New People's Mediation Law Takes Effect

The People's Mediation Law, passed by the National People's Congress Standing Committee on August 28, 2010, became effective on January 1, 2011. The law's primary purpose is the resolution of minor disputes through mediation committees. Its passage reflects the government's continuing efforts to promote mediation, which, according to the Minister of Justice, is "the line of first defence" in achieving "social stability" and "harmony."

The new law's 35 articles cover mediation committees, committee members, mediation procedures, and mediation agreements, among other topics. As outlined in Articles 2, 3, and 9, people's mediation committees form the cornerstone of the law,and are organized by residence or work units for the purpose of mediating minor disputes among citizens. Article 2 also makes it clear that the committees' primary function is to guide and persuade parties to reach an agreement voluntarily. According to a June 22, 2010, Xinhua article, mediation committees handled more than 7.67 million disputes in 2009, and only 1 percent of mediated cases went on to litigation. Beijing, for example, had 7,840 mediation committees, 46,126 mediators, and 71,193 "mediation information personnel [tiaojie xinxiyuan] " and volunteers, according to a September 27, 2010, article in the Legal Daily.

The key provisions of the law clarify the legal status of mediated agreements, detail procedures to be used in mediation, and allocate sources of funding for the people's mediation committees.

1. Article 31 states "mediation agreements reached through people's mediation committees are legally binding…."
2. Article 32 allows either party to bring suit to a people's court if disputes arise regarding the execution or the content of a mediated agreement.
3. Article 33 allows the parties jointly to petition the court for judicial confirmation of the mediated agreement, if deemed necessary by the parties. Subsection 1 gives the complying party the ability to petition the court for enforcement of the mediated agreement against the non-complying party.
4. Article 12 delineates that residence committees and work units must provide for the people's mediation committees' work-related expenses.

The impact of the new Mediation Law remains unclear. Similar to laws in some civil law systems on which the Chinese legal system in part is modeled, the mediation law contains several sections with broad provisions. For example, Article 25 states that "mediators shall adopt appropriate preventative measures when mediating disputes that could escalate; cases that could lead to public disorder or criminal entanglement, mediators shall report to the local public security bureau or other relevant agencies." It is unclear how mediators and public security officers will implement this provision in practice, and what impact, if any, the "reporting" requirement will have. A related area of concern is the Mediation Law's impact on the rule of law and access to courts in light of the central government's extensive efforts to promote "social harmony" through mediation. As noted in the Congressional-Executive Commission on China's 2010 Annual Report, in recent years, the Chinese government has promoted an official "great mediation [da tiaojie]" campaign nationally, in part to relieve pressure on courts, and in part to resolve and settle [huajie] disputes at the grassroots level. It is unclear at present whether mediators and courts can function as neutral arbiters, resolving disputes free from coercion, and can protect parties' rights to access courts, given the central government's directive to resolve [huajie] disputes and to preserve "social harmony."

A third area of concern is the enforcement of mediated agreements. According to a July 7, 2010, Beijing Youth Daily article, based on data released by a court in Beijing, agreements in nearly half of the disputes settled through mediation are not honored by the parties, contributing to what the paper characterized as the "strange phenomenon" of too much mediation and too little enforcement.

For more information on mediation and access to justice generally, see Section III―Access to Justice in the CECC 2010 Annual Report.