Mediating Disputes in China - Chapter II.4 - Practitioner's Handbook on International Arbitration and Mediation - 3rd Edition
Meg 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.
Originally from Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition
This chapter discusses mediation in China: the recent resurgence and reform of mediation in response to increased commercial disputes arising from China's rapid economic and social growth. The discussion covers types of mediation in China, legalizing and professionalizing mediation, various mediation institutions and available resources, and current and future trends toward implementing mediation as an effective dispute resolution option.
§ 4.01 Introduction
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.
[1] 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.
[2] Advantages of Mediation
The advantages of mediation include informality, flexibility, confidentiality, time and costs savings, and its non-litigious framework. Another important benefit is the preservation of the relationship between the parties, an important consideration when doing business in China.
§ 4.01 Introduction
[1] What is Mediation?
[2] Advantages of Mediation
[3] Disadvantages of Mediation
§ 4.02 History Rooted in Confucianism
§ 4.03 Nature of a Chinese Mediation
§ 4.04 What to Expect as a Foreign Party
§ 4.05 Recent Legalization of Mediation
§ 4.06 Types of Mediation in China
[1] Arb-Med
[2] Stand-Alone Mediation
[3] Mediation during Litigation
§ 4.07 Mediation Institutions
[1] The Shanghai Commercial Mediation Center
[2] The Beijing Arbitration Center
[3] The U.S.-China Business Mediation Center
[a] The CPR/CCPIT Mediation Procedure
[4] Other China-Foreign Mediation Centers
§ 4.08 Mediation in Hong Kong and Singapore
§ 4.09 Conclusion