Originally from American Review of International Arbitration - ARIA

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Nothing is permanent but change. – Heraclitus

Shutu Tonggui [reach the same destination via different routes] – Chinese idiom

Mediation is one of the world’s ancient modes of dispute resolution and is believed to be as old as human society itself. It evolved over time and differs from place to place. Today, although mediation is gaining popularity in many parts of the world, it is treated and practiced in a disparate manner. For instance, in the United States, mediation is but one — albeit claimed by some as the most important — of a number of methods of alternative dispute resolution (“ADR”). In contrast, in the People's Republic of China (the "P.R.C."), mediation is still percieved by many as the principal, favored means of dispute resolution.

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In accord with other studies of Chinese and American mediation, this paper is a comparative account. It covers the pre-modern traditions in the two countries. Mediation practice throughout imperial China is discussed, and the formation and development of the major types of traditional mediation practice, particularly semi-administrative mediation and judicial mediation, are addressed. With respect to the pre-modern American mediation tradition, the paper considers not only major sources in the past but also their decline and/or revival in modern times.

Methodologically, this paper is not an attempt to provide an exhaustive record of all mediation practice throughout pre-modern Chinese and American history. Rather, it focuses on major institutional mediation developments in both countries. (The term “institutional mediation” as used here means mediation conducted by institutions both with and without official authorization.) Only events that significantly influenced the development of institutional mediation are discussed.

To make this comparison possible, the author has adopted a broad concept of mediation that can accommodate theoretical and practical differences between mediation in China and mediation in the U.S. For example, mediation in China often results in solutions that are recommended by mediators and accepted by the parties when the parties cannot reach agreement by themselves.  Such Chinese mediation practice may not square with the now conventional American definitions of mediation as a conciliatory process in which a third party helps disputants to find their own resolution of a conflict.