Gendered Justice in China: Victim-Offender Mediation as the "Different Voice" of Female Judges.

Shuai Wei

doi:10.1177/0306624x20936202

Abstract

Attempts to uncover the “different voice” of female judges through testing the statistical significance of judges’ gender in decision making have offered inconsistent results. Meanwhile, a proliferation of research suggests that such “voice” might be detected through qualitative analysis. Existing findings indicate that when female judges have discretionary power regarding case management, they will typically foster a process of settlement. Based on this information, I conducted eight months of fieldwork in China and observed 68 victim–offender mediations in four district courts. I found that the criminal division is widely perceived as a masculine setting, and female judges are accustomed to employing mediation as a preferred dispute resolution method to facilitate reconciliation between the two parties and seek civil compensation for victims. Such judicial behavior is a result of propaganda from the Supreme People’s Court and a reflection of female judges’ life and work experience. By contrast, a neglect of mediation among male judges can be identified in the same workplace. The belief that mediation is feminine and time-consuming contributes to this neglect. In addition, rape lawsuits are an exception for mediation. This explorative research not only represents one of the first efforts to reveal a “different voice” in the Chinese criminal justice system but points out a direction of research for studying the judicial behaviors of female judges worldwide.

Highlights

In Shakespeare’s The Merchant of Venice, Portia, disguised as a man, assumes the role of a lawyer’s apprentice and eloquently pleads for the life of Antonio before a judge
During my time in the four district courts, I sensed that the criminal division is a masculine setting for female judges, and pretrial mediation is frequently used by them to settle conflicts between victim and offender, compensate the victim properly, and reach mitigating conditions for offender
My interviews suggested that when recruiting judges for certain positions, a male preference has been stronger in certain divisions

Summary

Introduction

In Shakespeare’s The Merchant of Venice, Portia, disguised as a man (which is the only way she can argue the law), assumes the role of a lawyer’s apprentice and eloquently pleads for the life of Antonio before a judge. The scope of these research outputs covers the methods of selecting judges in many parts of the world, and touches on the advancement of judicial careers for female judges One line of this inquiry examines the role of gender in the application of the law, and scholars have wondered whether women can bring something different to the adjudication process based on their life and work experience. Artis (2004) conducted in-depth, face-to-face interviews with 25 trial court judges in Indiana and investigated their accounts of whether they continued to use the tender years doctrine in custody disputes, even though the custody statute is explicitly gender neutral She found that female judges are less likely to support the tender years doctrine than male judges. Mediation “promised to be a feminist alternative to the patriarchally inspired adversary system,” which is arguably the most trenchant critic of alternative dispute resolution (Nader, 1993, p. 10)

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