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The Judge as a Negotiator: Claims Negotiating and Inequalities in China’s Judicial Mediation

Published online by Cambridge University Press:  27 December 2021

Xin He
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Abstract

I propose a three-way model of negotiation on judicial mediation: the judge as a negotiator. Primarily drawing on ethnographic observations of a civil judge in a basic-level court in hinterland China, I document Chinese judges’ tactics at the micro level. I find that the Chinese judge not only “expands” and “narrows” claims. In addition, included in her repertoire are “repression,” “conversion,” and “facilitation.” Following this, I explore the inequitable consequences of the judge’s apparent success in disposing cases. In negotiating the claims, the judge convinces or cajoles litigants who are economically vulnerable, inexperienced in the courtroom, legally bewildered, or timid in confronting the judges’ authority, into the settlement. But she often facilitates the claims of litigants who can mount credible political resistance. The interests of those who are vulnerable in one way or another, but not in a position to initiate political threats, are often dispensed. Inequalities are thus generated, reproduced, and reinforced. This three-way negotiation model provides a new perspective to study judicial mediation comparatively.

Type
Articles
Information
Law & Social Inquiry , Volume 47 , Issue 4 , November 2022 , pp. 1172 - 1200
Copyright
© The Author(s), 2021. Published by Cambridge University Press on behalf of the American Bar Foundation

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Footnotes

An earlier version of this article was presented at the Comparative Law Works-in-Progress Workshop at Princeton University (virtual) in March 2021. Donald Clarke, Jacques deLisle, Hualing Fu, Zhuang Liu, Cutis Milhaupt, David Nelken, Shitong Qiao, Kim Scheppele, Weill Rivka, James Whitman, and three anonymous reviewers of the journal provided invaluable comments. I am most grateful for the judge who kindly helped arrange my fieldwork investigation.

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