Originally from American Review of International Arbitration - ARIA

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THE ENFORCEMENT OF MEDIATION
SETTLEMENT AGREEMENTS IN CHINA∗
Jiaqi Liang**
 

I. INTRODUCTION

Mediation is a non-litigious method for dispute resolution in which the
disputants are able to exercise tremendous autonomy facilitated by a neutral third
party who has no binding authority to settle their dispute. As opposed to litigation
and arbitration, two traditional and systematically developed approaches to
resolving disputes which conclude with an adjudicative document, the mediation
settlement agreement is a consensual contract between the parties.

China is said to be the birthplace of conciliation and thus the Chinese tradition
of conciliation1 is referred to as “the Oriental Experience.”2 Today, the variants on
traditional conciliation still play a significant role in assisting the parties to resolve
their disputes and modern mediation is increasingly employed. However, there
exist concerns about the enforcement of mediation settlement agreements in
China. In contrast to worldwide issues such as improving the mediation process
and confidentiality, China has a peculiar deficiency in the area of enforcement,
despite the passion in this booming emerging economy for using mediation as the
optimal alternative dispute resolution mechanism. In the Chinese setting, the issue
of enforcement of the mediation settlement agreement3 arises from both an
implicit factor-- the intrinsic Chinese negotiation style, and the attitude toward
contract, and the explicit factor-- a degraded environment of business ethics and
deficiencies of legal and institutional support. As to these two factors, different
countermeasures are needed.

Part Two of this article will set out a general background on the issue of
enforcing mediation settlement agreements. Part Three will introduce the legal
operation of the mediation system and enforcement practices in contemporary
China. In Part Four, the article will focus on enforcing mediation settlement
agreements in China, from the standpoint of the implicit and explicit factors
respectively. Recommendations on enforcing mediation settlement agreements in
China will be discussed in Part Five. Finally, Part Six will offer concluding
comments.