Mediating Disputes in China - Chapter 7 - Dispute Resolution in China
Ms. Utterback is a Partner in King & Wood's International Dispute Resolution Group in the Shanghai office. She has represented U.S., European and Chinese companies in arbitration cases in venues around the world including the International Chamber of Commerce, the China International Economic and Trade Arbitration Commission and the Indian Council of Arbitration. She has also represented firms in litigation before U.S. courts in construction and commercial disputes, and counseled Chinese companies and their management on their rights in U.S. litigation. Ms. Utterback has represented clients in commercial disputes, joint venture disputes, and construction matters. She works to create viable solutions for her clients by considering how business objectives influence litigation strategy and how a litigation strategy may require a multi-planed approach. She helps her clients navigate the difficulties of cross-border and cross-cultural communication, particularly as it relates to doing business in China. Ms. Utterback joined King & Wood in 2010 prior to which she was a managing partner at a U.S. firm’s Shanghai office and a leading partner with their international dispute resolution practice. She is licensed to practice in the District of Columbia, Maryland, and the Commonwealth of Virginia and is a registered foreign lawyer in China.
Originially from Dispute Resolution in China
China has experienced tremendous economic growth in recent years. Party disputes are inevitably on the rise with the increase in formal business and trade transactions. The increase in large commercial disputes has prompted the need for modernization of dispute resolution practices in China. Mediation has experienced resurgence in the past decade with legal opinion shifting towards a more positive view, embracing mediation’s cost-effectiveness and humanity.1 Formal and viable practice solutions are necessary to mitigate risk, create regional security and foster continued foreign and domestic investment. Recently, the Chinese authorities and relevant dispute resolution institutions have taken the initiative to make adjustments, to encourage, support and enhance mediation. This chapter focuses specifically on mediation in China, the ongoing developments, key features, challenges, and trends.
A. What is Mediation?
Mediation, also referred to as “conciliation,” is an informal dispute resolution process whereby a mediator or neutral third party is used to facilitate negotiation and resolution between parties. There are many forms of mediation, ranging from collaborative to adversarial, informal to formal. Additionally, mediation can occur at anytime during the dispute, from inception to post-award.
II. History Rooted in Confucianism
III. Nature of a Chinese Mediation
IV. What to Expect as a Foreign Party
V. Recent Legalization of Mediation
VI. Types of Mediation in China
VII. Mediation Institutions
VIII. Mediation in Hong Kong and Singapore