The Revival of ADR in China: The Path to Rule of Law or the Turn Against Law?

Abstract

This Chapter outlines the mediation under the current legal system in PR China. The Chinese term of mediation refers to a process in which the parties voluntarily come to an arrangement about contested rights or obligations under the guidance of a third party. In some perspectives the Chinese term differs from the corresponding term in the western jurisdictions. There are various kinds of mediations available in China. They are governed by several different legal regulations, and thus the applicable legal areas, the requirements for mediation agreements, the specific mediation procedures, the enforceability of the settlement agreements of each type of mediation varies. Generally speaking, the mediation in China follows also the worldwide acknowledged principles such as the principle of confidentiality and voluntariness. Distinguished Principles stipulated in the statutes are the principle of lawful mediation and the principle of distinguishing right and wrong based on the facts. As to the enforceability and legal effect, the settlement agreements are treated as conventional contracts. In the court-annexed mediation, the mediation awards issued by courts based on the content of mediation settlements have the effect of res judicata. Settlement agreements reached in most of the other mediation procedures can obtain their enforceability by a judicial ratification. Certain foreign settlement agreements may also be recognized in China.