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¹³ Peerenboom, Randall P., China Modernizes: Threat to the West Or Model for the Rest? (New York: Oxford University Press, 2007) at 195Google Scholar.

¹⁴ The 3^rd Plenary Session of the Eleventh Central Committee of the Communist Party in China in late December 1978 is regarded as the event that launched China's post-Mao economic and legal revolution: Jianfu, Chen, “To have the Cake and Eat it Too?: China and the Rule of Law”, in Doeker-Mach, , Ziegert, Günther &, Klaus, E., eds., Law and Legal Culture in Comparative Perspective (Stuttgart, Franz Steiner Verlag, 2004) at 313Google Scholar.

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¹⁶ Jianfu, Chen, Chinese Law: Context and Transformation (Leiden; Boston: Martinus Nijhoff Publishers, 2008) at 173Google Scholar.

¹⁷ Ibid. at 152; Orts, Eric W., “The Rule of Law in China” (2001) 34 Vanderbilt Journal of Transnational Law 43 at 65Google Scholar.

¹⁸ Jianhua, Zhong & Yu, Ghanghua, “Establishing the Truth on Facts: Has the Chinese Civil Process Achieved this Goal?” (2004) Journal of Transnational Law & Policy 393 at 398Google Scholar.

¹⁹ Ibid.

²⁰ Chen, Chinese Law: Context and Transformation, supra note 16 at 168.

²¹ Jingwen, Zhu, “Data Analysis of Flow of Litigation into Different Channels in China” (2009) 30 Social Sciences in China 100Google Scholar.

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²³ Huang, Phillip C. C., “Court Mediation in China, Past and Present”, (2006) 32(3) Modern China 275CrossRefGoogle Scholar; Xiaobing, Xu, “Different Mediation Traditions: A Comparison between China and the US” (2005) 16 American Review of International Arbitration 515Google Scholar; Wolski, Bobette, “Culture, Society and Mediation in China and the West” (1997) 3 Commercial Dispute Resolution Journal 97Google Scholar.

²⁴ Under Mao, mediation was regarded as the primary dispute resolution tool to be used by the judiciary: Lubman, Stanley, “Mao and Mediation: Politics and Dispute Resolution in Communist China” (1967) 55 Cal. L. Rev. 1284 at 1325CrossRefGoogle Scholar.

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²⁸ Peerenboom & He, Dispute Resolution in China: Patterns, Causes and Prognosis, supra note 25 at 25.

²⁹ Ibid.; Huang, Court Mediation in China, Past and Present, supra note 23 at 275.

³⁰ Lubman, Bird in a Cage: Legal Reform in China After Mao, supra note 27 at Ch 8.

³¹ The Law of the People's Republic of China on Mediation and Arbitration of Labor Disputes.

³² Arbitration Law of the People's Republic of China, arts. 49-51.

³³ Wenfang, Tang, “Rule of Law and Dispute Resolution in China: Evidence from Survey Data” (2009) 9 The China Review 73 at 85Google Scholar.

³⁴ Zhu Jingwen, Data Analysis of Flow of Litigation into Different Channels in China, supra note 21 at 105.

³⁵ See further Xiaobing, Xu, “Different Mediation Traditions: A Comparison between China and the U.S.” (2005) 16 Am. Rev. Int'l Arb. 515 at 521–525Google Scholar. The Western Zhou Dynasty is from 1146 B.C. - 771 B.C., and mediation was recorded in their bronze vessels. The author also pointed out that mediation existed during the earliest Chinese history when the legendary Emperor Shun persuaded the people to follow the Wudian (five teachings).

³⁶ Ibid at 522.

³⁷ Lubman, Mao and Mediation: Politics and Dispute Resolution in Communist China, supra note 24 at 1290-1291. Also see Vera, C. De, “Arbitrating Harmony: Med-Arb and the Confluence of Culture and Rule of Law in the Resolution of International Commercial Disputes in China” (2004) 18 Colum. J. Asian L. 149 at 162–167Google Scholar.

³⁸ Ibid at 1286 and 1290; quoted from Schwartz, , “Some Polarities in Confucian Thought” in Nivison, D. & Wright, A., eds., Confucianism in Action (Stanford University Press, 1959) 50 at 56Google Scholar.

³⁹ Xu, Different Mediation Traditions: A Comparison between China and the US, supra note 23 at 524. The author is of the view that the criminal law-centered system tended to treat civil matters as minor and thus within conventional moral and social norms and, accordingly, to be handled mostly by private mediation or semi-administrative mediation.

⁴⁰ 郑杭生 & 黄家亮, 论现代社会中人民调解制度的合法性危机及其重塑—基于深圳市城市社区实地调查的社会学分析, 思想战线 6 (2008); Zheng, Hangsheng, and Huang, Jialiang, “On the Legitimation Crisis and Re-establishment of People's Mediation in Modern Society – Social Analysis on the Investigation Results in Shenzhen [Lun Xiandai Shehuizhong Renmin Tiaojie Zhidu De Hefaxing Weiji Ji Chongsu]” (2008) 6 Sixiang Zhanxian (Thoughts Front), available at <http://www.sociology.cass.cn/shxw/research/repotr/P020090105375713281082.pdf> (last accessed on 22 January 2010)Google Scholar.

⁴¹ Ibid. See further Xu, Xiaobing Different Mediation Traditions: A Comparison between China and the U.S., supra note 23 at 528-533. The author argued that government officials in imperial China conducted mediation when exercising their judicial power. These include Qin dynasty, Western Han Dynasty (206 B.C. – 24 A.D.), Shui Dynasty (581 A.D. – 618 A. D.), Sung ynasty, Ming Dynasty and Qing Dynasty.

⁴² See中国特色社会主义司法制度论纲 (沈德咏 ed., 2009), Shen, Deyong, ed., On the Socialism Legal System with Chinese Characteristic [Zhongguo Tese Shehuizhuyi Sifa Zhidu Lungang] (Beijing: People's Court Publishing House, 2009) 57Google Scholar. In Qin Dynasty, the mediation at Zhou (prefecture) or Xian (County) level was widely used, and it could be mandatory, took priority and enjoyed flexibility.

⁴³ Ibid at 100-101.

⁴⁴ Ibid at 120.

⁴⁵ Ibid. at 144-145.

⁴⁶ Ibid at 142-144. Ma Xiwu, during the anti-Japanese war, was the Chief Judge of the Longdong Court of the Shannxi, Gansu and Ningxia Regions, which was under the control of Communist Party of China. His way of judgement was to rely on people and it included simplification of procedures of litigation, circuit hearing, and judgement on site. He always combined the proceeding with mediation in making a judgement. His judgment style has influenced Chinese Civil Procedure Law.

⁴⁷ General Rules on the Organization of People's Mediation (temporary) (1954), art. 6.

⁴⁸ General Rules on the Organization of People's Mediation (temporary) (1954), art. 2.

⁴⁹ See Richman, R., “Civil Dispute Processing in China during Reform” (1991) 7 Ohio St. J. on Disp. Resol. 83 at 86–87Google Scholar. Also see Clarke, Donald C., Murrell, Peter & Whiting, Susan H., “The Role of Law in China's Economic Development” (2006) GWU Law School Public Law Research Paper no. 187 at 396Google Scholar.

⁵⁰ Lubman, Bird in a Cage: Legal Reform in China After Mao, supra note 27 at 59; Hualing, Fu, “Understanding People's Mediation in Post-Mao China” (1992) 6 J. Chinese L. 211 at 212 – 214Google Scholar.

⁵¹ Ibid at 216.

⁵² Regulation on the Organization of People's Mediation Committee (1989), art. 2.

⁵³ Regulation on the Organization of People's Mediation Committee (1989), art. 7.

⁵⁴ Regulation on the Organization of People's Mediation Committee (1989), art. 9.

⁵⁵ Provisions on the Hearing of the Civil Case with relation to People's Mediation Agreement (2002), art. 1.

⁵⁶ Provisions on the Hearing of the Civil Case with relation to People's Mediation Agreement (2002), art. 10.

⁵⁷ Others have contradicted this causal link, arguing that economic growth and the associated development of a commercial class fuelled the demand for increased legalisation ie that the growth in law was not a necessary pre-condition for economic growth but rather a collateral effect of rapid economic growth: Clarke, Donald, Murrell, Peter & Whiting, Susan, “The Role of Law in China's Economic Development”, in Brandt, Loren & Rawski, Thomas G, eds., China ‘s Great Economic Transformation (Cambridge University Press, 2008), Ch. 12Google Scholar.

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⁶⁰ According to the United Nations Human Development Indicators 2009, the Gini coefficient, which measures income disparity, for China (1992 – 2007) measured 41.5. The Gini coefficient for the same period in the United States was 40.8 and for Australia was 35.2; the higher the Gini coefficient, the greater the income disparity. Jiandong, Chen, Wenxuan, Hou & Shenwu, Gin, A Review of the Chinese Gini Coefficient from 1978 – 2005 (16 January 2008), determined that the Gini coefficient for China in 1978 prior to economic reform was 30.22, available at SSRN: <http://ssrn.com/abstract=1328998>Google Scholar.

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⁶⁶ See Communique of the Sixth Plenum of the 16th CPC Central Committee (11 October 2006), available online: <http://www.newsgd.com/news/chinakeyword/6thsessionof16thcpc/200610130017.htm>.

⁶⁷ In its Worldwide Governance Indicators Report 1996 – 2008, the World Bank ranked China in the 45^th percentile for rule of law: <http://info.worldbank.org/governance/wgi/sc_chart.asp>>Google Scholar. See further Castellucci, Ignazio, “Rule of Law with Chinese Characteristics” (2007) 13 Ann. Surv. Int'l & Comp. L. 35Google Scholar; Liebman, China's Courts: Restricted Reform, supra note 62 at 620; Lubman, Stanley, “Looking for Law in China” (2006) 20 Colum. J. Asian L. 1Google Scholar.

⁶⁸ Organic Law of the People's Courts of the People's Republic of China.

⁶⁹ Organic Law of the People's Courts of the People's Republic of China, art. 31(1).

⁷⁰ Organic Law of the People's Courts of the People's Republic of China, art. 31; Constitution of the People's Republic of China, art. 127.

⁷¹ Organic Law of the People's Courts of the People's Republic of China, art. 10.

⁷² Constitution of the People's Republic of China, art. 126; Organic Law of the People's Courts of the People's Republic of China, art. 4.

⁷³ Clarke, Murrell & Whiting, The Role of Law in China's Economic Development, supra note 49 at 395; Lin, A Quiet Revolution: An Overview of China's Judicial Reform, supra note 61 at 295.

⁷⁴ Organic Law of the People's Courts of the People's Republic of China, art. 12.

⁷⁵ Lin, A Quiet Revolution: An Overview of China's Judicial Reform, supra note 61 at 298.

⁷⁶ According to Jialiang, Huang, “How are Laws Practiced? A Sociological Analysis Based on a Judicial Case in China” (2008) 41 Chinese Sociology & Anthropology 41 at 70CrossRefGoogle Scholar: “…judges are like bureaucratic clerks; their decisions have to be approved by all levels in a hierarchy of power before they can take legal effect”. See further Lubman, Looking for Law in China, supra note 67 at 1.

⁷⁷ Peerenboom & He, Dispute Resolution in China: Patterns, Causes and Prognosis, supra note 25 at 17.

⁷⁸ He, Xin, “Enforcing Commercial Judgments in the Pearl River Delta of China” (2009) 57 American Journal of Comparative Law 419 at 422CrossRefGoogle Scholar. See further, McPherson, Stephen L., “Crossing the River by Feeling the Stones: The Path to Judicial Independence in China” (2007) 26 Penn St.Int'l L.Rev. 787Google Scholar; Gechlik, Mei Ying, “Judicial Reform in Chin: Lessons from Shanghai” (2005-2006) 19 Colum J. Asian L. 97Google Scholar; Liebman, China's Courts: Restricted Reform, supra note 62 at 620.

⁷⁹ Clarke, Murrell & Whiting, The Role of Law in China ‘s Economic Development, supra note 49 at 396; Wang, David T., “Judicial Reform in China: Improving Arbitration Award Enforcement by Establishing a Federal Court System” (2008) 48 Santa Clara L.Rev. 649 at 657 – 667Google Scholar.

⁸⁰ Tong, Yanqi, “Dispute Resolution Strategies in a Hybrid System” (2009) 9 The China Review 17 at 36Google Scholar; Peerenboom & He, Dispute Resolution in China: Patterns, Causes and Prognosis, supra note 25 at 20. See further Pei, Minxin, Guoyan, Pei Fei, Zhang, & Lixin, Chen, “China's Evolving Legal System”, Carnegie Endowment for International Peace: Issue Brief from Beijing (February 2009)Google Scholar, where in a survey conducted among commercial litigants in Shanghai a substantial majority found that the judge behaved professionally and conducted the proceedings with dignity. A substantial majority also believed that the proceedings were conducted according to law.

⁸¹ Jingwen, Data Analysis of Flow of Litigation into Different Channels in China, supra note 21 at 113, reports that the rate of enforcement of China's judgments fluctuated between 24% and 45% between 1992 and 2006. However, according to Jingwen, fluctuations in the enforcement rate did not correlate to changes in litigation rates during this period.

⁸² Castellucci, Rule of Law with Chinese Characteristics, supra note 67 at 59-60.

⁸³ Peerenboom & He, Dispute Resolution in China: Patterns, Causes and Prognosis, supra note 25; ibid at 14-15; He, Enforcing Commercial Judgments in the Pearl River Delta of China, supra note 78 at 448.

⁸⁴ The World Bank, Doing Business in China 2010, online: <http://www.doingbusiness.org/ExploreEconomies/?economyid=42>>Google Scholar.

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⁸⁶ Haicong, Zuo, “Legal Education in China: Present and Future” (2009) 34 Okla. City U L Rev 51 at 57Google Scholar.

⁸⁷ Law of the People's Republic of China on Lawyers, art. 8.

⁸⁸ Hung, Melissa S., “Obstacles to Self-Actualization in Chinese Legal Practice” (2008) 48 Santa Clara Law Review 213 at 230–232Google Scholar.

⁸⁹ Clark, Gerard J., “An Introduction to the Legal Profession in China in the Year 2008” (2008) 41 Suffock U. L. Rev. 833 at 187Google Scholar; Hung, Obstacles to Self-Actualization in Chinese Legal Practice, supra note 88 at 213.

⁹⁰ Law of the People's Republic of China on Lawyers, art. 42.

⁹¹ Rosenberg, Leslie J., “The Globalization of Justice: My Experience as a Public Defender in China”, Champion Magazine (November 2009) 44 at 45Google Scholar.

⁹² Carasik, Lauren, “‘Think Glocal, Act Glocal’: The Praxis of Social Justice Lawyering in the Global Era” (2008) 15 Clinical L. Rev. 55 at 81–83Google Scholar; Woo, Margaret YK, Day, Christopher & Hugenberger, Joel, “Migrant Access to Civil Justice in Beijing” (2007) 4 Loy. U. Chi. Int'l L. Rev. 167 at 184–195Google Scholar.

⁹³ Xie, Jun, “Access to Collective Litigations in China: A Tough Work” (2010 3 Journal of Politics and Law 45 at 49CrossRefGoogle Scholar, reports that legal aid thresholds are set so low that only those in extreme poverty qualify for assistance. See further Carasik, ‘“Think Glocal, Act Glocal ‘: The Praxis of Social Justice Lawyering in the Global Era, ibid.

⁹⁴ Ibid at 83.

⁹⁵ Law of the People's Republic of China on Lawyers, art. 25(5).

⁹⁶ Shigong, Li, “Should Lawyers Act as Mediators” 41 Beijing Review (15 October, 2009)Google Scholar.

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⁹⁸ He, Enforcing Commercial Judgments in the Pearl River Delta of China, supra note 78 at 431.

⁹⁹ Zhu, Data Analysis of Flow of Litigation into Different Channels in China, supra note 21 at 111.

¹⁰⁰ Measures on the Payment of Litigation Costs, 481, 159th sess., The State Council (2007).

¹⁰¹ He, Enforcing Commercial Judgments in the Pearl River Delta of China, supra note 78 at 432;

¹⁰² Ibid.

¹⁰³ Yang, Xiao, “An Insight into Foreign Investment Dispute Resolution in China”, in Li, Shoushuang, ed., The Legal Environment and Risks for Foreign Investment in China (Berlin: Springer, 2007) at 292–293Google Scholar, remarks that litigation fees and attorney fees in China are low and often insignificant compared with opportunity costs and collateral damage to reputation. See further Zhu, Data Analysis of Flow of Litigation into Different Channels in China, supra note 21 at 110-112.

¹⁰⁴ Tang, Wenfang, “Rule of Law and Dispute Resolution in China: Evidence from Survey Data” (2009) 9 The China Review 73 at 78Google Scholar.

¹⁰⁵ Tong, Yanqi, “Dispute Resolution Strategies in a Hybrid System” (2009) 9 The China Review 17 at 21Google Scholar.

¹⁰⁶ Ibid at 30.

¹⁰⁷ Ibid.

¹⁰⁸ Genn, Hazel, Pathways to Justice: What People Do and Think About Going to Law (Hart Publishing, 1999) at 150Google Scholar.

¹⁰⁹ Coumarelos, Christine, Wei, Zhigang, Zhou, Albert Z., Justice Made to Measure: NSW Legal Needs Survey in Disadvantaged Area (Law and Justice Foundation of New South Wales, 2006) at 115Google Scholar.

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¹¹¹ Xie, Zhuoyan, “Petition and Judicial Integrity” (2009) 2 Journal of Politics and Law 24CrossRefGoogle Scholar.

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¹¹⁵ Amnesty International, “Justice Denied: Harassment of Sichuan Earthquake Survivors and Activists” (30 April 2009) at 20, available online: <http://www.amnesty.org/en/library/asset/ASA17/018/2009/en/dbf100fd-c9f7-4675-91b4-e85e25460809/asa170182009eng.pdf>>Google Scholar.

¹¹⁶ Zhu, Data Analysis of Flow of Litigation into Different Channels in China, supra note 21 at 109-110 & 116-117.

¹¹⁷ Law on Mediation and Arbitration of Labor Disputes (2007), art. 10-16 and the Law on Mediation and Arbitration of Rural Land Lease Contract (2009), art. 7-11.

¹¹⁸ Jiang, Ping, “China's Rule of Law is in Full Retreat”, China Digital Times (20 March 2010)Google Scholar; Bequelin, Nicholas, “Beijing's Rule of Law Retreat”, Wall Street Journal (2 July 2007)Google Scholar.

¹¹⁹ Peerenboom, More Law, Less Courts: Legalized Governance Judicialization and Dejudicialization in China, supra note 113.

¹²⁰ Peerenboom & He, Dispute Resolution in China: Patterns, Causes and Prognosis, supra note 25 at 60.

¹²¹ Law of Civil Procedure of the People's Republic of China, art. 86. However note that Jialiang, How are Laws Practiced? A Sociological Analysis Based on a Judicial Case in China, supra note 76 at 54, reports that, applying simplified procedures, over 90% of civil cases are presided over by a single judge.

¹²² Law of Civil Procedure of the People's Republic of China, art. 87.

¹²³ Law of Civil Procedure of the People's Republic of China, art. 86.

¹²⁴ Law of Civil Procedure of the People's Republic of China, art. 88.

¹²⁵ Ibid.

¹²⁶ Law of Civil Procedure of the People's Republic of China, art. 91.

¹²⁷ Law of Civil Procedure of the People's Republic of China, art. 89.

¹²⁸ See, for example, Cumes, Guy, “Separation of Powers, Courts, Tribunals and the State” (2008) 19 ADRJ 10Google Scholar and Spencer, David, “Judicial Mediators: Is the Time Right? – Part II” (2006) 17 ADRJ 189 at 191–195Google Scholar. Despite these concerns, judicial mediation is becoming more popular in Australia: Australia, National Alternative Dispute Resolution Council, The Resolve to Resolve - Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (September 2009) at 105 – 107Google Scholar.

¹²⁹ Alexander, Nadja, International and Comparative Mediation: Legal Perspectives (Kluwer Law International, 2009) at 127–128Google Scholar.

¹³⁰ Huang, Court Mediation in China, Past and Present, supra note 23 at 278. Compare, for example, the following contrary statement from Chief Justice Spigelman of the Supreme Court of New South Wales, Australia: ‘There is a tendency today to treat the courts as some form of publicly funded dispute resolution service. Such an approach would deny the whole of the heritage we have gathered here [i.e. the 175th anniversary of the Court] to commemorate. This court does not provide a service to litigants as consumers. This court administers justice in accordance with law and that is a core form of government.’ The above is quoted in French, Brendan, “Dispute Resolution in Australia – the movement from litigation to mediation” (2007) 18 Australian Dispute Resolution Journal 213 at 219Google Scholar.

¹³¹ He, Enforcing Commercial Judgments in the Pearl River Delta of China, supra note 78 at 444- 445.

¹³² Minzner, Carl, “Judicial Disciplinary Systems for Incorrectly Decided Cases: The Imperial Chinese Heritage Lives On” (2009) 39 New Mexico L Rev 63 at 67Google Scholar.

¹³³ Huang, Jialiang, How are Laws Practiced? A Sociological Analysis Based on a Judicial Case in China, supra note 76 at 58-61; Huang, Court Mediation in China, Past and Present, supra note 23 at 303-304.

¹³⁴ See for example, Landerkin, Hugh F. & Pirie, Andrew J, “What's the Issue?: Judicial Dispute Resolution in Canada” (2005) 22 Law in Context 25 at 48–49Google Scholar and Boulle, Laurence, Mediation: Principles Process Practice, 2^nd ed. (LexisNexis UK, 2005) at Ch 1Google Scholar.

¹³⁵ Promulgated by the Supreme People's Court on 14 July 1992.

¹³⁶ This interpretation is reinforced by art. 8, Supreme People's Court, Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialism and a Harmonious Society (7 March 2007) discussed further below. Article 8 provides that the People's Court should ensure that the mediation agreement reached by the parties is not contrary to national and public interests, the legitimate rights and interests of those involved in the case, that there is no violation of law or administrative regulation, nor anything contrary to good custom and morality.

¹³⁷ Huang, Court Mediation in China, Past and Present, supra note 23 at 304; Huang, Phillip C. C., “Whither Chinese Law?” (2007) 33 Modern China 163 at 184CrossRefGoogle Scholar.

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¹³⁹ Brunet, Edward, “Judicial Mediation and Signaling” (2002) 3 Nev. L.J. 232Google Scholar; Menkel-Meadow, Carrie, “For and Against Settlement: Uses and Abuses of the Mandatory Settlement Conference” (1985) 33 UCLA L. Rev. 485 at 490–492Google Scholar.

¹⁴⁰ Colatrella, Jr, Michael, T, “‘Court Performed’ Mediation in the People's Republic of China: A Proposed Model to Improve the United States District Courts' Mediation Programs” (2000) 15 Ohio St. J. Disp. Resol. 391 at 405Google Scholar.

¹⁴¹ For a description of the preference of US judiciary for settlement and the proactive means that they use to achieve it, see Galanter, Marc, “‘A Settlement Judge, Not a Trial Judge:’ Judicial Mediation in the United States” (1985) 12 Journal of Law and Society 1CrossRefGoogle Scholar.

¹⁴² Alexander, International and Comparative Mediation: Legal Perspectives, supra note 129 at 139.

¹⁴³ Ibid at 143; Spencer, Judicial Mediators: Is the Time Right? – Part II, supra note 128 at 194; Robinson, Peter, “Adding Judicial Mediation to the Debate about Judges Attempting to Settle Cases Assigned to them for Trial” (2006) J. Disp. Resol. 335 at 353Google Scholar; Cratsley, John C., “Judicial Ethics and Judicial Settlement Practices: Time for Two Strangers to Meet” (2005) 21 Ohio St. J. Disp. Resol. 569 at 575Google Scholar; Deason, Ellen E., “Procedural Rules for Complementary Systems of Litigation and Mediation-Worldwide” (2004) 80 Notre Dame L. Rev. 553 at 564–565Google Scholar.

¹⁴⁴ For example, Deason, ibid at 563.

¹⁴⁵ Uniform Mediation Act, §4 – 8.

¹⁴⁶ Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters, art. 7.

¹⁴⁷ See discussion in Alexander, International and Comparative Mediation: Legal Perspectives, supra note 129 at 246-247.

¹⁴⁸ See, for example, Several Provisions on the Work of People's Mediation, art. 29, which provides that in principle people's mediations are conducted in public unless the mediation raises privacy concerns or involves the disclosure of business secrets or the parties object.

¹⁴⁹ Law of Civil Procedure of the People's Republic of China, art. 87.

¹⁵⁰ Barkai, John, “What's a Cross-Cultural Mediator to do-A Low-Context Solution for a High-Context Problem” (2008) 10 Cardozo J. Conflict Resol. 43 at 55Google Scholar.

¹⁵¹ Supreme People's Court, Several Opinions of the Supreme People ‘s Court on Further Displaying the Positive Roles of Litigation Mediation in the Building of a Socialist (2007), art. 12 and Supreme People's Court, Some Provisions of the Supreme People's Court on Evidence in Civil Procedures (2001), art. 67.

¹⁵² Incidentally the same issues arise under art. 51, Arbitration Law of the People's Republic of China, which authorises the arbitrator/arbitral panel to engage in conciliation during the course of the arbitration. See further art. 40.7, China International Economic and Trade Arbitration Commission (CIETAC) Arbitration Rules.

¹⁵³ The Warren, Hon. Marilyn, “ADR and a different approach to litigation”, Supreme Court of Victoria (18 March 2009) at 5, online: <http://www.supremecourt.vic.gov.au/wps/wcm/connect/justlib/supreme+court/home/library/supreme+-+speech+-+adr+and+a+different+approach+to+litigation+%28pdf%29>Google Scholar.

¹⁵⁴ For example, Australian Institute of Judicial Administration, Guide to Judicial Conduct, 2nd ed (2007), Rule 4.8Google ScholarPubMed; Court of Queen's Bench, Alberta, Guidelines for Judicial Dispute Resolution, art. 3(f); Quebec, Code Civil Procedure, RSQ C-25, art. 508.1.

¹⁵⁵ Peerenboom & He, Dispute Resolution in China: Patterns, Causes and Prognosis, supra note 25; Fu, Hualing and Cullen, Richard, “From Mediatory to Adjudicatory Justice: The Limits of Civil Justice Reform in China” (November 25, 2008) at chart 5, available at SSRN: <http://ssrn.com/abstract=1306800>Google Scholar.

¹⁵⁶ Peerenboom, More Law, Less Courts: Legalized Governance Judicialization and Dejudicialization in China, supra note 113 at 16; Fu, Hualing and Cullen, Richard, From Mediatory to Adjudicatory Justice: The Limits of Civil Justice Reform in China, supra note 155.

¹⁵⁷ Ibid. Fu, Hualing and Cullen, Richard, From Mediatory to Adjudicatory Justice: The Limits of Civil Justice Reform in China, supra note 155, at 56.

¹⁵⁸ Supreme People's Court, The People's Courts' Five-Year Reform Plan (20 October 1999)Google Scholar; Supreme People's Court, The Second Five-Year Reform Outlines for the People's Court (26 October 2005)Google Scholar; discussed in Liebman, China's Courts: Restricted Reform, supra note 62 at 624¬-625.

¹⁵⁹ Jialiang, How are Laws Practiced? A Sociological Analysis Based on a Judicial Case in China, supra note 76 at 57.

¹⁶⁰ Ibid at 55-57.

¹⁶¹ Promulgated by the Supreme People's Court on 7 March 2007.

¹⁶² Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialism and a Harmonious Society, art. 5.

¹⁶³ For example, Boulle, Mediation: Principles Process Practice, supra note 134 at 262-268; Spencer, David & Brogan, Michael C., Mediation Law and Practice (Cambridge University Press, 2006) at 109–119Google Scholar.

¹⁶⁴ For an outline of some of the difficulties that arise when dealing with complex disputes involving multiple parties, see Green, Eric D., “Mega-Disputes and Class Actions” in Golann, Dwight, ed., Mediating Legal Disputes: Effective Strategies for Neutrals and Advocates (American Bar Association, 2009) 325Google Scholar. However, the author notes that many class actions are successfully mediated and argues that adopting a less facilitative approach to mediation and involving the trial judge as a conciliator can lead to beneficial outcomes. See further Greenberg, Myron S. & Blazina, Megan A. “What Mediators Need to Know about Class Actions: A Basic Primer” (2004) 27 Hamline L. Rev. 191 at 220Google Scholar.

¹⁶⁵ For example, Luban, David, “Settlements and the Erosion of the Public Realm” (1994) 83 Geo. L.J. 2619Google Scholar. However for a contrary argument see Menkel-Meadow, Carrie, “Whose Dispute is it Anyway: A Philosophical and Democratic Defense of Settlement (in some Cases)” (1994) 83 Geo. LJ. 2663Google Scholar.

¹⁶⁶ Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialism and a Harmonious Society, art. 4.

¹⁶⁷ Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialism and a Harmonious Society, art. 12.

¹⁶⁸ Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialism and a Harmonious Society, art. 24.

¹⁶⁹ Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialism and a Harmonious Society, art. 20.

¹⁷⁰ Sourdin, Tania, “Mediation in the Supreme and County Courts of Victoria”, report prepared for the Department of Justice, Victoria, Australia, April 2009 at 64 – 65, available at SSRN: <http://ssrn.com/abstract=1395550>Google Scholar; Supreme Court of Western Australia, Annual Review 2007–2008 at 22–23Google ScholarPubMed.

¹⁷¹ Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialism and a Harmonious Society, art. 10.

¹⁷³ Ibid.

¹⁷³ Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialism and a Harmonious Society, art. 11.

¹⁷⁴ Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialism and a Harmonious Society, arts. 7 & 8.

¹⁷⁵ Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialism and a Harmonious Society, art. 14.

¹⁷⁶ Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialism and a Harmonious Society, art. 12.

¹⁷⁷ Third Five-Year Reform Plan for the People's Courts (2009-2013) (2009) cl. 26.

¹⁷⁸ Ray, Larry & Clare, Anne L., “The Multi-door Courthouse Idea: Building the Courthouse of the Future. + .Today” (1985-1986) 1 Ohio St. J. Disp. Resol. 7Google Scholar; Sander, Frank EA, “Varieties of Dispute Processing” (1976) 70 F.R.D. 111Google Scholar.

¹⁷⁹ Fu, Hualing and Cullen, Richard, From Mediatory to Adjudicatory Justice: The Limits of Civil Justice Reform in China, supra note 155 at 63-64.

¹⁸⁰ Several Opinions Concerning the Establishment and Improvement of Dispute Resolution Mechanism that Connect Litigation and Non-Litigation Proceedings, art. 7.

¹⁸¹ Several Opinions Concerning the Establishment and Improvement of Dispute Resolution Mechanism that Connect Litigation and Non-Litigation Proceedings, art. 10.

¹⁸² Ibid.

¹⁸³ Yeoh, Friven, “Enforcement of Dispute Outcomes” in Moser, Michael J., ed., Managing disputes in today's China: duelling with dragons (Kluwer Law International, 2007) at 260Google Scholar.

¹⁸⁴ Several Opinions Concerning the Establishment and Improvement of Dispute Resolution Mechanism that Connect Litigation and Non-Litigation Proceedings, art. 21.

¹⁸⁵ Ibid at art. 24.

¹⁸⁶ Ibid.

¹⁸⁷ Several Opinions Concerning the Establishment and Improvement of Dispute Resolution Mechanism that Connect Litigation and Non-Litigation Proceedings, art. 12.

¹⁸⁸ Several Opinions Concerning the Establishment and Improvement of Dispute Resolution Mechanism that Connect Litigation and Non-Litigation Proceedings, art. 30.

¹⁸⁹ American Arbitration Association, American Bar Association and Association for Conflict Resolution, Model Standards of Conduct for Mediators (September 2005).

¹⁹⁰ Hong Kong, Department of Justice, Report of the Working Group on Mediation (8 February 2010) at Annex 7.

¹⁹¹ Several Opinions Concerning the Establishment and Improvement of Dispute Resolution Mechanism that Connect Litigation and Non-Litigation Proceedings, arts. 14 & 15.

¹⁹² Ibid, art. 15.

¹⁹³ Ibid, art. 16.

¹⁹⁴ Ibid, art. 26.

¹⁹⁵ Ibid, art. 27.

¹⁹⁶ Ibid, art. 28.

¹⁹⁷ Ibid, art. 29.

¹⁹⁸ Ibid, art. 19.

¹⁹⁹ Ibid, art. 18.

²⁰⁰ Brunet, Judicial Mediation and Signaling, supra note 139 at 232.

²⁰¹ Ibid at 252.

²⁰² Resnik, Judith, “Managerial Judges” (1982) 96 Harv. Law Rev. 374CrossRefGoogle Scholar; Galanter, ‘A Settlement Judge, Not a Trial Judge:’ Judicial Mediation in the United States, supra note 141; Menkel-Meadow, For and Against Settlement: Uses and Abuses of the Mandatory Settlement Conference, supra note 139 at 485; Resnik, Judith, “Failing Faith: Adjudicatory Procedure in Decline” (1986) 53 U. Chi. L. Rev. 494CrossRefGoogle Scholar.

²⁰³ Judicial Conference of the United States, Committee on Codes of Conduct, Advisory Opinion No. 95 (2009).

²⁰⁴ Pakulski, J., “Social Inequality and Conflict Beyond Class: Developments in Contemporary China” (2010) 6 Asian Social Science 35 at 35, 40Google Scholar.

²⁰⁵ See Communiqué of the Sixth Plenum of the 16th CPC Central Committee (11 October 2006), available online: <http://www.newsgd.com/news/chinakeyword/6thsessionof16thcpc/200610130017.htm>.

²⁰⁶ See Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialist Harmonious Society, art. 1.

²⁰⁷ See Potter, P. B., “The Chinese Legal System: Continuing Commitment to the Primacy of State Power” (1999) China Quarterly 673 at 680–683Google Scholar. The author is of the view that China uses law as an instrument of social control and law remains politically contingent.

²⁰⁸ Raulli, D., “Why is the Rule of Law in China Unsuccessful?” (2009) 3 Insights (Hamilton College) 75 at 84–86, available online: <http://www.hamilton.edu/levitt/insights-undergraduate-journal/insights-spring-2009>Google Scholar. See supra, section III(A); sources: Liebman, China's Courts: Restricted Reform, supra note 62 at 620; Supreme People's Court, Work Report (10 March 2009).

²⁰⁹ Xie, Z., “Petition and Judicial Integrity” (2009) 2 Journal of Politics and Law 24CrossRefGoogle Scholar.

²¹⁰ Tanner, Murray S., Chinese Government Responses to Rising Social Unrest, supra note 63; Lum, Thomas, Social Unrest in China, supra note 63.

²¹¹ Opinion on Further Increasing the Positive Role of Mediation (in Litigation) in Constructing Socialist Harmonious Society, art. 2. This article provides that mediation (in litigation) has been rooted in Chinese traditional culture and has been proved by judicial practice to be an efficient means to resolve disputes.

²¹² See Sternlight, J. R., “Is Alternative Dispute Resolution Consistent with the Rule of Law-Lessons from Abroad” (2006) 56 DePaul L. Rev. 569 at 591Google Scholar: the author is of the view that the goal of ADR in a society of China which are more communitarian focuses more on preserving or creating a harmonious social relationship, while creating harmonious society is not part of the traditional western definition of ‘the rule of law’ and ‘access to justice’.

²¹³ See Wang, Senbo, “The Separation of Judge's Mediational and Inquisitory role―the Third Approach to the Reconstruction of Mediation System [J]” (2009) 6 Public Administration & LawGoogle Scholar.

²¹⁴ Several Opinions Concerning the Establishment and Improvememt of Dispute Resolution Mechanism that Connect Litigation and Non-Litigation Proceedings, arts. 1, 15, 20 & 22.