Kay Elliott, a local professional resource and Global North Texas board member who teaches at the Wesleyan School of Law in Fort Worth, Texas, was invited to teach mediation techniques to 72 Chinese lawyers this past December at the Sino-US Legal Studies Center program at Xiangtan University in Hunan, China. The invitation came as a direct result of being a professional resource for an International Visitor Leadership Program visit in late 2011. The subject of that visit was Legal Issues in the U.S.
We are sharing Kay’s article as an example of relationships built and collaborations established as a result of the International Visitor Leadership Program. Kay is actively working to cement a continuing relationship between Texas Wesleyan and Xiangtan University. The article provides some great insights about the rapid changes occurring in Chinese city life, how law is practiced in China, and the great enthusiasm she encountered by her students to learn more about American legal processes.
MEDIATION TRAINING IN CHINA – THE AMERICAN WAY
Some days the inbox contains a surprise package, and October 15, 2012, was one of those days. At our house, the early morning routine often includes a coffee – clutching – bathrobe-clad visit to the computer to see what has been happening in the world and what is coming into our world. On that morning the first email was from someone I had met the previous year when he was serving as a simultaneous translator for a group of international visitors from China. The U.S. State Department frequently sponsors citizens from many countries, some of whom are lawyers and judges. As a board member of the North Texas Council for International Visitors, it is my pleasure to welcome these visitors to the charms of Fort Worth and to Texas Wesleyan School of Law for presentations on law and dispute resolution. The translator, Chi-Ho, was inviting me to go to China and teach mediation within the next six weeks! The training would be part of the Sino-U.S. Legal Studies Center program at Xiangtan University, which has a leading position in China in the research of conflict resolution.
At first I thought it was spam but, always up for an adventure, responded with a query: “Tell me more!” He did and on November 29, Frank and I found ourselves bound for Hunan province to teach 72 Chinese about U. S. mediations. At the time the invitation was extended, my days were very full: end of semester exams were looming in a graduate program I began recently and there were the usual law school and mediation business responsibilities. However, the chance to revisit China and to teach there was irresistible.
My first visit to China was in 1972 as part of a family world tour. In 1985, Frank and I led a group of lawyers on a People to People tour of Russia and China. On neither of those trips was working an objective. This was an opportunity to design and deliver my first mediation training in China. For the first time in Hunan Province, everything would be financed by the Chinese government. During the entire experience, both in and out of the classroom, we would be “shadowed” by two highly qualified simultaneous translators, both of whom are now American citizens but spent their formative years in Hong Kong. They are truly bilingual and bicultural. They also exhibited a sophisticated understanding of conflict resolution concepts and terminology.
The first hurdle was transportation. The government was prepared to hire three experts and buy three economy class round trip tickets – but I proposed that only Frank accompany me, and that, due to arthritis, he would need a Business Class ticket. After some initial shock and resistance, the government agreed. Their decision meant a saving in hotel and food costs but was extremely unusual for them. The next hurdle was the design of a training program for a very different student group. They were asking for “American Style Mediation Training” and that is what we gave them. After a day spent in ceremony and visiting mediation venues in Hunan, the first two full days of training focused on five aspects of mediation: stages of mediation and interest-based bargaining, confidentiality, mediation ethics, enforcement of mediation agreements and the neuroscience of persuasion. Everything was presented in a power point format that had to be translated into Chinese long before we arrived. A teaching roleplay, integral to the training, was sent in two formats: written parts for the mediator and the two parties plus a DVD of the actual mediation with breakout explanations from the mediator: Professor Len Riskin. All of that had to be cleared with the owners of the intellectual property rights before it could be translated and later incorporated into a book and a DVD of our training. One condition I placed, when agreeing, is that all of the training would be filmed and that we would be provided with the finished product for review and other uses. That was done and soon I will have the finished product.
Another two roleplays were used: one a case I had actually mediated and the other supplied by mediation trainers from JAMS in Massachusetts who had worked with a different group in Hunan earlier in 2012. China has imported several law professors in recent years, one of whom is Tasha Willis from the University of Houston. She tells me that she was most surprised by the level of interest in mediation that the students displayed. They arrived early with questions each day and often stayed after class to follow up on further questions. All of them had read all of the materials before she arrived. We had a similar experience. The students were well prepared, engaged, serious about learning, had many questions and were very cheerful. One aspect of their local process that struck me was their unwillingness to look the parties in the eye and show compassion when the parties told their stories and expressed negative emotions. Another technique they were not familiar with was brainstorming. Because we were teaching interest-based bargaining, we focused on the importance of identifying human needs and feelings before other parts of the process. This is apparently very different from their approach, which might be said to be more directive than facilitative. Since we never saw them in an actual mediation, I can only speculate. I was told that the general approach of government designated mediators is to listen to the dispute and to explain the law to them before suggesting a resolution. From that description, my impression is that self- determination of the parties is less valued than assessing fault or responsibility for the conflict and ending it to enhance community harmony.
A short explanation about mediation in China is necessary to put these last comments in context. There are three kinds of mediation in China: administrative, judicial and community. The most widely used is the community mediation system. This article will focus on community mediation and in future articles I will widen the lens to look at administrative and judicial mediation. China continues to have an elaborate system of local mediation committees for interpersonal disputes, with over 870,000 such organizations. The number of mediators doing this type of work has been estimated at 6,800.000. We visited two of these mediation committees in Changsha, the city of over 3,000,000 where we taught. Although we did not actually witness a mediation, the process was explained and sounded very similar to a mediation that might occur at one of our Texas Dispute Resolution Centers. All mediators are state-designated and state trained. One apparent explanation for the recent importation of American mediation trainers is the need to mitigate increasing strife amongst a huge populace that is rapidly moving away from rural to urban areas and changing lifestyles. See Read and Michelson, Mediating the Mediation Debate: Conflict Resolution and the Local State in China, 52 Journal of Conflict Resolution 737 – 764 (2008). This reference is the source for most of the estimates in this paper, including newspaper references about the many millions of rural Chinese moving into the cities and the social changes resulting from the mass migration.
In the two cities we visited, Changsha and Xian (population over 8,000,000), tall apartment buildings were being rapidly built to join the many others we saw that were occupied. In some cases building crews work around the clock – never ceasing until the building is complete. Apartment buildings and other housing structures far outnumbered the office buildings and commercial structures. The departure from villages and agrarian endeavors is having a ripple effect on social norms and structures. Citizens who stay in the rural environment, participate frequently in village activities, and know the local authorities are more likely to participate in mediation with government designated mediators. In the cities, neighborhood mediation centers, like the ones we visited, are busy too, though the forum choices for dispute resolution may be broader. Villagers’ Committees (VCs) in the countryside not only are chosen more often by disputants than Residents’ Committees (RCs) in the cities, but the range of issues villagers take to their community leaders is broader than in the urban areas. The choice of mediation is conditioned on several factors: the possibilities for settlement, the type of dispute, the characteristics of the community and the individual disputant, and the other forms of alternative dispute resolution available. Women are more likely to choose mediation than men. Some studies show that mediation is not as effective as state statistics report. Mediation is still a substantial part of dispute resolution in both rural and urban environments, and there are far more mediators than lawyers in China.
It is often said in articles on Chinese mediation that Confucius articulated ideals of social harmony and practices and that both dynastic and Communist leaders have a preference for mediation. Like most global assessments, this one does not accurately reflect current, modern dispute resolution in China. By law, community mediation centers are autonomous organizations that give people the opportunity to educate, serve and administer themselves. In fact, they are closely connected with and subordinate to the state and Party. The hierarchy flows from city governments down to district governments and Street Offices, ending in the RCs. For rural area, above the VCs are provinces, counties, and townships. Although unlike most Western countries, this structure is seen in other parts of East Asia, such as the democratic countries of Japan, Indonesia and South Korea, and the authoritarian state of Singapore.
The characteristics of the mediation process and the outcomes of different types of cases in China differ and can take many forms. It may not even be regarded as mediation per se by all of the participants in a given case. In the community context, the most common situation is that a claimant makes an appeal to local authorities to take his or her side in a dispute and put pressure on other parties – more of an intervention than a facilitation. The mediators at the RC typically cannot impose or implements a settlement. They do not usually inject themselves uninvited into a dispute and seldom mediate divorce disputes.
Our experience in China was enlightening, though it raised more questions to be answered: what is the role of law in Chinese mediation and how does that differ from the role of law in U.S. mediation? My current impression is that in both countries, law is not a normative force in mediation but can be used to inform a party’s substantive position and has potential persuasive power as a cultural standard. In both countries mediation assists in maintaining social order, improving troubled relationships, and relieves stress on the trial system. As we read and research further, we hope to understand both the similarities and the commonalities of the mediation process in the two countries.
One of the objectives of our work in China was to create a long-term relationship between Texas Wesleyan and Xiangtan University. That may or may not happen. But from a personal perspective, we formed positive, interesting relationships with the law school faculty and hope to be invited to return. As is often the case, we learned from the students. The last day of the three day training was revelatory. Our students divided into three groups and presented a 30 minute mediation to show us what they had learned. In addition to a mediator and two parties (a business relationship between family members with a financial dispute), the fourth member of each group was “settlement counsel”. The role of settlement counsel is to help formulate an intervention strategy and to report to the large group prior to the roleplay. At the end of the presentation that person assessed whether the strategy worked and what the group had learned from the exercise. All three groups demonstrated a more interest-based approach to mediation and were able to use new concepts and terminology covered in the training. Prizes were given to each group for creativity, professionalism and thoroughness.
The overall impression of China and Chinese students was consistent with our previous visit to China in 1985. The people are industrious, optimistic, eager for learning, curious about other cultures and ready to incorporate new practices and approaches to mediation. There is a desire to learn about mediation from the U.S. perspective and to adapt our techniques to their needs. We were fortunate to be part of that quest.