Mediation in China

Ma's Approach to Decision Making

A key feature of Ma's approach, which persists today, is “mediation first, adjudication second” (xian tiaojie, [Page 1011]hou shenpan). Although the provisions of the 1991 PRC Civil Procedure Law do not make mediation mandatory before trial, its use in local settings, as well as by courts before and during both original and appellate proceedings, was encouraged by Ma. It has continued to be stressed, albeit with some modification, in the post-Mao era of reform since the late 1970s. Ma's efforts, which were an integral part of the Chinese Communist Party's more general attempt to develop a system of people's justice in pre-liberation China, were primarily focused on civil cases—most of which consisted of disputes over land rights and divorce—in the Border Region.

Reliance on mediation as the primary mode of decision making was regarded by Ma as a democratic practice (minzhu shijian), integral to the judicial system being created by the Chinese Communist Party as part of a general policy of the “mass line” (qunzhong luxian). Under the latter policy, the Party abandoned the elitist leadership style of unyielding ideology and rigid Party discipline that had been reasonably effective in urban areas. In its place, the Party introduced a more devolved approach that mobilized the often poorly educated and apathetic peasantry by allowing for a degree of popular participation in shaping policies and making decisions. In keeping with this revised approach, officials placed emphasis on the need in legal work not only to stress mediation but also to keep procedures informal and uncomplicated.

One particular case handled by Ma, still famous today in China, involved the marriage between Zhang Po'er and Feng Peng'er. When the two were still very young, their parents entered into a traditional contract of marriage, by which the youngsters were to marry as soon as they had grown up. Difficulties arose when the girl's father later promised his daughter's hand in marriage to a third party. Zhang and Feng then fell in love, complicating matters further. Zhang and his family “kidnapped and married” (qiangqin) the young Ms. Feng to Zhang. Feng's father then secured a local court declaration that the marriage was invalid. The local community, unhappy at this outcome, asked Ma to settle the matter. Ma is reported to have talked with the parties, especially the young girl, as well as with local officials, neighbors, and kinsfolk, gathering evidence and opinions in preparation for a new trial. At that event, held in front of the entire local community, a new judgment was issued, approving the marriage on the ground that it accorded with the principle of freedom of marriage.

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