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IN SEARCH OF HARMONY_ THE ALTERNATIVE DISPUTE RESOLUTION

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IN SEARCH OF HARMONY_ THE ALTERNATIVE DISPUTE RESOLUTION Powered By Docstoc
					Omid Safa December 2, 2008

IN SEARCH OF HARMONY: THE ALTERNATIVE DISPUTE RESOLUTION TRADITIONS OF TALMUDIC, ISLAMIC , AND C HINESE L AW Introduction Contentious, costly, and slow, the viability of litigation as a dispute resolution tool wanes with each passing year. In its place, prospective litigants increasingly demand cheaper and more efficient means of resolving their disputes. Alternative dispute resolution (“ADR”) techniques, like mediation and arbitration, often provide parties with the added freedom and flexibility to achieve creative, win-win solutions in a timely fashion. These favorable characteristics have generated a growing interest in ADR among American legal scholars. One avenue of particular interest, is the use of ADR in different legal traditions. Though there is a common misperception that ADR is a novel western idea, many eastern legal systems have employed similar techniques for centuries. 1 In such systems, the use of ADR frequently stems from deeply held religious, ethical, and philosophical values. In light of their experience, such systems offer valuable perspectives on the virtues of ADR, and its ideal role in the resolution of everyday disputes. The following discussion examines three legal systems with longstanding ADR traditions – the Islamic, Talmudic, and Chinese.2 The discussion begins with a general introduction to the Islamic legal system in Part I. Part II describes the dispute resolution techniques of the system and explores their roots in the Qur‟an. Next, Part III provides a general introduction to the Talmudic legal system. Part IV

1 2

See ALBERT FIADJOE, ALTERNATIVE DISPUTE RESOLUTION: A DEVELOPING WORLD PERSPECTIVE 2 (2004). For the purposes of this paper, “alternative dispute resolution” represents any dispute resolution mechanism

designed to avoid formal litigation in the courts. See LEGAL INFO. INST., CORNELL UNIV. L. SCH., http://topics. law.cornell.edu/wex/adr (adopting essentially the same definition). The bulk of the discussion focuses on the use of mediation, however, given its status as the most popular form of alternative dispute resolution. See PRACTICE CHECKLIST MANUAL ON ALTERNATIVE DISPUTE RESOLUTION 80 (John B. Spitzer ed., ALI-ABA 2002) (noting the popularity of mediation).

describes the techniques employed in the Jewish tradition, while reconciling the concept of ADR with the divine nature of Talmudic law. Part V then offers a general introduction to the Chinese legal system. Part VI describes the dispute resolution techniques of the Chinese system, and examines their grounding in Confucian ethics and philosophy. Finally, Part VII draws parallels between the systems, while offering some closing remarks on the adaptability of ADR methods across cultures.

I. THE ISLAMIC LEGAL SYSTEM For almost fourteen-hundred years, Muslims have looked to Islamic law to bring order and structure to their lives. 3 Emphasizing divine principles, the law seeks to instill Islamic society with a deep sense of moral responsibility and justice. 4 The Islamic legal system extends to all aspects of life. 5 Not limited to the typical legal-illegal dichotomy, it categorizes the full panoply of human behavior amongst five categories – obligatory, commendable, permissible, reprehensible, and forbidden. 6 Islamic law is a text-rich tradition, defined by its sources. The Qur‟an is the revealed scripture, and founding document, of Islam. 7 According to the Islamic faith, the Qur‟an “is the uncreated word of God, believed to have been revealed word for word in the Arabic language through [the] prophet, Muhammad.” 8 Incorporating

3

See JACOB NEUSNER & TAMARA SONN, COMPARING RELIGIONS THROUGH LAW: JUDAISM AND ISLAM 46-47

(1999).
4

See M. MUKARRAM AHMED, ENCYCLOPAEDIA OF ISLAM, 125 (2005); Maqbul Ilahi Malik, The Concept of

Human Rights In Islamic Jurisprudence, 3 HUM. RTS. Q. 56, 57 (1981).
5 6 7 8

See NEUSNER & SONN, supra note 3, at 57. See id. at 57-58. Id. at 39. Id. at 39-40.

2

over six thousand verses, the Qur‟an sets forth the most fundamental principles of Islamic law.9 These principles generally come in two forms, known as ibadat and mu‟amalat, Covering matters like prayer, fasting, and pilgrimage, ibadat principles

respectively. 10

address an individual‟s responsibilities to God; while mu‟amalat principles govern matters of human interaction like marriage, divorce, inheritance, and theft. 11 The oral tradition, or Sunnah, is next in the hierarchy of Islamic legal sources. 12 The Sunnah expands upon the principles set forth in the Qur‟an, by passing on the teachings of the Prophet Mohammad as demonstrated by his words and conduct throughout his lifetime. 13 “[T]he content of the Sunnah is found in hadith… statements which have been passed on or transmitted in a continuous and reliable chain of communication, from the prophet himself, to present adherents.” 14 Each hadith statement incorporates two parts: a normative rule and its chain of origin. 15 The chain of origin establishes the reliability of the rule by documenting its links to prior authoritative sources. 16 The hadith statements include a wealth of material, including Qur‟anic stories, proverbs, anecdotes, history, and even guidance on the most minute details of daily life. 17

9

NEUSNER & SONN, supra note 3, at 46. See Id. at 49. Id. BERNARD G. WEISS, THE SPIRIT OF ISLAMIC LAW 23 (1998). Id. at 12. H. PATRICK GLENN, LEGAL TRADITIONS OF THE WORLD 174-75 (3d. ed. 2007). See WEISS, supra note 12, at 12-13. NEUSNER & SONN, supra note 3, at 52. Id. at 53.

10 11 12 13 14 15 16 17

3

Over time, the collective efforts of Islamic legal scholars has generated consensus on many issues. Such consensus represents another source of Islamic law, known as Ijma. 18 Akin to prior precedent in the common law tradition, Ijma represents settled law with binding authority.19 Thus, when deciding a dispute, an Islamic jurist, or kadi, must investigate

whether the issue in question is settled by Ijma. 20 If the matter is conclusively resolved by Ijma, the kadi must adhere to the established rule. 21 As a practical matter, however, the existence of divergent schools of Islamic legal thought complicates the notion of legal consensus. 22 The four major schools – the Hanafi, Shafi, Hanbali, and Maliki – may each have their own version of consensus, given their differing views on the authoritative weight of certain passages in the Qur‟an or hadith statements in the Sunnah. 23 The final major source of Islamic law is analogical reasoning, known as Qiyas. 24 Qiyas offers a means of extending the Qur‟an, the Sunnah, and the Ijma to novel matters not explicitly covered in their texts. 25 As an accepted authoritative source, Qiyas must be

distinguished from independent legal reasoning and problem solving, known as Ijtihad – a controversial issue among the different schools of Islamic legal thought. 26 In the Islamic legal system, disputes are resolved in accordance with the principles set forth in these sources. As in other legal systems, this process may sometimes manifest itself

18 19 20 21 22 23 24 25 26

MUHAMMAD RAZI, ENCYCLOPAEDIA OF ISLAMIC J URISPRUDENCE 95 (2007). Id. See id. Id. See FRANK E. VOGEL, ISLAMIC LAW AND LEGAL SYSTEM: STUDIES OF SAUDI ARABIA 48 -50 (2000). See NEUSNER & SONN, supra note 3, at 57. RAZI, supra note 18, at 100. Id. at 101. See WILLIAM MONTGOMERY WATT, ISLAMIC FUNDAMENTALISM 106-07 (1989).

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in the form of formal litigation.

In the Islamic tradition, however, such an approach

represents the exception rather than the rule. Instead, for the reasons discussed in Part II, the Islamic legal system embodies a distinct preference for alternative methods of dispute resolution, like mediation and reconciliation – reflected in the traditional Islamic concept of sulh.

II. THE ADR TRADITION OF ISLAMIC LAW Throughout its history, the Islamic legal system has emphasized the importance of sulh, which embodies the western “concepts of compromise, settlement, reconciliation, and agreement.” 27 Focused on ascertaining the truth and dispensing justice with minimal

procedural distractions, the Islamic tradition has always preferred sulh over formal litigation.28 A. The Workings of Sulh The preference for sulh among Islamic legal systems is often a reflection of larger social and cultural perceptions of conflict generally. In most Middle Eastern countries, for example, the notion of conflict typically carries a highly negative connotation. 29 Viewed as “disruptive” and “dangerous” to social cohesion, conflict represents something to be

27

Walid Iqbal, Courts, Lawyering, and ADR: Glimpses Into the Islamic Tradition, 28 FORDHAM URB. L. J. 1035,

1035 (2000).
28

Id. at 1035-36. The sole exception to this rule, however, is that disputing parties cannot sanction activity

expressly prohibited in the Qur‟an through the use of sulh. Id. at 1041 (“As Caliph Omar explained, „Compromise (sulh) is permissible between the people, except a compromise which would make licit that which is illicit or make illicit that which is licit.‟”).
29

Mohammed Abu-Nimer, Conflict Resolution in an Islamic Context: Some Conceptual Questions, 21 PEACE &

CHANGE 23, 30 (1996); Mohammed Abu-Nimer, Conflict Resolution Approaches: Western and Middle Eastern Lessons and Possibilities, 55 AM. J. ECON. & SOC. 35, 46 (1996).

5

avoided.30 This creates strong incentives to minimize all forms of conflict, even those that might be considered “constructive” in other cultures. Understandably, this mindset makes formal litigation an unpopular dispute resolution mechanism, given its inherent adversarial elements. Instead, sulh represents the preferred method of conflict resolution in the Islamic legal system.31 For example, in the Saudi Arabian legal system over ninety-nine percent of civil disputes end in some form of sulh.32 The most common form of sulh involves mediation and conciliation; 33 facilitated by either a kadi or prominent member of the community. 34 During the process, the facilitator assists the parties as they attempt to reach a voluntary settlement. The facilitator can suggest various settlement proposals, but cannot force a final agreement on the parties.35 Once the parties ultimately reach a settlement, however, it acts with the same force as a binding judgment. 36 Having effectively surrendered all rights to claims on the matter, subsequent attempts by either party to initiate a related suit will be summarily rejected by an Islamic court. 37 Thus, in many respects, the process outwardly appears no different than western-style mediations.

30 31 32 33

Id. See Iqbal, supra note 27, at 1039-40. Id. Samir Saleh, The Settlement of Disputes in the Arab World Arbitration and Other Methods – Trends in

Legislation and Case Law, 1 ARAB L.Q. 198, 198 (1985).
34

See Iqbal, supra note 27, at 1041-42; George E. Irani & Nathan C. Funk, Rituals of Reconciliation: Arab-

Islamic Perspectives, 19 (Kroc Inst., Working Paper No. 19:OP:2, 2000), http://www.nd.edu/~krocinst/ocpapers /abs_19_2.shtml.
35 36 37

Ratno Lukito, Religious ADR: Mediation in Islamic Family Law Tradition, 44 AL-JAMI‟AH 325, 337 (2006). Iqbal, supra note 27, at 1037-38. Id.

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Upon closer examination, however, the actual method of accomplishing sulh is quite distinct. The most noticeable difference is that a facilitator generally plays a far more

proactive role during a sulh negotiation. Rather than act as a mere neutral observer, the facilitator delves deep into the actual substance of the conflict, openly evaluates the arguments of both sides, and actively takes part in negotiating a solution. 38 In many

instances, the facilitator must accomplish this without any initial face-to-face interaction among the parties, which raises the risk of embarrassing a party or antagonizing the situation.39 A sulh negotiation also differs with respect to its overall focus. In other legal systems, mediators emphasize shared-interests and cooperative problem solving in an attempt to “separate the people from the problem.” 40 Sulh negotiations, however, take the exact opposite tack. Instead, they prioritize any relational issues, viewing the repair of damaged

relationships (whether personal or commercial) as pivotal to the restoration of “harmony and solidarity” among the parties. 41 Though sulh is available to resolve all manner of civil disputes, its use is most prevalent in the domestic arena. The relationship-based focus of sulh makes it particularly attractive to parties seeking to resolve domestic conflicts. 42 In fact, sulh generally serves as the primary vehicle for resolving marital disputes, especially given the unfavorable standing

38 39

Lukito, supra note 35, at 335. See Mohammed Abu-Nimer, Conflict Resolution Approaches: Western and Middle Eastern Lessons and

Possibilities, supra note 29, at 46.
40 41

Irani & Funk, supra note 34, at 8, 20. Id. at 20; Mohammed Abu-Nimer, Conflict Resolution Approaches: Western and Middle Eastern Lessons and

Possibilities, supra note 29, at 46.
42

See Lukito, supra note 35, at 332.

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of divorce in Islamic law. 43 Sulh negotiations in the marital context can be slightly different from other negotiations, however. In such instances, members of the extended family often serve as facilitators in the dispute. This practice is expressly sanctioned in a Qur‟anic passage that reads: If ye fear breach between them twain, appoint two arbiters, one from his family, and the other from hers; if they wish for peace, Allah will cause their reconciliation…. 44 In large part, the rationale for this approach stems from Islamic views of family and its importance.45 Because marriage is often viewed as the union of two families rather than two people, marital disputes represent a shared problem that both families must cooperate to resolve.46 Thus, the use of family facilitators is not perceived as an attempt to gain an unfair advantage, but rather a method of resolving the dispute while reinforcing the importance of Islamic family life. B. Sulh Represents the “Best of Judgments”

43

See id. at 332-33. Though Islamic law permits divorce, it falls with the “reprehensible” category of acts. See

SUNAN ABU-DAWUD, KITAB AL-TALAQ 12:2173, available at http://www.usc.edu/dept/MSA/fundamentals/ hadithsunnah/abudawud/012.sat.html (“The Prophet (peace be upon him) said: Of all the lawful acts the most detestable to Allah is divorce.”).
44

HOLY QUR‟AN 4:35 in TRANSLATIONS OF THE QUR‟AN, available at http://www.usc.edu/dept/MSA/quran/

004.qmt.html#004.035.
45

See Amr Abdalla, Principles of Islamic Interpersonal Conflict Intervention: A Search Within Islam and See id. (describing Islamic culture as a “culture of relatedness” where “family culture and inter-personal

Western Literature, 15 J.L. & RELIGION 151, 175 (2002).
46

relational patterns [are] characterized by dependent-independent relations with overlapping personal boundaries.”).

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In the Islamic legal system, the law represents the divine will of God. Perfect and infallible, the law embodies absolute truth and justice. In similar religious based legal

systems, such as Talmudic law discussed in Parts III and IV infra, this quality has sparked vigorous debate over the propriety of employing ADR. The Islamic legal tradition, however, has never questioned the propriety of settling conflict through ADR mechanisms. The

principal reason for this difference is that the Qur‟an, unlike the Written Torah, expressly promotes the use of such mechanisms – collectively referred to as sulh. In one passage, for example, the Qur‟an declares: The Believers are but a single Brotherhood: So make peace and reconciliation between your two contending brothers…. 47 One of many such passages, 48 this demonstrates the preference for sulh over more adversarial forms of adjudication in Islamic law. Further examination of Islamic legal texts, reveals that this preference stems from both the virtues of sulh itself, and the perceived shortcomings of litigation. One hadith statement, for example, suggests that the Prophet Muhammad was quite skeptical of judicial proceedings, given the potential persuasiveness of self-interested parties and the inherent fallibility of human judges. Addressing two quarrelling neighbors, the Prophet warned:

47

QUR‟AN 49:10 in TRANSLATIONS OF THE QUR‟AN, available at http://www.usc.edu/dept/MSA/quran/049.qmt. See also QUR‟AN 4:114 in TRANSLATIONS OF THE QUR‟AN, available at http://www.usc.edu/dept/MSA/quran/

html#049.010 (emphasis added).
48

004.qmt.html#004.114 (“In most of their secret talks there is no good: But if one exhorts to a deed of charity or justice or conciliation between men, secrecy is permissible: To him who does this, seeking the good pleasure of Allah, We shall soon give a reward of the highest value.”) (emphasis added); QUR‟AN 42:040 in TRANSLATIONS
OF THE Q UR‟AN,

available at http://www.usc.edu/dept/MSA/quran/042. qmt.html#042:040 (“The recompense for

an injury is an injury equal thereto in degree: but if a person forgives and makes reconciliation, his reward is due from Allah….”) (emphasis added).

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I am only a human being and litigants with cases of disputes come to me, and maybe one of them presents his case eloquently in a more convincing and impressive way than the other, and I give my verdict in his favor thinking he is truthful. So if I give a Muslim‟s right to another by mistake, then that property is a piece of fire, which is up to him to take it or leave it. 49 This hadith statement manifests an obvious concern over the prospect of judicial error resulting from the deceptive tactics of self-interested litigants. Indeed, such skepticism of litigation is found throughout the Islamic legal system. This is especially true regarding the use of attorneys, known as wakils. Islamic legal systems generally disfavor the use of professional advocates like the ones found in western legal systems. 50 In many instances, a wakil may only appear as the agent or proxy for an absent party; not as their advocate. 51 The rationale underlying this prohibition, is that professional attorneys “use dilatory tactics, add complexity to straightforward matters, distract the parties from their „moral obligations,‟ and „subvert the moral mission of the trial‟ court.” 52 In place of attorneys, such systems entrust greater responsibility to the kadis presiding over disputes. 53 The belief is that kadis can best ascertain the truth when the parties represent themselves, and at the same time, remain available to guide and protect either party during the process. 54 Perhaps the greater benefit,

49

SAHIH BUKHARI, AHKAAM 89:295, available at http://www.usc.edu/dept/MSA/fundamentals/hadithsunnah/

bukhari/089.sbt.html#009.089.295. Some have read the Prophet‟s words, “piece of fire,” to mean that a dishonest litigant earns himself a place in “hell.” See Saleh, supra note 33, at 198.
50 51 52

Iqbal, supra note 27, at 1040. Id. Id. (quoting FRANK E. VOGEL, ISLAMIC LAW AND LEGAL SYSTEM: STUDIES OF SAUDI ARABIA 154, 154

(2000)).
53 54

Id. See id.

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however, is that the arrangement grants a kadi significant power and discretion to promote the use of sulh. “For example, if a kadi believes that a settlement or compromise would yield a just outcome, he will aim – sometimes even forcefully – to persuade the parties before him to come to an agreement and settle their disputes amicably.” 55 Thus, in many respects, the Islamic legal system embodies a noticeable slant towards the attainment of sulh. At least in part, the preference stems from the fact that sulh forces the parties to resolve the their own disputes, and thus, avoids the concerns of judicial error that are inherent in litigation. 56 The Islamic preference for sulh is more than a mere indictment of litigation, however. Indeed, sulh is commonly referred to as “the best of judgments” because of its own inherent virtues.57 As indicated by the Qur‟anic passage at the beginning of this section, Muslims appear to have a fundamental obligation to foster peace and solidarity with the greater Islamic community.58 Sulh plays a vital role in fulfilling this obligation, because it avoids the strive and ill-feelings that often accompany winner-take-all litigation.59 Thus, the principal “purpose of sulh is to end conflict and hostility among believers so that they may conduct their relationships in peace and amity.” 60

III. THE TALMUDIC LEGAL SYSTEM

55 56 57 58 59

Id. at 1041-42. Id. at 1041. Irani & Funk, supra note 34, at 22. See supra text accompanying note 48. See Iqbal, supra note 27, at 1041 (quoting Caliph Umar as saying, “[t]urn away the litigants, in order that they

reach sulh, because judgment creates feelings of spite among people”).
60

Iqbal, supra note 27, at 1035.

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For almost four thousand years, members of the Jewish faith have relied on Talmudic law to preserve their heritage and define their collective identity as a people. 61 Even when forced into exile, and scattered across the globe during the Diaspora, the Jewish people remained united by this shared system of law and morality.62 The system touches nearly every aspect of daily life, covering matters as pedestrian as hygiene, food preparation, and prayer; and as lofty as ethics, philosophy, and law.63 According to the Jewish faith, God revealed the law to Moses at Mount Sinai. 64 Today, “the law is represented, from start to finish, as a seamless, cogent, and harmonious statement of God‟s will, … located in the Torah.” 65 Lying at the heart of this text-rich tradition, the Torah is set forth in the first five books of the Hebrew Bible – Genesis, Exodus, Leviticus, Numbers, and Deuteronomy. 66 Despite its privileged position as the ultimate authority in the Talmudic legal system, the “Written Torah” does not represent an all-inclusive statement of divine law. 67 Instead, it imparts the most fundamental principles of Judaism, leaving further interpretation and explanation to a line of enlightened scholars with roots as far back as Moses himself. 68

61

See E LLIOT N. DORFF & ARTHUR I. ROSETT, A LIVING TREE: THE ROOTS AND GROWTH OF JEWISH LAW 5 Kellie Johnston, Gus Camelino, & Roger Rizzo, A Return to „Traditional‟ Dispute Resolution: An

(1988).
62

Examination of Religious Dispute Resolution Systems, 3 (Jan. 10, 2001), http://cfcjfcjc.org/clearinghouse/ drpapers/traditional.htm.
63

See RABBI GERSION APPEL, THE CONCISE CODE OF JEWISH LAW: COMPILED FROM KITZUR SHULHAN ARUCH XI (1978).

AND TRADITIONAL SOURCES,
64 65 66 67 68

NEUSNER & SONN, supra note 3, at 18. Id. Id. at 20. Id. See DORFF & ROSETT, supra note 61, at 185, 188.

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Passed down orally from generation to generation, these teachings came to be known as the “Oral Torah,” and shared equal status with their written counterpart. 69 For centuries, Jewish scholars studied and taught the Oral Torah in its original verbal format.70 The onset of the Diaspora, however, raised the risk that the tradition might be lost as both time and distance worked to sever the links between the Jewish people and their past.71 In response, Jewish scholars embarked on an ambitious mission to reduce the Oral Torah to writing, so that its teachings could be preserved and studied in perpetuity. Over a century later, the Mishnah stood as the product of this effort. 72 The Mishnah represents a systematic code of law, divided into sixty-two tractates, which together provide an authoritative explanation of the Jewish oral tradition.73 In turn, two hundred years of debate and interpretation of the Mishnah, led to the creation of the Talmud. 74 Including both commentary on the Mishnah and the text of the Mishnah itself, the Talmud is “a sustained, systematic amplification and analysis of passages of the Mishnah and other teachings….” 75 Today, the Talmud serves as the primary resource for individuals seeking to consult Talmudic law. Full of internal debate and discourse, the commentaries state the basic rules of the Talmudic legal system and explain their application

69 70 71 72

See id. at 185. ADIN STEINSALTZ, THE ESSENTIAL TALMUD: THIRTIETH-ANNIVERSARY EDITION 57 (2006) See id. The Mishnah is believed to date back to 200 CE. SHAYE J. D. COHEN, FROM THE MACCABEES TO THE

MISHNAH 18 (1987).
73 74

Id. at 22-23. This refers to the Talmud of the Land of Israel, which dates back to 400 CE. The Talmud was also drafted in a

second version, however. The latter version is known as the Talmud of Babylonia and dates back to 600 CE. Id. at 32.
75

Id. at 32.

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to the everyday affairs of Jewish life. 76 The system extends even further than the Talmud, offering additional guidance in the form of legislation, scholarly restatements and codifications, and the written advice (responsa) of renowned rabbis asked important legal questions.77 Through the use of such sources, Jews were able to take their legal system with them throughout their travels. Distrustful of the secular courts in host nations, and seeking to have their disputes resolved according to Talmudic law, Jews established their own rabbinical courts, known as beth dins.78 A beth din is a tribunal composed of three rabbis who

adjudicate disputes among Jews in accordance with Talmudic principles. Lacking formal state-based authority,79 a beth din hearing somewhat resembles an arbitration proceeding, with both parties having to agree to adhere to its judgment prior to being heard. Unlike an arbitration proceeding, however, a beth din follows strict procedural rules that are more reminiscent of western-style secular courts. 80 Moreover, in this setting, rabbis are obligated to apply the law strictly; without consideration of other factors. Resorting to a formal beth din hearing is hardly the preferred method of dispute resolution in the Talmudic legal system, however. Instead, for the reasons discussed in Part

76 77 78

See id. at 32-38. NEUSNER & SONN, supra note 3, at 18-19. Jews referred to such courts by the “derogatory term Arkaot Shel Nochrim” meaning “corrupt, partial and

slow-moving courts that were not viewed as dispensing justice for Jews.” Anthony R. Benedetto, The Impact on “The Vanishing Trial” if People of Faith Were Faithful to Religious Principles of Settling Disputes Without Litigation, 6 PEPP. DISP. RESOL. L.J. 253, 258 (2006).
79

The notable exception, of course, is the nation of Israel, which confers jurisdiction on such rabbinical courts to

decide certain matters under Talmudic law. See RUTH LEVUSH, ISRAELI LAW GUIDE (2007), http://www.llrx. com/features/israel3.htm#limitedapplicability (last visited Nov. 17, 2008).
80

Johnston, Camelino, & Rizzo, supra note 62, at 4.

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IV, prospective litigants are strongly encouraged to mediate (p‟sharah) or arbitrate (bitzua) their dispute before launching into a formal beth din hearing.81 Indeed, when it comes to resolving disputes, it is the notion of “compromise” that lay at the heart of Talmudic law.

IV. THE ADR TRADITION OF TALMUDIC LAW Though there is a tendency among western legal circles to view ADR as a relatively novel concept, it is worth noting that Talmudic law has featured similar conflict resolution mechanisms for centuries. Indeed, rather than pursue formal litigation, prospective litigants have long been encouraged to reach some form of “compromise.” 82 In Talmudic law, the parties can reach such a result either through p‟sharah or bitzua.83 A. P‟sharah and Bitzua P‟sharah and bitzua are roughly equivalent to the concepts of mediation and arbitration. In a p‟sharah proceeding, a rabbi assists the parties as they attempt to reach a voluntary settlement. 84 Much like a mediator, the rabbi can suggest various compromise solutions, but cannot force an ultimate agreement on the parties. 85 While Talmudic legal principles certainly play an important role in such proceedings, p‟sharahs provide rabbis the flexibility to consider other factors such as the parties‟ shared interests, or broader community concerns. 86 If the parties ultimately reach a settlement, their agreement becomes binding through the operation of contract law. Specifically, the parties solidify their agreement by
81 82 83 84

See, e.g., id. at 3. Id. Id. See Ira Yitzchak Kasdan, A Proposal for P‟sharah: A Jewish Mediation/Arbitration Service, JEWISH LAW

ARTICLES 2-3 (1997), http://www.jlaw.com/Articles/psharah3.html.
85 86

See id. Johnston, Camelino, & Rizzo, supra note 62, at 5.

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executing a symbolic handkerchief exchange (kinyan sudor), which obligates both sides to adhere to the result.87 Conversely, if the parties are unable to reach an agreement, the p‟sharah proceeding technically bears no impact on their respective claims. 88 In such cases, a p‟sharah closely resembles the concept of non-binding mediation. This comes with an

important caveat, however. When a p‟sharah fails to resolve a dispute, and the parties opt to pursue a formal beth din hearing, the assisting rabbi may serve as a member of the adjudicating tribunal. Unlike in a p‟sharah, a rabbi conducting a bitzua has the power to decide the outcome of a dispute among parties.89 In a bitzua, disputing parties argue their respective claims to a rabbi, who evaluates the merit of each in accordance with Talmudic law. 90 Here too, the rabbi has the discretion to consider the weight of other factors beyond merely the strict letter of the law.91 A rabbi‟s bitzua ruling is binding upon the parties. 92 As is the case with a successful p‟sharah, the binding effect of a bitzua ruling is largely a product of contract law. In the case of a bitzua proceeding, however, the parties execute a kinyan sudor at the outset of the proceeding. In this respect, a bitzua is similar to the concept of binding arbitration. 93 For the sake of clarity, it is important to highlight several characteristics that distinguish a bitzua from a formal beth din hearing. First, a bitzua may be conducted by a

87 88 89 90 91 92 93

Id. Id. Id. Id. Heshey Zelcer, Two Models of Alternative Dispute Resolution, 4 HAKIRAH 69, 85-86 (2007). Johnston, Camelino, & Rizzo, supra note 62, at 5. Id.

16

single rabbi rather than the three necessary for a beth din.94 Second, subject to the parties‟ agreement, a bitzua may employ more lenient procedural and evidentiary rules than in a beth din hearing. Indeed, beyond the features already discussed, Talmudic sources set forth few requirements that limit a rabbi‟s flexibility in conducting a bitzua.95 Finally, in a bitzua the rabbi may consider other factors beyond merely the strict letter of the law. 96 B. Reconciling Divine Law and the Concept of “Compromise” The prior discussion takes it as a given that alternative dispute mechanisms, like a p‟sharah or bitzua, are compatible with the tenets of Talmudic law. The accuracy of this assumption is not immediately apparent from the Torah, however. In fact, the Torah never even mentions “compromise” in its discussions of conflict resolution and the law.97 The absence of explicit sanction in the Torah, raises a fundamental question. How is the notion of compromise compatible with the Talmudic legal system, given that the law represents the divine will of God? Judge Bazak, a renown Talmudic scholar, best encapsulates the issue as follows: “There is an inherent contradiction between compromise and legal adjudication. For adjudication represents an effort to arrive at the true factual [and] precise legal solution of the conflict, while compromise is patently a conscious waiver of legal rights, an explicit deviation

94 95 96 97

See Kasdan, supra note 84, at 4. See Benedetto, supra note 78, at 260. Zelcer, supra note 91, at 85. Seth E. Lipner, Methods of Dispute Resolution: Torah To Talmud To Today, 16 AM. REV. INT‟L ARB. 315, 316

(2005) (“[According to the Torah] [t]he judges‟ function was to decide disputes fairly through application of the law…. The correctness of the magistrates‟ rulings would be assured through divine inspiration. Justice, impartiality and access to the courts are offered as guiding precepts, but no alternative to the decision of the „magistrates‟ is offered.”).

17

from the true strict legal solution.” 98 Thus, based on this line of reasoning, a compromise solution arguably represents an explicit deviation from God‟s will, making it incompatible with the Talmudic legal system. Indeed, in the Talmud, at least one ancient sage espouses this view. In the tractate titled Sanhedrin, the text reads, “R. Eliezer … used to say: [i]t is prohibited to mediate, and he who should do so sins; and he who praises the mediators despises the law …. it may be taken as a rule that strict law shall bore the mountain ….” 99 In this passage, R. Eliezer seemingly suggests that judges must limit themselves to a strict application of the law, regardless of the consequences. The majority of Talmudic scholars disagree with this viewpoint, however. Referring to Maimonides‟ famous Commentary on the Mishnah, Judge Bazak attributes the following statement to the ancient sage: “Every judge should make all efforts possible to mediate between conflicting parties. If he will manage not to adjudicate all through his life by convincing always the disputing parties to agree to compromise solutions, how good and how pleasant [that would be].” 100 This sentiment is in line with the majority of scholars, who believe that encouraging compromise is not only permitted, but actually encouraged by Talmudic law. Later passages of the Talmud appear to support this view by deeming

98

Jacob Bazak, Compromise v. Adjudication In Jewish Law, in JEWISH LAW ASSOCIATION STUDIES XII, 1 (Hillel

Gamoran ed., 2002).
99

MICHAEL L. RODKINSON, THE BABYLONIAN TALMUD: TRACT SANHEDRIN 29 (Kessinger Pub. ed. 2004)

(1908).
100

Bazak, supra note 98, at 3.

18

compromise a “meritorious act.” 101 Indeed, many believe that a rabbi has an affirmative obligation to suggest that disputing parties pursue compromise rather than litigation. 102 There is still the question of how compromise constitutes a “meritorious act” according to Talmudic law, however. Presumably, the basis for condoning the use of ADR cannot be prefaced solely on the additional speed and efficiency they provide; as is often the case in secular legal traditions. Indeed, it is unlikely that rabbis or disputants can supplant the will of God merely based on the need to alleviate their busy schedules. Some believe that the Talmudic legal system favors compromise because it “reduces the potential for grievous error” in the litigation process. 103 The principle underlying this argument is that, despite the inherent perfection of the law, judges are human and prone to mistakes.104 In turn, a proliferation of mistakes risks generating fear and disrespect for the law among adherents. 105 Thus, according to this argument, permitting compromise is

favorable because it reduces the burden on judges to issue a ruling and apply the law correctly. Although it may have some credence, this argument is likely insufficient, in itself, to warrant the preference for compromise in Talmudic law. Taking it to its extreme, the

argument seemingly allows an exception to swallow the rule – it reduces the possibility of a

101

RODKINSON, supra note 99, at 31 (explaining the view of R. Jehoshua b. Karha); see also Lipner, supra note

97, at 319.
102

See, e.g., Robert A. Baruch Bush, Mediation and ADR: Insights From the Jewish Tradition, 28 FORDHAM

URB. L. J. 1007, 1010 (2000) (discussing Maimonides Code); Kasdan, supra note 84, at 4 (“[T]he obligation of the judge is not just to ask the parties whether they want to proceed by way of compromise or litigation. A judge is also obliged to try to persuade the parties that compromise is preferable.”) (emphasis added).
103 104 105

Lipner, supra note 97, at 320. Bazak, supra note 98, at 2. Id.

19

few flawed judgments, but at the expense of ensuring that no case is subject to the strict letter of the law. As it turns out, the rationale for allowing compromise is far more fundamental. In Judaism, there is an ancient proverb which states, “[a] dry crust eaten in peace is better than a great feast with strife.”106 This reflects one of the “central tenets” of Talmudic law – the value of peace (shalom).107 According to Judge Elon, the former Deputy President of the Supreme Court of Israel, shalom is the primary “goal and objective of the Jewish legal system and, as such, it governs the interpretation of the entire corpus of Jewish law.” 108 Applying this principle to the dispute resolution context, Rabbi Adam Berner, judge for the Beth Din of America, asserts that “shalom … should be the prime objective in resolving disputes….[because] [t]he Torah is more concerned with restoring social harmony than with arbitrating legal issues.” 109 Judge Elon goes further, declaring that “[w]hen the result of insisting on legal rights is strife and contentiousness between the parties, the pursuit of justice requires that a peaceful „compromise‟ be compelled.” 110 A compromise, through either p‟sharah or bitzua, promotes peace and harmony by generating a solution that avoids the “winner-take-all” result of litigation. As one scholar explains: [A]djudication gives judgment, but it does not lead to peace because it produces a winner and loser, and the loser is unlikely to be appeased or reconciled with the winner. By contrast, when a mediated compromise is

106 107 108

Benedetto, supra note 78, at 258. Id. Menachem Elon, Law, Truth, And Peace: “The Three Pillars of the World” 29 N.Y.U. J. INT‟L L. & POL. 439,

459 (1996).
109 110

Johnston, Camelino, & Rizzo, supra note 62, at 4. Elon, supra note 108, at 459.

20

achieved, both parties are to some extent satisfied, both parties accept the situation and each other better, and therefore enmity is reduced and connection is, to some extent at least, restored. In this way, compromise constitutes „the judgment of peace.‟ 111 As Judge Bazak notes, compromise also promotes peace and harmony because it incorporates an element of “charity.” 112 Specifically, compromise provides a means of reducing the

financial burden on disputing parties, particularly those of limited means. 113 In fact, in rare cases, a wealthier party may even be asked to accept a compromise, representing less than the amount due under a strict interpretation, for the sake of peace. 114 Lacking explicit sanction in the Torah, the authority for ADR is therefore implicit in an overarching public policy consideration of Talmudic law. Rather than concerns over mere cost, efficiency, or judicial error, it stems from the desire to promote greater peace and harmony within the Jewish community.

V. THE CHINESE LEGAL SYSTEM The Chinese legal system is manmade; not one of celestial revelation or divine sources. It is the product of over twenty-five hundred years of history, culture, and tradition. And, during that time, the system has had many influences. None has been greater, however,

111 112

Bush, supra note 102, at 1011. See Bazak, supra note 98, at 6; see also Bush, supra note 102, at 1012 (“[I]n making a compromise, parties

do more than they really are required to do; they accept less than they are entitled to, or give more than they are obligated to give. That is the very nature of a compromise. In compromise, in other words, parties go beyond the letter of the law, beyond what is strictly required, beyond the call of duty – and that is the very essence of the virtue called charity.”).
113 114

See Bazak, supra note 98, at 4, 6. See id.

21

than the influence of Confucian ethics and philosophy. 115 Based on the teachings of an ancient scholar, 116 Confucianism emphasizes personal growth and self-cultivation as a means of achieving greater social order and justice. 117 Stressing moral guidance and education over formal control and punishment, 118 Confucianism has had a profound affect on all aspects of Chinese culture, particularly Chinese perceptions‟ of law. 119 This was not always the case, however. In fact, the teachings of Confucius existed for approximately three hundred years before firmly taking root as the ideological foundation of the Chinese legal system. 120 Indeed, the eventual adoption of this ideology was as much a response to China‟s early experiences with law, as it was a recognition of the inherent virtues of Confucianism. For centuries, present day China was a collection of independent territories ruled according to the whim of warlords and corrupt local governments. 121 Out of the chaos of the ancient feudal system, arose the Qin Dynasty. The first to govern a unified China, 122 the Qin Dynasty imposed order by demanding strict adherence to the rule of law. Believing in deterrence, these rulers relied heavily on penal law and “harsh, draconian punishments” to

115 116

DANIEL A. BELL & HAHM CHAIBONG, CONFUCIANISM FOR THE MODERN WORLD 1 (2003). Born in the present day province of Shandong, Confucius lived from 551-479 BCE. JAMES M. ZIMMERMAN,

CHINA LAW DESKBOOK: A LEGAL GUIDE FOR FOREIGN-INVESTED ENTERPRISES 32 (2d ed. 2005).
117 118

Id. Kevin C. Clark, The Philosophical Underpinning and General Workings of Chinese Mediation Systems: What

Lessons Can American Mediators Learn? 2 PEPP. DISP. RESOL. L.J. 117, 120 (2002).
119 120 121 122

ZIMMERMAN, supra note 116, at 33. BELL & CHAIBONG, supra note 115, at 1. ZIMMERMAN, supra note 116, at 33. Xiaobing Xu, Different Mediation Traditions: A Comparison Between China And The U.S., 16 AM. REV.

INT‟L ARB. 515, 522 (2005). The Qin Dynasty reigned from 221-207 BCE. Id.

22

control their subjects. 123 Skeptical of human nature, they considered strict application of the law essential to maintaining social order and cohesion. 124 Ironically, despite their success in uniting China, it was the austerity of these rulers that ultimately led to the quick downfall of the Qin Dynasty in 207 BCE. 125 Disillusioned with Qin legalism, the ensuing Han Dynasty turned to Confucianism as its guiding philosophy.126 According to Confucius, “the primary goal of all human endeavors, including government, [wa]s to promote and preserve the natural harmony that existed among [mankind]….” 127 Confucius believed that achieving this required an emphasis on li (virtue or propriety) rather than fa (the law).128 Proper governance meant instilling each member of society with proper morals and etiquette. 129 The ideal citizen was “poised, fearless, welltempered, free of violence and vulgarity, and competent.” 130 Most importantly, the ideal person knew and observed their role in the social hierarchy. 131 In his teachings, “Confucius identified five cardinal relationships that needed to be honored to achieve a stable social order: father and son, ruler and subject, husband and wife, elder and younger brother, and

123

Carlos De Vera, Arbitrating Harmony: „Med-Arb‟ and The Confluence of Culture and Rule of Law in the

Resolution of International Commercial Disputes in China, 16 COLUM. J. ASIAN L. 149, 163 (2004).
124 125 126 127

See Clark, supra note 118, at 119. Id. at 119-120. See BELL & CHAIBONG, supra note 115, at 1. Michael T. Colatrella, “Court-Performed Mediation in the People‟s Republic of China: A Proposed Model to

Improve the United States Federal District Courts‟ Mediation Programs, 15 OHIO ST. J. ON DISP. RESOL. 391, 396 (1999).
128 129 130 131

ZIMMERMAN, supra note 116, at 32. Clark, supra note 118, at 120-21. ZIMMERMAN, supra note 116, at 32. See id.

23

friend and friend.” 132 Obedience was expected of the subordinates in such relationships, while benevolence was expected of superiors. 133 The observance of these well-defined

relationships brought structure and constancy to Chinese life. Confucians favored li as a positive means of resolving social problems through public education, while disparaging fa as merely encouraging evasion of the law rather than teaching right from wrong. 134 From their perspective, good governance therefore required enlightened leadership capable of instilling li in the people; not adherence to an abstract rule of law. 135 Fa was not entirely without its place, however. Even Confucians acknowledged that, to a certain extent, fa and punishment were necessary to reinforce societal values and the authority of leadership.136 They viewed fa as principally penal in nature, with li governing all other matters.137 The penal orientation of the law in the Chinese legal system persisted over the centuries. Indeed, up until the twentieth century, “[a]ll major historical Chinese codes were basically criminal codes” with sparse references to civil, administrative, and procedural matters.138 In this context, civil matters were treated as “minor” or “trivial” concerns worthy

132 133 134

De Vera, supra note 123, at 163. ZIMMERMAN, supra note 116, at 32. Id.; see also CONFUCIAN ANALECTS 21 (James Legge trans., Kessinger Pub. 2004) (“The master said: „If the

people be led by laws, and uniformity sought to be given them by punishment, they will try to avoid the punishment, but have no sense of shame. If they be led by virtue, and uniformity sought to be given them by the rules of propriety, they will have the sense of shame, and moreover will become good.‟”).
135

See Clark, supra note 118, at 120-21; see also De Vera, supra note 123, at 168 (“In China, the rule of man

trumps the rule of law.”).
136 137

Clark, supra note 118, at 121. See Stanley B. Lubman, Emerging Functions of Formal Legal Institutions in China‟s Modernization, 2

CHINA L. REP. 195, 199 (1982).
138

Xu, supra note 122, at 524.

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of little attention.139 Perceived as unwelcome disruptions to the social order, the goal was actually to have no private disputes at all. 140 Moreover, the “pursuit of material self-interest [underlying] civil litigation was perceived to be inconsistent with the Confu cian ideal of moral self-cultivation, character formation, and personal growth.” 141 The limited role of civil law diminished even further with the rise of communism in 1949. Under the rule of Mao Zedong and the Communist Party, reform initiatives like the “destruction of the landlords (1949-1952), collectivization of agriculture (1953-1956) and the „socialist transformation‟ of industry (completed by 1956) greatly reduced the potential scope of … civil law.” 142 Moreover, communist ideology only reinforced traditional disdain for private disputes and civil litigation. Co-opting Confucian principles, Mao deemphasized the importance of individual interests in the name of social harmony and the common good. 143 In sum, Chinese dispute resolution is inextricably intertwined with the traditional values and historical evolution of China. It is primarily a story of li; not fa. As such, mediation and other informal means of dispute resolution have always been a staple of Chinese life. For the Chinese way is one of jang – a preference for compromise.

VI. THE ADR TRADITION OF CHINESE LAW Economic growth and globalization have brought significant changes to China in recent years. Booming business has spawned increased property rights, and with them, new

139 140 141 142 143

Philip C. C. Huang, Court Mediation in China, Past and Present, 32 MODERN CHINA 275, 279 (2006). Lubman, supra note 137, at 199. BELL & CHAIBONG, supra note 115, at 260-61. Lubman, supra note 137, at 200. Colatrella, supra note 127, at 398; see also LAW IN THE PEOPLE'S REPUBLIC OF CHINA: COMMENTARY,

READINGS, AND MATERIALS 86 (Ralph Haughwout Folsom & John H. Minan eds., 1989).

25

challenges.144 In response, the Chinese legal system has demonstrated a willingness to adapt, even with respect to litigation. 145 Despite significant changes, however, mediation largely remains the preferred means of private dispute resolution in China. 146 In fact, as recently as 2002, the Supreme People‟s Court and Chinese Ministry of Justice re-emphasized the vital role of mediation in Chinese society. 147 Several forms of mediation are available to the Chinese people, including formal and informal commercial mediation through private professional organizations, judicial mediation, and even hybrid med-arb options (combining features of both mediation and arbitration). Nonetheless, the principal vehicle for resolving civil disputes remains People‟s Mediation Committees. A. People‟s Mediation Committees For every civil dispute that goes to court in China, an estimated five to ten are resolved by People‟s Mediation Committees (PMCs). 148 The most recent census revealed that there were over 853,000 PMCs in the country; 149 one for approximately every 1,500 people. 150 It also showed that PMCs resolved over 4.4 million disputes during 2004; and more than 266
144

See Randall Peerenboom & Xin He, Dispute Resolution in China: Patterns, Causes and Prognosis 4-5 (La

Trobe Univ. Sch. L. Working Paper Series, Paper No. 2008/9, 2008), available at http://ssrn.com/abstract= 1265116.
145 146

Id. Colatrella, supra note 127, at 399; see also Paul Wachter, With Legal System Overwhelmed, China Uses

Mediation, COLUM. L. SCH., Feb. 21, 2008, http://www.law.columbia.edu/media_inquiries/news_events/2008/ february2008/china_mediation.
147 148 149

Peerenboom & He, supra note 144, at 13. Donald C. Clarke, Dispute Resolution in China, 5 J. CHINESE L. 245, 270 (1991). China Statistics 2005, § 23-6 Basic Statistics on Lawyers, Notarization, and Mediation, http://www.

allcountries.org/china_statistics/23_6_basic_statistics_on_lawyers_notarization.html.
150

The per capital number of PMCs was calculated based on overall 2004 population figures, which reported a

total population of 1.3 billion people. China Statistics 2005, § 4-1 Population and Its Composition, http://www. allcountries.org/china_statistics/4_1_population_and_its_composition.html.

26

million during the prior five-year period. 151 PMCs address a wide range of matters, including divorce, inheritance, child support, alimony, debts, real property, production and management issues, and other torts. 152 Throughout their history, the Chinese have relied on such nonjudicial forms of conflict resolution.153 Historically, mediations were conducted by friends, relatives, neighbors, respected local figures, or other trusted third-parties.154 In 1954, the Communist Party

officially sanctioned this practice by promulgating the Provisional Organizational Principles for People‟s Mediation Committees.155 These grassroots organizations were charged with “mediat[ing] ordinary civil disputes among the people and … conduct[ing] propaganda and education in state law and policy.” 156 For the next thirty-five years, the role of PMCs remained essentially unchanged. 157 In fact, save for slight regulatory reforms granting PMCs greater independence from Communist Party politics in 1989, current PMCs are still largely indistinguishable from their predecessors. 158

151 152

China Statistics 2005, supra note 149, at §23-6. See Jun Ge, Mediation, Arbitration and Litigation: Dispute Resolution in the People‟s Republic of China, 15

UCLA PAC. BASIN L.J. 122, 125 (1996); Ren Jianxin, Mediation, Conciliation, Arbitration, and Litigation in the People‟s Republic of China, 15 INT‟L BUS. LAW. 395, 395 (1987).
153

LAW IN THE PEOPLE'S REPUBLIC OF CHINA: COMMENTARY, READINGS, AND MATERIALS, supra note 143, at

106.
154 155 156 157

See Jianxin, supra note 152, at 135. Clarke, supra note 148, at 272. Id. at 273. Id. It is worth noting, however, that in 1982 the National People‟s Congress explicitly incorporated PMCs

within Article 111 of the Chinese Constitution. CONSTITUTION OF THE P.R.C. art. 111 (1982), available at http://english.gov.cn/2005-08/05/content_20813.htm.
158

Clarke, supra note 148, at 275; Ge, supra note 152, at 124 (discussing the ORGANIC RULES FOR PEOPLE‟S

MEDIATION COMMITTEES). In an effort to further increase the popularity of PMCs in the 1980s, the Chinese government de-politicized the committees and relieved mediators of their propagandist duties. Though

27

PMCs are organized by citizens at the community level. Residents‟ Committees in urban locations, and Villagers‟ Committees in rural areas, are each entitled to establish a corresponding PMC. 159 Additionally, citizens may also form smaller committees based on particular neighborhood or workplace affiliations. Neighborhood-PMCs represent specific subsets of the community, while Workplace-PMCs serve large businesses and government institutions.160 Community residents (or workers) elect anywhere from three to nine members to serve on committees for one-year terms. 161 Prior to their election, committee members need not have had any formal training. According to the revised regulations of 1989, any adult that is impartial, enthusiastic about mediation, closely linked to the community, and generally knowledgeable about law and policies, is eligible to serve as a mediator. 162 As a practical matter, mediators are generally retired elders in the community who are “respected” and “trusted to be fair.” 163 At the institutional level, the Ministry of Justice exercises

jurisdiction over PMCs. 164 The ministry assists in the establishment of committees, provides the necessary training, 165 and monitors the work of mediators. 166

“persuasion and education” efforts still took place, they were limited “to educating disputants about the applicable law and the possible conditions for settlement.” Robert Perkovich, A Comparative Analysis of Community Mediation in the United States and the People‟s Republic of China, 10 TEMP. INT‟L & COMP. L.J. 313, 321 (1996).
159 160 161

Clarke, supra note 148, at 276; Ge, supra note 152, at 124. Ge, supra note 152, at 124. LAW IN THE PEOPLE'S REPUBLIC OF CHINA: COMMENTARY, READINGS, AND MATERIALS, supra note 143, at ORGANIC RULES OF PEOPLE‟S MEDIATION COMMITTEES art. 4 (1989). Clark, supra note 118, at 128. Perkovich, supra note 158, at 324. For example, committee members may receive three to five days of initial training, followed by additional

88.
162 163 164 165

monthly updates on the latest changes in the law. Id. at 326.

28

The Chinese view PMCs as having an extensive role in the maintenance of social order and cohesion. According to Ren Jianxin, former President of the Supreme People‟s Court,167 PMCs play an “important role in preventing crime, reducing litigation in the people‟s courts and in promoting the smooth construction of the socialist material and spiritual civilization by raising the legal sense and moral standards among the masses, resolving disputes reasonably, enhancing the people‟s unity and maintaining peace and order throughout society.” 168 With such a significant role ascribed to them, PMC mediators

function beyond the limits of common western notions of mediators as sheer facilitators. PMC mediators proactively seek to prevent, rather than merely resolve, conflicts in Chinese society. Not limited to the conflicts brought before them by disputing parties, they can actually initiate impromptu mediations on their own initiative. 169 This requires that mediators “know the personalities, occupations, and points of tension and potential disputes of members of the community.” 170 Mediators also “actively publicize and encourage the use of mediation as a tool in dispute settlement.” 171 All told, the PMC system requires over 5.1 million mediators to realize these objectives. 172 During mediations, committee members use a variety of techniques in an effort to achieve compromise (jang) among disputing parties. 173 Like most mediators, committee

166 167 168 169 170 171 172

Id. at 324. Served as President of the Supreme People‟s Court from 1988 to 1998. Jianxin, supra note 152, at 395. Ge, supra note 152, at 124. Lubman, supra note 137, at 225. Id. at 225. China Statistics 2005, § 23-6 Basic Statistics on Lawyers, Notarization, and Mediation, http://www.

allcountries.org/china_statistics/23_6_basic_statistics_on_lawyers_notarization.html.
173

Perkovich, supra note 158, at 324.

29

members facilitate communication, promote cooperation, and suggest possible solutions to the parties.174 However, they may also engage in independent fact finding, make conclusions about the merits of each side, and offer informal advisory opinions. 175 Through such actions, the mediator tries to “persuade and educate” the parties in the hopes that they will realize the benefits of compromise. 176 Prompting “self-criticism” is a large part of this process. 177

According to the Chinese approach, helping the parties understand their individual contributions to the dispute, can often be pivotal to reaching a solution. 178 During the process, the sole restriction on the mediator is that any settlement must be voluntarily reached by the parties and must conform to Chinese law. 179 B. A Confucian Skepticism of Litigation The Constitution, laws, and regulations of China explicitly sanction and promote the use of mediation and other non-adjudicatory forms of conflict resolution. 180 In some

instances, even parties intent on initiating adversarial proceedings, may be dissuaded from doing so.181 In fact, until their 1991 revision, the rules of civil procedure actually required

174 175 176

Id. Id.; Ge, supra note 152, at 124. Urs Martin Lauchli, Cross-Cultural Negotiations, With A Special Focus on ADR with the Chinese, WM.

MITCHELL L. REV. 1045, 1066 (2000).
177 178 179 180 181

Id. See Clark, supra note 118, at 138. Perkovich, supra note 158, at 324. See supra notes 155-58 and accompanying text. In cases of marital disputes, for example, courts may require couples to undergo mediation prior to continuing

with divorce proceedings. MARRIAGE LAW OF THE PEOPLE‟S REPUBLIC OF CHINA art. 31 (2001); available at http://www.helplinelaw.com/law/china/marriage/mlaw.php.

30

courts to “stress mediation.” 182 This is not to say that mediation derives its authority in codified rules or regulations, however. Rather than an affirmative conferral of power, such laws arguably reflect a mere acquiescence to traditional social norms and perceptions of conflict resolution. After all, to the Chinese, it has always been li that dictates fa; not the other way around. The Chinese preference for mediation is deeply rooted in Confucian ethics and philosophy.183 Though changing somewhat in recent years, public attitudes toward litigation have traditionally modeled Confucian thought. From such a vantage point, “litigation is considered to be a negative social phenomenon … a deviation from and disruption of harmonious social relationships.” 184 Again, the ideal is for the absence of lawsuits, rather than merely their resolution. 185 Confucius was skeptical of litigation. 186 In the Analects, disciples record him as expressing, “[i]n hearing causes, I am like other men …. [t]he great point is – to prevent litigation.”187 Seemingly implicit in this statement, is the recognition that judicial proceedings are imperfect, fallible human constructs – a sentiment reminiscent of the Prophet Muhammad

182

CIVIL P ROCEDURE LAW OF THE PEOPLE‟S REPUBLIC OF CHINA (FOR TRIAL IMPLEMENTATION) art. 6 (1982).

Under the current version, courts are instructed to “conduct conciliation for the parties on a voluntary and lawful basis ….” CIVIL PROCEDURE LAW OF THE PEOPLE‟S REPUBLIC OF CHINA art. 9 (amended Apr. 9, 1991), available at http://www.law-bridge.net/english/LAW/20065/1322544213895.html.
183

Lauchli, supra note 176, at 1066 ( “Mediation is the natural extension of Confucian ethics, and therefore has

the longest standing position in Chinese tradition, and is pervasive in China.”).
184 185 186

BELL & CHAIBONG, supra note 115, at 260. Huang, supra note 139, at 278. KARL-HEINZ POHL, CHINESE THOUGHT IN A GLOBAL CONTEXT: A DIALOGUE BETWEEN CHINESE AND

WESTERN PHILOSOPHICAL APPROACHES 249 (1999).
187

WILLIAM JENNINGS, THE CONFUCIAN ANALECTS 138 (Kessinger Pub. ed. 2004) (1895).

31

in the Islamic tradition. 188

Such skepticism has historically permeated Chinese society.

Indeed, as the following statement by Emperor K‟ang-his (1662-1722) demonstrates, this was not always by accident. According to the emperor: Lawsuits would tend to increase to a frightful amount, if people were not afraid of the tribunals, and if they felt confident of always finding in them ready and perfect justice …. I desire, therefore, that those who have recourse to the tribunals should be treated without pity, and in such a manner that they shall be disgusted with the law…. 189 Whether by destiny or design, the legal system has traditionally lived down to this standard in the eyes of the Chinese people. The litigation process has been perceived as corrupt, plagued by arbitrary or incompetent judges, a tool of governmental interference, and ina dequate in meeting the needs of the people. 190 Fears of corruption stem from stories of judges receiving bribes or offering preferential treatment to political elites. 191 The quality of the judiciary also remains a concern. Despite steady improvement, only slightly more than half of all judges hold colleges degrees. 192 Moreover, the significant responsibility and discretion afforded by the inquisitorial system of litigation, and the complexity and frequent inaccessibility of applicable law, make issues of judicial competence even more pressing. 193 Another

traditional concern is the issue of judicial independence. Though part of a national network,

188 189 190 191 192 193

See supra text accompanying note 49. Colatrella, supra note 127, at 398. See Clarke, supra note 148, at 257-63. Perkovich, supra note 158, at 316; Colatrella, supra note 127, at 397, 404. Peerenboom & He, supra note 144, at 7. Clarke, supra note 148, at 258.

32

each court is also part of the city, county, or provincial government it serves. 194 Responsible for providing facilities, personnel, finances, and (most significantly) appointments, these municipalities are capable of exerting considerable control over the courts. 195 Moreover, within the courts themselves, sit adjudication committees comprised of the court president, vice president, and various chamber heads, which may unilaterally overrule the decisions of presiding judges. 196 Finally, discontent over the sufficiency of litigation also stems from the perceived difficulties of enforcing court judgments. Indeed, there are few penalties for

disregarding court orders. 197 Moreover, instances of protectionism by local courts can render the enforcement of cross-jurisdictional judgments next to impossible. 198 Collectively, such issues provide context to an ancient Chinese proverb that warns, “[i]t is better to die of starvation than to become a thief; it is better to be vexed to death than bring a lawsuit.” 199 The preference for mediation is more than a response to the perceived problems of litigation, however. Inspired by Confucianism, the Chinese identify mediation as having its own inherent virtues. On a personal level, mediation makes parties into better human beings by promoting moral growth. It prompts parties to engage in self-reflection, provides an opportunity for the reexamination of positions, and allows for compromise. 200 On a larger level, mediation repairs relationships and reinforces communal bonds. It encourages

194 195 196 197 198 199 200

Colatrella, supra note 127, at 401. Id. at 402; Clarke, supra note 148, at 255. Clarke, supra note 148, at 255-56, 260. Colatrella, supra note 127, at 403. Id. at 403-04. Clark, supra note 118, at 121-22. See BELL & CHAIBONG, supra note 115, at 261-62 .

33

communication, highlights shared interests, and reaffirms collective values. 201 greater peace and social harmony – mediation is the tangible expression of li.

Fostering

VII. CONCLUDING REMARKS Among many western legal systems, there is a growing interest in the use of ADR as a dispute resolution tool. Recognizing the wide range of benefits it affords, scholars

increasingly look outside their systems for insights into the most productive uses of ADR. Differing perceptions of ADR complicate such cross-cultural exchanges, however. In the American legal system, for example, ADR is largely viewed as a means of avoiding the high cost, long delays, and uncertainty of formal litigation. 202 Such perceptions shape our thoughts about the role ADR should play in the resolution of disputes within our society. A shortcut mechanism, ADR is a secondary option; deriving its appeal solely from the inadequacies of the primary system. Yet, this view is hardly universal. In fact, as the prior discussion demonstrates, ADR takes on far greater significance in the Islamic, Talmudic, and Chinese legal systems. As a conceptual matter, each of these systems have differing views of ADR‟s place in relation to the law. In the Islamic legal system, ADR is an unquestioned part of the law, explicitly sanctioned in the Qur‟an. In the Talmudic legal system, by contrast, the authority for ADR is implicit in the overarching goals of the Jewish faith, as described in the Torah. Lastly, in the Chinese tradition, ADR represents an approach entirely separate from, and thus preferable to, the law. Despite such conceptual differences, however, each of these systems view ADR as

201 202

See Clark, supra note 118, at 132-33, 138. STEPHEN N. SUBRIN & MARGARET Y.K. WOO, LITIGATING IN AMERICA: CIVIL PROCEDURE IN CONTEXT 216-

219 (2006) (describing American motivations for employing ADR as grounded in concerns of “efficiency, delay, and expense” rather than “a desire for a more cooperative society”).

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playing the same fundamental role – promoting greater peace and harmony within their respective societies. Having its own inherent virtues, and providing its own unique benefits, ADR takes on primary significance in the resolution of disputes. When considering the ADR techniques employed in other legal systems, scholars must account for the impact that differing cultural perceptions have on their success. This inquiry is fundamental to determining whether such techniques are truly adaptable to other settings. For example, given their holistic approach to dispute resolution and overarching emphasis on preserving harmony, it is doubtful that Islamic, Talmudic, and Chinese notions of ADR are readily adaptable to the American legal system; with its generally adversarial, pro-litigation orientation. Ultimately, the role of ADR, like law, is highly cultural. Comparing ADR traditions is hardly a fruitless endeavor, however. Quite to the contrary, comparing traditions prompts introspection and forces us to address more fundamental questions about our own cultural approach to dispute resolution. Are we

satisfied with ADR maintaining its secondary status in the American legal system? A mere shortcut option designed to save time and money? The Islamic, Talmudic, and Chinese experiences suggest that ADR is capable of achieving much more. Moreover, the rise of other movements, like therapeutic jurisprudence, 203 suggests that Americans are increasingly yearning for something other than traditional no-holds-barred litigation. Focusing on social harmony and personal relationships, perhaps the Islamic, Talmudic, and Chinese ADR

203

See, e.g., Legal Trends Network, Therapeutic Jurisprudence, http://www.legaltrends.net/therapeutic-

jurisprudence (last visited Nov. 23, 2008) (“Therapeutic Jurisprudence focuses on the therapeutic or countertherapeutic consequences of the law and legal procedures on the individuals involved, including the clients, their families, friends, lawyers, judges, and community. It attempts to reform law and legal processes in order to promote the psychological well-being of the people they affect.”).

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approaches tap into a bit of that missing “something” – a desire for a more fulfilling process, addressing both the personal and social needs of people as human beings.

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