Supreme People's Court Emphasizes Need For Mediation

The Supreme People's Court issued an opinion on March 7 directing courts to strengthen their use of mediation in handling citizen grievances as a means to reduce social conflict.  The Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialism and a Harmonious Society instructs courts to increase training for judges in the use of mediation, establish systems of rewards that encourage judges to resort to mediation, and to include success in using mediation ín the regular career assessments of judges.

Article 5 emphasizes the use of mediation in a particular set of cases.  It states that:

Courts should carry out mediation in civil cases where appropriate, but should emphasize the following types of cases:

1. cases involving mass interests, requiring the assistance of government bureaus,
2. cases involving large numbers of people with shared interests,
3. cases involving complex facts, parties in serious conflict, and where both sides do not have an evidentiary advantage over the other,
4. cases where there is difficulty applying the law, because laws or regulations are unclear,
5. cases that are very sensitive, receiving significant social attention, or
6. cases involving requests for retrial

Two things appear somewhat unusual about this opinion.  First, the list of cases above includes several that would not appear to be particularly suitable for mediation, such as cases involving large numbers of plaintiffs or those with parties who are in serious conflict (情绪严重对立).  Second, Article 4 of the Opinion calls on courts to "increase the number of cases that are mediated, increase the number of cases that are closed out through mediation to the greatest extent possible, but avoid categorically pursuing (higher) mediation rates."  The opinion is internally conflicted. It wants to increase the use of mediation, it wants to establish mechanisms that encourage judges to resort to mediation, and it wants to include judges success in using mediation in their career performance evaluations.  How does that not create undue pressure on judges to resort to mediation, even when it may not be warranted?

One possible explanation: Chinese judicial authorities may be uncomfortable with the use of the Chinese court system by legal activists to pursue high-profile cases over the past couple years.  Creating incentives for judges to resort to mediation in these cases might be a way to keep them out of litigation, and possibly out of the public eye.