In the Name of Harmony: The Erasure of Domestic Violence in China's Judicial Mediation

He, Xin; Ng, Kwai Hang

doi:10.1093/lawfam/ebs014

Cited by 40 publications

(40 citation statements)

References 12 publications

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“…During our fieldwork, we relied mostly on our written notes. The relative short sessions made extensive note taking plausible and less exhausting (see He and Ng 2013b). Toward the end of our fieldwork, the local judiciary kindly agreed to make available to us copies of official court transcripts of a number of trial sessions we had attended.…”

Section: Methodsmentioning

confidence: 99%

“…Judges ruled primarily based on the admitted evidence provided by the litigation parties and the examination of witnesses conducted during court hearings. Even in family cases for which mediation was legally mandatory, mediation as a practice was only summarily conducted (He 2009;He and Ng 2013b).…”

Section: Judicial Mediation In Chinamentioning

confidence: 99%

“…The singular purpose of Chinese-style mediation is to hammer out a deal. The "pragmatic discourse" that characterizes the judicial philosophy of Chinese judges in civil disputes therefore extends into the mediation session (He and Ng 2013b). This also means that adjudication and mediation constitute a single, continuous procedure.…”

Section: Uncontrolled Processmentioning

confidence: 99%

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Internal Contradictions of Judicial Mediation in China

Ng¹,

He²

2014

Law soc. inq.

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Judicial mediation in China represents an extreme case of integration between adjudication and mediation. Based on ethnographic work and extensive interviews, this article studies how judicial mediation actually works in China. It finds that the incorporation of mediation as part of the official trial process creates a set of internal contradictions. In addition to the role conflict inherent in a judge's acting also as a mediator, adjudication and mediation stages are organized by different principles. When the rather rigid format of adjudication is carried over to in‐trial mediation, it curtails the flexible, nonlegalistic approach that mediation is meant to promote. Challenged authority, an uncontrolled process, narrowed issues, and weakened norms all make a settled outcome difficult to achieve. In comparison with judicial mediation in other jurisdictions, this case study from China has important theoretical implications for understanding the limits of informal justice.

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Section: Methodsmentioning

confidence: 99%

Section: Judicial Mediation In Chinamentioning

confidence: 99%

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Internal Contradictions of Judicial Mediation in China

Ng¹,

He²

2014

Law soc. inq.

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“…In some instances, the mediatory style may fail to protect the rights of the weaker party. He and Ng (, ), for example, observe that the deployment of pragmatic discourse in court mediation failed to factor in domestic violence in divorce settlements. Therefore, some adherence to the legal framework guarantees the basic rights of the weaker party and to prevent court mediation from being carried out entirely on the basis of power disparities.…”

Section: Rule Formalism Reconsideredmentioning

confidence: 99%

Mediatory Versus Legalistic Discourse in Chinese Courts

Li²,

Feng

2017

PoLAR

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Drawing from detailed courtroom discourses on divorce cases in China, this article provides a micro‐level comparison between two styles of case handling: mediatory and legalistic. The two styles differ in discourse multiplicity, discourse interchange, interruption, and dispute processing. It finds that in terms of dispute resolution, the mediatory style seems to fare better than the legalistic style. One major reason for the difference is that the legalistic style tends to suppress rather than uncover what truly matters for the litigants. The mediatory style also seems to better fit the cultural expectation of suburban and rural China. The findings compel reconsideration of the extent to which rule formalism in transitional China should be promoted.

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“…There were two main parts to our data collection (cf. He & Ng 2013). Gaining access to the court through personal connections, we were introduced to the judges hearing the cases and were allowed to sit in the courtroom during the whole trial process.…”

Section: Studying Courtroom Discourse In South Chinamentioning

confidence: 99%

Pragmatic Discourse and Gender Inequality in China

He¹,

Ng²

2013

Law Soc Rev

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Using courtroom dialogs from actual court trials in China as data, this article analyzes an emerging "pragmatic discourse," deployed by judges to assist, but at the same time to constrain divorcing women. Through questions, statements, rebuttals, and other interactional devices, Chinese judges define the premises that underpin the law's understanding of gender equality and women's welfare. By looking at how discourses are deployed by judges and litigants, we link micro linguistic practices to more general social forces and processes. Despite their honest effort to protect women's rights, Chinese judges often inadvertently reinforce and reproduce the patriarchal norm. The data demonstrate how the hegemonic patriarchal order reasserts itself in an institutional forum that is meant to promote gender equality. The interaction of the discourses also highlights the tensions in Chinese society and displays the effect of changing social environment on the legal operation. By many measures, the Chinese family law is exemplary in its provision of protections for women. The principle of gender equality is enshrined in the Chinese Constitution. A law passed by the National People's Congress in 1992, the "Women's and Children's Rights Protection Law," provides women facing divorce with a range of specific protections. More recently, as a response to the emerging problems faced by women in the now market-oriented China, the 2001 amendment of the Marriage Law penalizes spouses who have committed bigamy, illegal cohabitation, family violence, or desertion (Art. 46). While this article is gender neutral in its wording, it is clearly motivated by the goal of protecting women.

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In the Name of Harmony: The Erasure of Domestic Violence in China's Judicial Mediation

Cited by 40 publications

References 12 publications

Internal Contradictions of Judicial Mediation in China

Internal Contradictions of Judicial Mediation in China

Mediatory Versus Legalistic Discourse in Chinese Courts

Pragmatic Discourse and Gender Inequality in China

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