Originally from Business Disputes In China - 3rd Edition

Confucianism ushered in the informal settlement of civil disputes, partly owing to its customary insistence on the primacy of harmony. Arbitration, as well as mediation, is one of the conventional yet modern means for resolving civil and commercial disputes in Asia, where Confucianism has long held sway for thousands of years. This short paper examines the cultural norms and traditions or customs which have shaped modern arbitration laws and practices in Chinesespeaking regions in East Asia, particularly China and Taiwan.

Relationship between Confucianism and Gongduan Customs are often a fount of norms or standards to be applied in a formal legal process. By inference, Confucian customs, norms and traditions may also evolve to become law.

Zhongcai has been adopted as arbitration’s modern name in Chinese. The more conventional term is Gongduan), while mediation or conciliation has historically been known as Gongqin, Tiaochu, and Tiaoting. In modern times, however, all these terms are superseded most frequently by Tiaojie.

The character Gong (general welfare) in both terms Gongduan and Gongqin concurrently embodies the concepts of fairness (Gongping), justice (Gongzheng) and sometimes, openness (Gongkai). Duan means decision making (Jueduan) or judging (Caiduan). Gongduan is antithetical to Siliao, meaning to settle privately or inconspicuously. However, Gongduan or Gongqin was not considered necessarily a governmental duty. Rather, these activities were usually conducted in private communities by the local gentry or doyens of family clans sharing the power with parent officials (Fumu Guan), who were presumably delegated by the Emperor to manage the day-to-day affairs within their assigned territories.