in searching for new solutions naturally fell upon the judiciary, led by the Supreme People's Court. Not surprisingly, the CPC decided that the judiciary should take a leadership role in searching for mechanisms to ensure all dispute-resolution alternatives will play their proper roles and there will be mechanisms to link litigation, ADR and other dispute-resolution methods to form an integrated system of dispute settlement (Hu and Long, Reference Hu and Long2016).

This new dispute-resolution system is developed from the earlier reforms that were conducted on a trial-and-error basis, but its development has been significantly accelerated and its establishment was elevated to a national development strategy in late 2013. It is, however, still in the process of development. The system is described as a ‘Mechanism for Pluralist Dispute Resolution (PDR)’ (Duoyuanhua Jiufeng Jiejue Jizhi) – a term that is probably better translated as ‘Mechanisms for PDR’.Footnote ²⁶

As a term, ‘Mechanism for PDR’ first appeared in 2004 in the 2nd Five-Year Reform Plan of the People's Courts (2004–2008) (Liu, Reference Liu2015; Hu and Long, Reference Hu and Long2016), but it was not clear what it meant, nor did it attract much academic attention then. In July 2007, the Supreme People's Court established a research project on the ‘Reform of the Mechanism for PDR’. The project consisted of fourteen research subgroups on different topics whose participation included the then-Legislative Office of the State Council, the Ministry of Justice and several other research institutions. These groups were tasked with drafting reform plans for judicial mediation, administrative mediation, people's mediation, mediation by lawyers and other reforms (Liu, Reference Liu2015). In 2008, the reform of the Mechanism for PDR was included in the judicial reform scheme co-ordinated by the CPC Central Committee on Judicial Reform and, for this purpose, the Supreme People's Court was tasked with a leadership role. Specifically, it was decided that ‘the courts are to work out linking mechanisms for mediation and litigation, the Central Committee of the CPC is to issue relevant policies, and the reform results will be consolidated by legislation’ (Hu and Long, Reference Hu and Long2016). Not surprisingly, when the Supreme People's Court issued its 3rd Five-Year Reform Plan in March 2009, the same reform was once again on the court's agenda. At the same time, this Five-Year Reform Plan also emphasised the need to promote ADR (Liu, Reference Liu2015). It seems that the reform of the Mechanism for PDR firmly started in China even though the notion itself remained vague and ambiguous.

On the practical side, the initial efforts by the judiciary were to establish linkage between litigation and non-litigation methods for dispute resolution, with mediation as the focus of attention. Thus, in July 2009, the Supreme People's Court issued the Certain Opinions on Establishing and Improving the Linkage between Litigation and Non-Litigation Dispute Resolution for this purpose (Issued as FaFa (2009) No. 45 on 24 July 2009). These Opinions also formally started the process of judicial confirmation for mediation agreements – a process to ensure that mediation agreements will be legally enforceable by a court of law.Footnote ²⁷ Further, the 2012 revision of the Civil Procedure Law endorsed a practice advocated by the Supreme People's Court that was opposed strongly by practising lawyers and some scholars (Xu, Reference Xu and Li2012); that is, the revision now requires the courts to make mediation a priority where matters could be settled by mediation and if parties agree to such.

On 10 April 2012, the Supreme People's Court issued an important policy document: the ‘General Plan on Expanding Trial Reform of Mechanisms to Link Litigation and Non-litigation in Dispute Resolution’ (Issued as FaFa (2012) No. 116). The General Plan formally launched trial reform in forty-two courts to work out the links between litigation and non-litigation dispute resolution and, hence, to gather experiences for establishing and improving a system for PDR (Item 1 (1)). Although clear ideas were yet to emerge and the practical focus was still largely on mediation, the General Plan had by now suggested that the central idea was to establish an innovative system for the various dispute-resolution methods to work together rather than as separate alternatives.

The most important policy measures began to emerge from late 2013. At the 3rd Plenary Meeting of the 18th Central Committee of the CPC on 12 November 2013, the CPC adopted the Decision on Certain Major Issues in Comprehensively Deepening Reform (the 2013 CPC Decision). This Decision stipulates that a comprehensive dispute-resolution system be established as part of the task to establish an innovative social governance and management system (Item 49). On 23 October 2014, the Central Committee of the CPC further adopted the Decision Concerning Certain Major Issues in Comprehensively Moving Forward Ruling the Country According to Law (the 2014 CPC Decision, adopted at the Fourth Session of the 18th Communist Party of China Congress on 23 October 2004), as part of the efforts to implement the 2013 CPC Decision. The 2014 CPC Decision stipulates that

The 2013 and 2014 CPC Decisions made the tasks clear – to develop a comprehensive dispute-resolution system in which the various dispute-resolution methods are not treated as separate ‘alternatives’, but as mutually supportive components in an integrated system of PDR. In short, we began to see the emergence of an innovative movement from ADR to PDR, with litigation serving as the method of last resort and the courts providing practical assistance to ensure and secure the equal effectiveness of all ‘alternatives’ in dispute resolution. From this moment on, concerted and intensified efforts have been made to establish and improve the Mechanism for PDR through reform measures that strengthen each and every ‘alternative’ for dispute resolution, establish pathways for transit between the ‘alternatives’ and construct mechanisms to integrate all ‘alternatives’ into one unified system. Importantly, Chinese officials and scholars now hold the view that these CPC Decisions have elevated PDR from a dispute-resolution system to be part of the state strategic plan to build modern state governance and modern governance capacities (Daily of People's Court, 2018; Hu and Long, Reference Hu and Long2016; Liu, Reference Liu2015). Others went even further to claim that PDR is a ‘Chinese solution’ in the global ADR movement and that efforts to establish such mechanisms are part of broader attempts to establish the ‘right to speak’ (huayu quan) in global governance discourse (Hu, Reference Hu2017, pp. 37–38).Footnote ²⁸

The 2013 and 2014 CPC Decisions were soon implemented by the Opinions on Further Improving the PDR Mechanism (2015),Footnote ²⁹ the Opinions on Further Reform by People's Courts of the Mechanism for PDR (2016, issued as FaFa (2016) No. 14 on 28 June 2016), and most recently by the Opinions of the Supreme People's Court on the Establishment of One-Stop Mechanisms for Pluralist Dispute Resolution and One-Stop Centres for Litigation Services (issued on 1 August 2019). Although each has a different emphasis, the three sets of Opinions provide further details as to the direction of reform and required reform details.

Careful reading of the Chinese literature and policy documents seems to suggest that the notion of the Mechanism for PDR is now being used in two different contextsFootnote ³⁰: broad and narrow. The 2013 CPC Decision talks about establishing a comprehensive dispute-resolution system. The 2014 CPC Decision refers to strengthening mechanisms for prevention and resolution of social conflicts and disputes, and emphasises building and improving the interconnection and co-ordination of all kinds of dispute-resolution methods. The Decisions neither provide any further details nor elaborate on the idea of moving towards PDR. From the Chinese literature, it seems that the Opinions on Further Improving the PDR Mechanism do elaborate the various tasks, list the organisations involved and outline the objectives of the reform. The available Chinese literature clearly suggests that the notion is used in a broad sense. It is about a comprehensive mechanism that both prevents and resolves social conflicts and disputes and in which all measures for social control and dispute resolution are mobilised to work together as one ‘united force’ for social control and management. These measures include ADR, litigation, and administrative ruling and adjudication, and involve a great variety of organisations, including the judiciary (courts and procuratorates), administrative law-enforcement agencies (public-security authorities), social organisations (the Trade Unions, Women's Federations, Youth Leagues and Neighbourhood Committees) and, of course, the party organisations, as well as the offices of Comprehensive Control and Social Management (Zhongzhi Bang). In this broad context, the notion is used to refer to a system of mechanisms for comprehensive social control and the prevention of social conflict and instability under the general umbrella of social governance (Hu and Long, Reference Hu and Long2016; Liu, Reference Liu2015; Hu, Reference Hu2018; Li, Reference Li2016; Liang, Reference Liang2017). This broad context is clearly more political than legal.Footnote ³¹ However, the resolution of disputes, the failure of which is clearly viewed as the potential for social unrest and instability, is nevertheless included as part of the scheme for social control and management.

Conversely, the notion of the Mechanism for PDR is used in a narrow sense, referring to an integrated system consisting of legal mechanisms, the reform of which is led by the Supreme People's Court, which focuses on building links between and among ADR, administrative review and adjudication, and litigation (Supreme People's Court, 2019). The system seeks to encourage the engagement of all other organisations involved in social control and dispute resolution, as well as providing state supports to private dispute-resolution arrangements (such as mediation and arbitration) through a variety of mechanisms. These include judicial confirmation of mediation agreements, support for arbitration and the enforcement of arbitral awards, appointing mediators and arbitration institutions as court-sanctioned mediators and arbitrators, promoting the involvement of lawyers and industrial associations in mediation, establishment of ‘one-stop’ dispute-resolution mechanisms within the court system and shared information platforms for litigation and ADR (see the Opinions on Further Reform by People's Courts of the Pluralist Dispute Resolution Mechanism, and the Opinions of the Supreme People's Court on the Establishment of One-Stop Mechanisms for Pluralist Dispute Resolution and One-Stop Centres for Litigation Services). The Supreme People's Court has also tasked itself with promoting eventual law-making on PDR (see the Opinions on Further Reform by People's Courts of the Pluralist Dispute Resolution Mechanism). While the efforts of the judiciary include the engagement of all organisations involved in social control and dispute resolution, and these organisations are participants in the various shared platforms, the substantive efforts of the courts continue to focus on legal mechanisms for PDR, providing support for the various ‘alternatives’ as individual components, and building bridges for transit between and among the ‘alternatives’. Similarly, Chinese judges, in their extra-curial writing, refer to a twofold functionality: interconnectivity between and among the various dispute-resolution methods and organic linkage of the ‘alternatives’ into an integrated system for ‘one-stop’ resolution of disputes (see Hu, Reference Hu2018; Liu, Reference Liu2018). Academics stress the importance of establishing PDR procedures and institutions for private, administrative and judicial mechanisms to co-exist and for litigation and ADR to support each other (Fan, Reference Fan2017, pp. 48–49; Tang, Reference Tang2017).

In a nutshell, the ‘Mechanism for PDR’ refers, in its narrow sense, to an integrated system consisting of mechanisms that allow all kinds of dispute-resolution methods of a private, administrative and state nature (such as mediation and conciliation, arbitration, notary public dispute resolution, and administrative rulings, reconsideration and litigation) to work together in a co-ordinated manner, not as competitors or as simple alternatives, but as mutually supportive components with equal legal effect that transit from one to the other along clearly defined pathways (Item 2 (2) of the Opinions on Further Reform by People's Courts of the Pluralist Dispute Resolution Mechanism). Ultimately, it is also to ensure that litigation is the last resort – not the first choice – and that the resolution of disputes will be the responsibility of a variety of institutions and authorities (Tang, Reference Tang2017). It is in this sense that the recent reform is a movement away from a system consisting of largely separated ADR, administrative measures and litigation to a comprehensive and integrated system of PDR, and such a reform has so far included the efforts and measures to build links, to strengthen individual components and to integrate them into a co-ordinated system (for a detailed study, see Wang and Chen (Reference Wang and Chen2019)).

5 Concluding remarks

It is probably true that the initial idea of integrating the various dispute-resolution methods into a comprehensive system and co-ordinating their operations has a twofold purpose: to save judicial resources and to establish a strong mechanism for comprehensive social control. While noting that the development of PDR is ultimately aimed at establishing a social-control mechanism, we should not ignore the achievements and progress made in relation to PDR as a dispute-resolution mechanism. Indeed, efforts towards building and strengthening PDR have seen the strengthening and further development of mediation and arbitration, as well as the establishment of various mechanisms for ADR and litigation to work together as a ‘united force’ for dispute resolution. Integrating ADR and litigation into a coherent and co-ordinated system for dispute resolution makes enormous sense in China, but such integration must be built upon recognition of the fact that mediation and arbitration are essentially private arrangements based on voluntary participation and the equal footing of both parties. Thus far, judicial efforts to co-ordinate them to work simultaneously and transit from one method to another have been positive, representing a Chinese innovation in dispute resolution. As a mechanism for dispute resolution, it is innovative and could be an efficient and effective strategy for dispute resolution, and consequently enhance access to justice for disputants.

The development is, however, also uncertain and potentially risky. The mechanism could be used as an instrument for social control and an otherwise innovative reform may be politicised. It is probably well intended that all social forces are mobilised to prevent and resolve social conflicts and disputes, but the involvement of many government authorities (such as police, party authorities and the offices of Comprehensive Control and Social Management) and ‘mass’ organisations (such as trade unions, women's federations, youth leagues and neighbourhood committees) may politicise and undermine reform efforts that are meant to secure efficient and effective dispute resolution and to professionalise it (see Items 6, 12 and 13 of the Opinions on Further Reform by People's Courts of the Mechanism for Pluralist Dispute Resolution, which list the various organisations that will be mobilised to assist dispute resolution). Further, the establishment of the various platforms that allow information to be shared among many state and non-state organisations without a clear and strict policy on access is likely to undermine the confidence of disputing parties, who are rightly concerned about the potential for breaches of privacy and confidentiality (see Items 4–14 of the Opinions on Further Reform by People's Courts of the Mechanism for Pluralist Dispute Resolution, which outline the various shared platforms for dispute resolution). Finally, social control and management – that is, the prevention and resolution of social conflicts – is not the same as dispute resolution and the difference between them is fundamental in nature. In this sense, the use of PDR in a broad context is not particularly conducive to the reform of dispute resolution in China. If the efforts to establish and improve PDR are to have any credibility in international commercial dispute resolution,Footnote ³² or if China wishes to present these efforts to the world as ‘Chinese solutions’ in the global movement of ADR (Hu, Reference Hu2017, pp. 37–38), it needs to narrow down its application of the ‘Mechanism for Pluralist Dispute Resolution’ to exclude social control and management, as the latter belongs to an entirely different domain and addresses an entirely different type of social problem.

Until now, as evidenced in the various documents issued by the Supreme People's Court on building and strengthening the Mechanism for PDR, there is little mention of the different natures of the various dispute-resolution methods. It is, however, important that the different natures of these methods are recognised and respected, as they emerged to address different types of conflicts and disputes. It is understandable that judicial resources are now stretched to the point that disputes should be diverted to other alternatives, but it is also important to remember that access to justice must be upheld as the first principle in dispute resolution.

While, at the national level, the movement towards PDR is largely guided by policies, some local governments have already moved to legislate the practice. Thus far, four local legislatures have issued rules on this matter.Footnote ³³ While much of the focus of these local rules is on mechanisms for the smooth co-ordination and operation of mediation, arbitration, administrative adjudication and litigation, all of these rules were enacted as part of social-control efforts, involving the offices of Comprehensive Control and Social Management as coordinators of PDR. In other words, dispute resolution and social control continue to be mixed, and this approach, though conducive to the prevention and resolution of social conflicts, does not sit well with the fundamental nature of ADR, even though ADR often needs the backing of state power to be efficient and effective. As such, the movement towards PDR is, to say the least, fraught with uncertainties as to whether it is about dispute resolution (and hence access to justice) or social control.