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.
| Identifer | oai:union.ndltd.org:LACETR/oai:collectionscanada.gc.ca:BVAU.2429/11020 |
| Date | 11 1900 |
| Creators | Xin, Jianhong |
| Source Sets | Library and Archives Canada ETDs Repository / Centre d'archives des thèses électroniques de Bibliothèque et Archives Canada |
| Language | English |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Relation | UBC Retrospective Theses Digitization Project [http://www.library.ubc.ca/archives/retro_theses/] |
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