Omid Safa
December 2, 2008
IN SEARCH OF HARMONY: THE ALTERNATIVE DISPUTE RESOLUTION
TRADITIONS OF TALMUDIC, ISLAMIC, AND CHINESE LAW
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
See ALBERT FIADJOE, ALTERNATIVE DISPUTE RESOLUTION: A DEVELOPING WORLD PERSPECTIVE 2 (2004).
2
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
See NEUSNER & SONN, supra note 3, at 57.
6
See id. at 57-58.
7
Id. at 39.
8
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,
respectively.10
Covering matters like prayer, fasting, and pilgrimage, ibadat principles
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.
10
See Id. at 49.
11
Id.
12
BERNARD G. WEISS, THE SPIRIT OF ISLAMIC LAW 23 (1998).
13
Id. at 12.
14
H. PATRICK GLENN, LEGAL TRADITIONS OF THE WORLD 174-75 (3d. ed. 2007).
15
See WEISS, supra note 12, at 12-13.
16
NEUSNER & SONN, supra note 3, at 52.
17
Id. at 53.
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
MUHAMMAD RAZI, ENCYCLOPAEDIA OF ISLAMIC JURISPRUDENCE 95 (2007).
19
Id.
20
See id.
21
Id.
22
See FRANK E. VOGEL, ISLAMIC LAW AND LEGAL SYSTEM: STUDIES OF SAUDI ARABIA 48 -50 (2000).
23
See NEUSNER & SONN, supra note 3, at 57.
24
RAZI, supra note 18, at 100.
25
Id. at 101.
26
See WILLIAM MONTGOMERY WATT, ISLAMIC FUNDAMENTALISM 106-07 (1989).
4
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
Id.
31
See Iqbal, supra note 27, at 1039-40.
32
Id.
33
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
Ratno Lukito, Religious ADR: Mediation in Islamic Family Law Tradition, 44 AL-JAMI’AH 325, 337 (2006).
36
Iqbal, supra note 27, at 1037-38.
37
Id.
6
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
Lukito, supra note 35, at 335.
39
See Mohammed Abu-Nimer, Conflict Resolution Approaches: Western and Middle Eastern Lessons and
Possibilities, supra note 29, at 46.
40
Irani & Funk, supra note 34, at 8, 20.
41
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.
7
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
Western Literature, 15 J.L. & RELIGION 151, 175 (2002).
46
See id. (describing Islamic culture as a “culture of relatedness” where “family culture and inter-personal
relational patterns [are] characterized by dependent-independent relations with overlapping personal
boundaries.”).
8
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.
html#049.010 (emphasis added).
48
See also QUR’AN 4:114 in TRANSLATIONS OF THE QUR’AN, available at http://www.usc.edu/dept/MSA/quran/
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 QUR’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).
9
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
Iqbal, supra note 27, at 1040.
51
Id.
52
Id. (quoting FRANK E. VOGEL, ISLAMIC LAW AND LEGAL SYSTEM: STUDIES OF SAUDI ARABIA 154, 154
(2000)).
53
Id.
54
See id.
10
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
Id. at 1041-42.
56
Id. at 1041.
57
Irani & Funk, supra note 34, at 22.
58
See supra text accompanying note 48.
59
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.
11
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 ELLIOT N. DORFF & ARTHUR I. ROSETT, A LIVING TREE: THE ROOTS AND GROWTH OF JEWISH LAW 5
(1988).
62
Kellie Johnston, Gus Camelino, & Roger Rizzo, A Return to ‘Traditional’ Dispute Resolution: An
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
AND TRADITIONAL SOURCES,
XI (1978).
64
NEUSNER & SONN, supra note 3, at 18.
65
Id.
66
Id. at 20.
67
Id.
68
See DORFF & ROSETT, supra note 61, at 185, 188.
12
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
See id. at 185.
70
ADIN STEINSALTZ, THE ESSENTIAL TALMUD: THIRTIETH-ANNIVERSARY EDITION 57 (2006)
71
See id.
72
The Mishnah is believed to date back to 200 CE. SHAYE J. D. COHEN, FROM THE MACCABEES TO THE
MISHNAH 18 (1987).
73
Id. at 22-23.
74
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.
13
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
See id. at 32-38.
77
NEUSNER & SONN, supra note 3, at 18-19.
78
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.
14
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
See, e.g., id. at 3.
82
Id.
83
Id.
84
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
See id.
86
Johnston, Camelino, & Rizzo, supra note 62, at 5.
15
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
Id.
88
Id.
89
Id.
90
Id.
91
Heshey Zelcer, Two Models of Alternative Dispute Resolution, 4 HAKIRAH 69, 85-86 (2007).
92
Johnston, Camelino, & Rizzo, supra note 62, at 5.
93
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
See Kasdan, supra note 84, at 4.
95
See Benedetto, supra note 78, at 260.
96
Zelcer, supra note 91, at 85.
97
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.
98
Later passages of the Talmud appear to support this view by deeming
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
Lipner, supra note 97, at 320.
104
Bazak, supra note 98, at 2.
105
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
Benedetto, supra note 78, at 258.
107
Id.
108
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
Johnston, Camelino, & Rizzo, supra note 62, at 4.
110
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
Bush, supra note 102, at 1011.
112
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
See Bazak, supra note 98, at 4, 6.
114
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
DANIEL A. BELL & HAHM CHAIBONG, CONFUCIANISM FOR THE MODERN WORLD 1 (2003).
116
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
Id.
118
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
ZIMMERMAN, supra note 116, at 33.
120
BELL & CHAIBONG, supra note 115, at 1.
121
ZIMMERMAN, supra note 116, at 33.
122
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
See Clark, supra note 118, at 119.
125
Id. at 119-120.
126
See BELL & CHAIBONG, supra note 115, at 1.
127
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
ZIMMERMAN, supra note 116, at 32.
129
Clark, supra note 118, at 120-21.
130
ZIMMERMAN, supra note 116, at 32.
131
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
De Vera, supra note 123, at 163.
133
ZIMMERMAN, supra note 116, at 32.
134
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
Clark, supra note 118, at 121.
137
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.
24
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 Confucian 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
Philip C. C. Huang, Court Mediation in China, Past and Present, 32 MODERN CHINA 275, 279 (2006).
140
Lubman, supra note 137, at 199.
141
BELL & CHAIBONG, supra note 115, at 260-61.
142
Lubman, supra note 137, at 200.
143
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
Id.
146
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
Peerenboom & He, supra note 144, at 13.
148
Donald C. Clarke, Dispute Resolution in China, 5 J. CHINESE L. 245, 270 (1991).
149
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
China Statistics 2005, supra note 149, at §23-6.
152
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
See Jianxin, supra note 152, at 135.
155
Clarke, supra note 148, at 272.
156
Id. at 273.
157
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
Clarke, supra note 148, at 276; Ge, supra note 152, at 124.
160
Ge, supra note 152, at 124.
161
LAW IN THE PEOPLE'S REPUBLIC OF CHINA: COMMENTARY, READINGS, AND MATERIALS, supra note 143, at
88.
162
ORGANIC RULES OF PEOPLE’S MEDIATION COMMITTEES art. 4 (1989).
163
Clark, supra note 118, at 128.
164
Perkovich, supra note 158, at 324.
165
For example, committee members may receive three to five days of initial training, followed by additional
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
Id. at 324.
167
Served as President of the Supreme People’s Court from 1988 to 1998.
168
Jianxin, supra note 152, at 395.
169
Ge, supra note 152, at 124.
170
Lubman, supra note 137, at 225.
171
Id. at 225.
172
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
Id.
175
Id.; Ge, supra note 152, at 124.
176
Urs Martin Lauchli, Cross-Cultural Negotiations, With A Special Focus on ADR with the Chinese, WM.
MITCHELL L. REV. 1045, 1066 (2000).
177
Id.
178
See Clark, supra note 118, at 138.
179
Perkovich, supra note 158, at 324.
180
See supra notes 155-58 and accompanying text.
181
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 PROCEDURE 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
BELL & CHAIBONG, supra note 115, at 260.
185
Huang, supra note 139, at 278.
186
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 inadequate 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
See supra text accompanying note 49.
189
Colatrella, supra note 127, at 398.
190
See Clarke, supra note 148, at 257-63.
191
Perkovich, supra note 158, at 316; Colatrella, supra note 127, at 397, 404.
192
Peerenboom & He, supra note 144, at 7.
193
Clarke, supra note 148, at 258.
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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.
194
Colatrella, supra note 127, at 401.
195
Id. at 402; Clarke, supra note 148, at 255.
196
Clarke, supra note 148, at 255-56, 260.
197
Colatrella, supra note 127, at 403.
198
Id. at 403-04.
199
Clark, supra note 118, at 121-22.
200
See BELL & CHAIBONG, supra note 115, at 261-62 .
It encourages
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communication, highlights shared interests, and reaffirms collective values.201
Fostering
greater peace and social harmony – mediation is the tangible expression of li.
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
See Clark, supra note 118, at 132-33, 138.
202
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”).
34
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.”).
35
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.
36