Thesis (Doctoral). / "Bibliographie": p. [v]-vi.

This thesis focuses on the current court mediation institution in China against the worldwide movement of alternative dispute resolution in searching for more consensual and more efficient ways of resolving disputes. When the West is seeking more informality-oriented forms of dispute resolution, China, on the other side of the world, is making great efforts to improve its formal justice system rather than conventional means of dispute resolution like mediation. This thesis attempts to identify the role court mediation has played in Chinese legal history, to explore its current functions, to examine the rationale underlying the system, and to suggest its future reform. The economic analysis of law, particularly Posner's economic analysis of civil procedure and the Coase Theorem, and the ideas of Rawls' theory of justice provide theoretical underpinnings for this study. A review of these classical theories is conducted from the perspectives of efficiency and fairness. Although it is generally understood that both efficiency and fairness cannot be equally achieved by a legal policy, a good one should be concerned with both efficiency and fairness. The article concludes that the balance between efficiency and fairness should be presented in an optimal court mediation form. China's court mediation has remained an important means of dispute resolution, but left much to be improved. The author argues that the current court mediation is not as successful as it declares; it is, in fact, neither efficient nor just. The existing law governing court mediation does not provide a clear function and purpose for court mediation, nor does it consider the efficiency and fairness of court mediation. In practice, although it remains the dominant position in resolving disputes, it is merely a substitute for adjudication rather than a substantive alternative dispute resolution. By analyzing the current allocation of cases for different dispute resolutions, the author suggests that considering the overloaded court caseloads and the lack of a variety of alternative dispute resolutions in today's China, court mediation should be preserved, but thoroughly reformed, as a more acceptable and efficient means of resolving disputes. Upon its reform, this conventional means of dispute resolution with Chinese characteristics will play a positive role in the future.

Thesis (doctoral)--Universität Zürich.

Thesis (Revise). / Includes bibliographical references (p. 249-258), bibliographical references and index (p. 259-275). Includes bibliographical references.

Thesis (doctoral)--Humboldt-Universität, Berlin, 2000. / Includes bibliographical references (p. 225-250).

Thesis (Ph. D.)--Yale University, 1929, without thesis note. / "The Summa magna was composed by Hengham sometime after 20 November, 1272, and before 15 April, 1275 ... The Summa parva was not written for over a decade later, sometime after 25 March, 1285, and probably before 2 April, 1290"--Introd. "Extant mss. of the Summa magna and Summa parva": p. lxxiii-lxxviii. "Appendix B: The bibliography of the printed editions of the text edited by John Selden": p. [76]-79. Includes bibliographical references and index.

Inaug.-Diss.--Bonn. / Vita. Bibliography: p. 82-86.

Thesis (Ph. D.)--Yale University, 1929, without thesis note. / "The Summa magna was composed by Hengham sometime after 20 November, 1272, and before 15 April, 1275 ... The Summa parva was not written for over a decade later, sometime after 25 March, 1285, and probably before 2 April, 1290"--Introd. "Extant mss. of the Summa magna and Summa parva": p. lxxiii-lxxviii. "Appendix B: The bibliography of the printed editions of the text edited by John Selden": p. [76]-79. Includes bibliographical references and index.

Magister Legum - LLM / Civil litigation is the primary method of dispute resolution in the South African civil justice system. This process is characterised by a number of shortcomings which include the adversarial nature of the process which often creates further conflict between disputing parties and often results in permanently destroyed relationships between them. Further shortcomings include the highly complex, costly and time-consuming nature of civil litigation. These shortcomings infringe on the constitutional imperative of access to justice for South Africans, particularly for the indigent members of society. In addition, court rolls have become overburdened due to the rapidly increasing volume of litigation at court. This often results in extensive waiting periods before matters are heard at court and further infringes the attainment of access to justice. While progress has been made in enhancing the civil justice system over the years, the aforementioned shortcomings prevail. In recent years the South African government has introduced the concept of mandatory court based mediation to the civil justice system with the view of promoting access to justice and enhancing the civil justice system. In a nutshell, mandatory court based mediation refers a civil dispute to mediation once an appearance to defend is entered at court, in order to attempt the settlement of the matter. In the event of the dispute not being resolved, the matter is then referred back to the conventional litigation process for resolution. Mandatory court based mediation, while controversial and bearing valid criticism; aims to promote access to justice and reconciliation between aggrieved parties and remedies a number of the shortcomings currently plaguing the South African civil justice system. In answering the research question of whether this ADR process is suitable to implement in South Africa in order to remedy the shortcomings of its civil justice system, the following aspects are considered in this thesis: the benefits, advantages, and the constitutionality of mandatory court based mediation, as well as the criticisms and challenges of the process. South Africa may have an adversarial civil justice system, but is no stranger to the practice of mediation. Within South African civil law a number of fields have mentioned mediation as the preferred method of dispute resolution over years. These areas of law will be highlighted in this thesis. Internationally, the jurisdiction of the Australian states of New South Wales and Victoria will also be highlighted. This analysis is done in order to assess the implementation and function of a mediation system, as a preferred method of dispute resolution, across all areas of civil law within an adversarial civil justice system. The current civil justice system in South Africa needs to be remedied due to its negative impact on civil disputants and the nation of South Africa in a broader sense. This thesis does not suggest that mandatory court based mediation is a panacea for all ills plaguing the country’s civil justice system. However, this ADR process may suit South Africa and its implementation may make a considerable remedial contribution and possibly significantly enhance its civil justice system.

This thesis focuses on the current court mediation institution in China against the worldwide movement of alternative dispute resolution in searching for more consensual and more efficient ways of resolving disputes. When the West is seeking more informality-oriented forms of dispute resolution, China, on the other side of the world, is making great efforts to improve its formal justice system rather than conventional means of dispute resolution like mediation. This thesis attempts to identify the role court mediation has played in Chinese legal history, to explore its current functions, to examine the rationale underlying the system, and to suggest its future reform. The economic analysis of law, particularly Posner's economic analysis of civil procedure and the Coase Theorem, and the ideas of Rawls' theory of justice provide theoretical underpinnings for this study. A review of these classical theories is conducted from the perspectives of efficiency and fairness. Although it is generally understood that both efficiency and fairness cannot be equally achieved by a legal policy, a good one should be concerned with both efficiency and fairness. The article concludes that the balance between efficiency and fairness should be presented in an optimal court mediation form. China's court mediation has remained an important means of dispute resolution, but left much to be improved. The author argues that the current court mediation is not as successful as it declares; it is, in fact, neither efficient nor just. The existing law governing court mediation does not provide a clear function and purpose for court mediation, nor does it consider the efficiency and fairness of court mediation. In practice, although it remains the dominant position in resolving disputes, it is merely a substitute for adjudication rather than a substantive alternative dispute resolution. By analyzing the current allocation of cases for different dispute resolutions, the author suggests that considering the overloaded court caseloads and the lack of a variety of alternative dispute resolutions in today's China, court mediation should be preserved, but thoroughly reformed, as a more acceptable and efficient means of resolving disputes. Upon its reform, this conventional means of dispute resolution with Chinese characteristics will play a positive role in the future. / Law, Peter A. Allard School of / Graduate