From “Access to Justice” to “Barrier to Justice”? An Empirical Examination of Chinese Court-Annexed Mediation

Abstract

AbstractThe literature on Alternative Dispute Resolution (ADR) has argued for the general advantages of courts’ providing mediation services. However, courts’ involvement in mediation cannot always be justified by those advantages, unless (1) the mediation process is a consensual procedure based on party autonomy and (2) where the initiation is mandatory, the courts’ allocation of cases is justified both by the public interest and a case selection system. In this context, this article empirically tests whether the established arguments from ADR theory can be applied to justify all Chinese court-annexed mediation practices. This study provides a negative answer, owing to the fact that some Chinese court-annexed mediation practices found in the fieldwork aim mainly at clearing dockets and achieving case management for the courts’ organizational interests. Offsetting the advantages, those Chinese court-annexed mediation practices prevent disputants from gaining access to the official adjudication procedure.