Week 7
- Li, Kocken, and van Rooij, “Understanding China’s Court Mediation Surge: Insights from a Local Court,” Law & Social Inquiry, Vol. 43, No. 1, 2018, pp.58-81
- Ethan Michelson, “‘Many Cases, Few Judges’ and the Vanishing Three-Judge Trial,” Chapter 5, Decoupling: Gender Injustice in China’s Divorce Courts, 2022
indications of the “mediation surge” presented by the authors at the beginning of their article: since 2004, in both actual numbers and in percentage.
the Case Quality Assessment System incentivizing mediation: a number-oriented system with 31 indicators — 11 measures for the fairness of the trial, 10 measures for the efficiency of the trial procedure, and 10 measures for the outcome of the trial
2011 调撤率 (the number of cases concluded through mediation in a certain period of time) became a key index in court evaluation work
strategies of creative compliance:
- send clerks to file cases resolved by the labor arbitration committee, ensuring settlement quality without stepping in the dispute resolution process, and filter non-trouble-making but mediation-number-boosting cases
- judicially confirm already settled cases (mostly collective disputes!)—theses out-of-court mediation practices ended with the SPR’s restriction on the definition of mediation (2011 revision of CQAS)
- assign judge’s assistants and hire people’s mediators (confirming People’s Mediation Agreement by filing within the court for a Civil Mediation Agreement) to mediate at the case-filing division
- trial judges meditating collective disputes
Lower courts claim higher mediation rates without substantively doing much more mediation in the adjudicative process, simply by redefining the meaning of mediation the mediation surge represents mediation work done outside the court, by lower court judges and judicial clerks and in collaboration with labor bureaus and people’s mediators
According to Michelson, informal and formal responses court responses to judges’ difficult working conditions include:
- informal 1 faking collegial panels (1 in charge 2 others as mere accompaniments 陪而不审), 2 deputizing assistant judges (as solo judges in simplified procedure cases and as head judges leading two lay assessors, two assistant judges, or one of each on collegial panels in ordinary procedure cases, and therefore conserved judicial resources)
- formal (SPC) 1 promoting solo judging by expanding the scope of the simplified civil procedure (underway since the SPC’s 1999–2003 first five-year outline for court reform) 2 increasing lay assessor participation
The vanishing three-judge panel was the confluence of informal coping strategies from below and formal policy signals from above to close cases and clear their dockets.
Courts exploited vague rules (2012 Civil Procedure Law, pg.166) on the application of the simplified civil procedure. Judges have sometimes taken procedural shortcuts (167) and most “have regarded the choice of which civil procedure to apply as their prerogative” (169). “the process of designating cases as simple or complex (简繁分流) has been widely characterized as arbitrary and subjective” (166).
Courts creatively interpreted and stretched rules on deputizing assistant judges to act as full-fledged judges? “Although they lacked the status of fully qualified judges, they were nonetheless assigned to cases as if they were associate judges by courts taking advantage of a provision in the Organic Law of People’s Courts” (161). The supportive role they play and the permission to have them temporarily serve as full-fledged judges in a substitute function were used by courts to expand the ranks of frontline judges.
”the rise of the simplified procedure, increased lay assessor participation, and a shrinking corps of judges, taken together, drove the story of the vanishing three-judge collegial panel” (175)
The recent judge quota reform approached the problem of “many cases, few judges” “not as a shortage of judges but rather as too many poorly qualified judges working inefficiently” (171).