When Some Cities Tend to Modernize and Others Tend to Conserve Traditionalism?

Introduction It endnister happen that sometimes you concur a personal contest with a family member, friend or neighbour, or a sub judice contend involving business. There atomic number 18 three master(prenominal) shipway as alternatives to going to judicial system to resoluteness a contention in china negotiation, inter mediation and arbitration, they be ADR. ADR direction Alternative strife Resolution and it refers to various processes, comm b arely grant in civil police force tradition, which prepare in common the aim of a better dialogue amid the parties during a dissension and the thrift in managerial and sub judice time, expense and worry (Bevan, 1992).We commode cl ahead of time distinguish the advantages of the ADR, comparing to the evening gown dispute resolving power at court. ADR processes are quicker, as they can be arranged within days or weeks rather than months or age (example of one end in litigation). They are also less expensive, as earlier settlements preserve managerial time and they are confidential. They are voluntary, which means that the parties are free to walk out every time without interfere the reasoned procedures and their rights (Bevan, 1992). mediation, one of the most utilise ADR, involves a neutral tertiary party, c eithered a mediator, to help the disputing parties to clear an organisation.intermediation in mainland china has been existed in mainland chinaware for much than 2,000 years. It was used in the Western Zhou Dynasty (1146 BC-771 BC) and then used during the Qin Dynasty (221 BC-207 BC). There was always a preference for mediation by means ofout all the history of Imperial China. The mediation administration and the healthy outline were veritable together after the establishment of the mountains Republic of China in 1949. Peoples Mediation Committees appeared during this period, helping topical anesthetic mass to crock up civil disputes and to preserve concord in t he society.However, the Maos stinting reforms have brought some physical and affectionate changes of the Chinese cities. Reforms have promoted the nurture of the legal system and other formal legal institutions. They have also permitted more individual freedoms, since the decentralization of the political control. Moreover, the invasive economic ontogenesiss, the red-brickization and the Westernization have led to the apparition of new cities which advocate the ideas of individualism, competition and private space, ideas totally at the opposite of the Chinese conventional culture which advocates he hearty consistency in community and society. In my essay, I impart try to answer to this question To what extent the place of the Peoples mediation committees in China now is still significant when some cities tend to modernize and others tend to conserve traditionalism? First, I will present the evolution of the traditional Chinese legal system to the contemporaneous Chinese legal system. Second, I will concentrate on the case of mediation, one Alternative Dispute Resolution, and the Peoples Mediation Committees.And finally, I will research the importance of the teachings of Confucianism in the evolution of mediation. I. From traditional Chinese legal system to contemporary Chinese legal system Chinese history, even in the last century, has gone through several events which have affected the development of its juridical system. Conscious that traditional Chinese law was backward and that a Western legal system, more modern, would improve a lot the development of Chinese society, Mao attempted to establish a modern legal system base on rules and law in 1949 (Utter, 1987).The communist society recruited showtime former nationalists, who knew all about the Western legal systems To supply the new legal system, the Communists bear a number of legal specialists who had worked for the Nationalists, chiefly because the Communists did not have within t heir own ranks good deal with skills and familiarity to persist a complex legal system, but they were completely politically unreliable and elitist (Utter, 1987).The political party then replaced them by new cadres selected for their political loyalty to the Mao government, and not for their abilities in legal system, the new cadres lacked legal skills and bangledge (Utter, 1987). This decision of the Chinese Maos government influenced the development of the legal system. They were convinced that complex processes were only burdens to the modernization of the legal system, so they certain a system easily infrastandable and accessible to the massesDuring the first few years of the commie party, the new cadres helped to establish law codification com missions, judicial and police structures. Law schools opened and some legal books were published. In 1954, the first Chinese constitution which established a tripartite political design consisting of the supreme muckles court s, the supreme peoples procuracy, and the state council, all responsible to the standing committee of the national peoples congress, was introduced (Utter, 1987).However in 1957, the improvements of the Chinese legal system began to stop During the anti-rights movement, the communist partys sentiment towards the need for a modern legal system changed dramatically. M each specialists were removed from their posts and then attacked and denounced for the very policies they were initially retained to develop. Law schools were closed and plans for further codification were terminated. The communist party went as far as to undo and supplant existing laws as puff upspring as to replace the federal agency of the courts and procuracy with public security bureaus (Utter, 1987).After Maos death in 1978, during the Four modernizations (in industry, agriculture, national defence, science and technology in Chine), the new government of Deng Xiaoping (1904-1997) established the 1978 Constitutio n, which restored the emergence of lawyers, law schools and legal publications. Finally, with the annunciation of the 1990 Procedural Law of Administrative Litigation and the 1991 courtly social function Law, Chinese legal system significantly evolved to a more structured system. nonetheless with all these progress, mediation remains the most used dispute upshot process.The 1989 legislation, that placed the peoples mediation committees under the jurisdiction of the Ministry of Justice, allowed the modern mediation system to be more independent, superior and efficient. Many cases are diverted from the courts and passed on mediation committees The mediation committees have settled cases exhibit a wide variety of topics such(prenominal) as divorce, inheritance, parental and tiddler support, alimony, debts, real property, production, and torts, as well as other civil and economic disputes and criminal misdemeanour cases.They have also played an cardinal role in preventing crim e, reducing litigation in the courts, enhancing the peoples unity, and promoting social stability. Over seven million disputes are satisf performanceorily resolved through the use of mediation each year in China, far exceeding the number of cases brought to Chinese courts (Ge, 1996). However, this support of mediation retarded the development of judicial law and the implement of existing laws because the mediation procedure is based on local beliefs of fairness and communist ideas. The adoption of the 1991 Code of Civil Procedure affirmed the payload to mediation of Chinas government.Mediation and the Peoples Mediation Committee In the Chinese legal system, dispute settlements can be classified into two different categories formal dispute settlement (at courts) and informal dispute settlement or alternative dispute reply (ADR) (negotiation, mediation and arbitration). ADR has great existed in China and traditionally been preferent to the courts for some a(prenominal) reasons. Mediation, as one of the different means of dispute cloture, is widely expert in China. To define it, mediation is an effort by a leash party to encourage parties to a dispute to voluntarily reach an proportionateness to resolve their dispute.There are currently various types of mediation in China civil mediation, judicial mediation, administrative mediation and arbitration mediation. Civil mediation is also known as the Peoples mediation, by Peoples Mediation Committees, outside the court. I will concentrate on it further in the essay. Compared with judicial mediation, Peoples mediation offers a more amicable way to resolve disputes and to avoid many disadvantages of judicial mediation, similar the rigidity of the judges and mediators in the mediation process. It is used by Peoples Mediation Committees which help parties voluntarily reach an agreement.Peoples Mediation Committees (PMCs) are, with courts, the most largely known institutions for dispute shutdown in China. The y are informal mediation institutions, which have been existed in China for centuries, allowing people to avoid a legal system and court procedures which have always been subjects of fear in the society. Article 111 of the Constitution of the Peoples Republic of China states that Peoples Mediation Committees are a working committee under grassroots autonomous casings Residents Committee, Villagers Committee whose mission is to mediate civil disputes Chinas Judiciary, http//www. china. org. cn). They were established in the early years of the foundation of Peoples Republic of China in 1949 and of its legal system and helped to maintain social control, to resolve non-class-struggle disputes and to conserve accord Mediation serves to articulate and apply the ideological article of beliefs, value and programs of the Chinese Communist Party and helps to mobilize Chinas people to increase their commission to party policies and goals.Rather than settling disputes between individuals , mediation also serves to suppress such disputes, which are regarded as harmful social conflict that interferes with the turn of a strong socialist China (Utter, 1987). They appeared again in the late seventies and early 1980s after the Cultural Revolution (1966-1976), with the Chinas 1982 Constitution, as a way to resolve minor disputes involving families, villages, workplaces and neighbourhoods, or to facilitate parties to find resolution to disputes before reaching court, a process of mediation which still continues instantly (Clarke, 1991).Excepted the period of the Cultural Revolution, PMCs have traditionally been approvald by the press, as we can see in the following citation The current system of peoples mediationis a great creation in the construction of our countrys socialist legal system, it is a legal system with Chinese characteristics, and it is an fundamental component of our countrys judicial system It plays an immense role in resolving contradictions among the p eople, strengthening unity and friendly consanguinity among the people and promoting socialist material and spiritual civilizationIt has received praise in international jurisprudential circles and has been called the most distinctive system of the Chinese judicial system. (Mediation Compendium, 1990) Peoples Mediation Committees are veritable(prenominal) in the contemporary Chinese society in the dispute settlements within neighbourhoods. Their mission, states by the Article 5 of the Regulations for the Organization of Peoples Mediation Committees, is to mediate civil disputes and, through such mediation, publicize laws, regulations, rules and policies and educate citizens to jut out by laws and respect (Chinas Judiciary, http//www. china. org. cn).PMCs are today institutionalized under the direction of the local government department of justice, they are non-governmental organizations and supplement to the judicial system. Peoples Mediations Committees are set up by local resid ential community in villages, workplaces and in regional or professional organizations to handle civil matters and small criminal matters. It is composed of individuals from the community who are believed to be fair and impartial. They are generally selected for 3 years and recompense by the government for their services as mediator. Mediation by Peoples Mediation Committees is completely free of charge. The procedure is more miasmal and more institutionalized today. During the mediation, a mediation agreement, which can be in written and/or oral forms, is reached by both parties.This mediation agreement signed by both parties must clearly provide discipline on facts, resolution redacts and enforcement in relation to the dispute. Article 20 of the some(prenominal) Opinions issued in 2009 states that for an agreement in the nature of a civil swerve reached through mediation by an administrative organ, a peoples mediation organization, a commercial mediation organization, an in dustrial mediation organization or any other organization with a mediation function, the parties may apply to the peoples court having jurisdiction for confirming hardness of such an agreement after the mediation organization and mediator augment their signatures or seals to it. This judicial confirmation of settlement agreement is a method to improve the enforcement of a mediation agreement.To request this confirmation, parties to the dispute can apply to the peoples court within a period of 30 days by submitting the mediation agreement and a letter of commitment signed by both parties and responded to the two following statements Both parties voluntarily reach the agreement for the purpose of resolving disputes and have no act of malicious collusion or circumvention of law and if any damage is caused to any other person due to the content of this agreement, both parties are ordain to bear the corresponding civil liability and other legal liabilities. (Wei & Ying, 2011b). If t he court validates the mediation agreement, the court can oversee the enforcement of the agreement. If it doesnt validate the agreement, parties to the dispute can file for lawsuit at the court. The court decision severity of the agreement baffles effective when the courts decision is communicated to both parties.If a party rejects the decision of the court, the other party may apply to the peoples court for enforcement (Wei & Ying, 2011b). If we take a look at the figures, it is estimated that at the end of 2010, there were 818,100 Peoples Mediation Committees, 4,668,900 mediators who resolved more than 8,418,400 cases of mediation, with a success rate of resolution of disputes of 97% (Wei & Ying, 2011a). The teachings of Confucius closely cerebrate to the mediation For decades, Confucian school of thought has been the foundation of the Chinese culture. Its fundamental values structured all the aspects of the Chinese society. Today, the mediation is founded on the principles of Confucian philosophy and Maoist thought. (China Insight issue 2010, http//chinainsight. info/).Two alpha principles of the Confucianism laid the foundations of the mediation the principle of Li, which supposes the preservation of natural harmony and the principle of Rang, which supposes the compromise or the yielding to others in resolution of disputes. Moreover, mediation is a mean of educating people and implementing Communist party policy, based on the Maoist principles. China has been one of the worlds most committed nations in the use of mediation to resolve disputes. One other reason of that is the troubled court system in China. There are corruption among judges, a lack of meaning qualifications to become a judge and an inaccessibility of published codes and case law. Mediation in China is a natural outgrowth of traditional, family-centred support systems and its principles are based on the ethical teachings of Confucius (Pierce, 1994).The Confucian ethics are based on soci al harmony, moderation, respect for authority, humility, benevolence and so on in secern to the Western mediation which endorses an individualistic utilitarian value system of fairness, justice, equality, faithfulness and autonomy (Jia, Ma, Yang, 2009). The respect of the family structures the relations between individuals and the life in community. Therefore, harmony (he), relations among people (guanxi), face (mianzi) and yielding to others (rang), which are major concepts cardinal the Confucianism, play an important role in the process of mediation in China and are reflected in Chinese social interaction and conflict resolution. In order to understand how the concepts from the Confucian philosophy are important in the process of mediation in China, I will focus on these different notions.In the Chinese culture, harmony is one of the most important values. Chinese people are convinced that harmony is the universal running that everybody should pursue because only when harmony is reached and prevails throughout heaven and earth can all things be nourished and flourish (Legge, 1995). To the Chinese, conflicts are considered more manage detractors from harmony rather than problems of communication. Chinese people therefore are only aiming to establish a conflict free interpersonal and social relationship (Chen Chung, 1994). The conflict prevention in China is maintained by the principle of li (rites). Li refers to norms and rules of proper behaviours in a social context.It is an foreign means to achieve the ideal state of harmony by showing a feeling of respect or reverence to others (Chen Xiao, 1993). Mediation is in general based on the li principle. As we know, mediation is an alternative dispute resolution with the priority of a mutual respect and harmony between the two parties during the process. It is also based on the rang principle. Chinese people know how to yield to the other party to end a conflict, in order to keep the relationship guanxi. The harmony pursued in a dispute resolution is supported by two traditional notions guanxi and mianzi. During the mediation, both parties are trying to reduce the negative preserve of conflicts in order to save face and to keep the guanxi.Guanxi means the relationships between two parties. It gives some special(prenominal) communication rules and patterns in order to avoid an embarrassing encounter or serious dispute. It is deeply connected to the mianzi. Mianzi refers to the projected image of ourselves in a relationship network (Ting-Toomey, 1988). It supposes a mutual respect from the parties to save faces because any conscious act of making the other party to lose face will damage their own image and destruct the relationship. It represents our social bunk and prestige gained from the successful performance of our specific social roles that are well recognized by other members in the society (Hu, 1944).To conclude, due to the accent heavily put on the harmony, Chinese peopl e have sanctuary to a mediator to help them to resolve dispute. Conclusion For more than 2,000 years, China has used mediation as its major form of dispute resolution. It has long been recognized that the Chinese legal system has been one the worlds most committed institutions in the use of mediation to resolve disputes and a leader in developing ways to maximize its benefits and effectiveness (Colatrella, 2000). In the traditional China, the popularity of mediation came from the fact that it is grounded on traditional Confucian values, such as social harmony and compromise in resolving disputes. It aims to marge costs and time to resolve civil disputes involving neighbours, families or colleagues.Even during the Maoist period, mediation continued to be largely used in the conflict resolution. The Confucian principles and the mediation process were mainly used by the Communist Party as a means of control of the masses and of promotion of social harmony, with the assistance of Peop les Mediation Committees (Colatrella, 2000). During the many years of economic reform, China has encountered important changes in its culture and society, as well as in its ways of resolve disputes. In Mao era (1949-1976), the dispute resolution institutions were intensify through reforms which established a code of civil law and formally institutionalized commissions.Because of the weakness of courts in China (costly, inefficient, long and not confidential), institutions like Peoples Mediation Committees are extremely important in dispute resolution. Today, while China is entering in an era of modernization, mediation is still largely used in China, as it is usually preferred by the Chinese people over formal dispute settlements for its saving in cost and time and for its deep impregnation in Confucian and Maoist philosophy. Bibliography Bevan, Alexander, Alternative Dispute Resolution, London Sweet & Maxwell, 1992. Chen G. M. , & Chung, J, The impact of Confucianism on organizati onal communication. intercourse Quarterly, 1994. Chen, G. M. & Xiao, X-S, The impact of harmony on Chinese negotiations. 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