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THE LAW REFORM COMMISSION OF HONG KONG - page 260 / 360

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deplorable”.1142

However, Clarke, though recognising the importance of voluntariness in Chinese legislation and writings by academic commentators, holds the view that coercion may in fact be a vital part of a different competing logic operating within Chinese mediation institutions.1143

11.17Clarke contended that the institution that deals with a dispute is more important than the mode of dispute resolution the institution might use.1144  Clarke suggested that it is because of the weakness of the courts that other institutions become extremely important.

11.18Clarke raised concerns expressed by Chinese commentators that:

(1)The emphasis on mediation has resulted in too much time being spent by the courts on attempting to mediate instead of adjudication,

(2) the courts  are criticised for coming up with settlements not based on a clear understanding of the facts or law, and

(3)they ignore the principle of voluntariness and attempt to impose decisions through illegitimate pressure tactics.1145  

11.19Clarke explained that “the principle of voluntariness tends to yield in favour of the principle of fidelity to law and policy”.  Thus “it is plausible that an element of compulsion has come to be seen as acceptable by mediators because of the very obvious inadequacies of the court system”.1146  Clarke noted a trend of more persons turning to lawyers as mediators, though they are an arm of the state.1147  Perhaps this is a way of avoiding state norms which must be applied by the peoples mediation committees.1148

Cultural factors

11.20Bagshaw noted that:

“family relationships in China are vertical and at the same time are governed by mutual respect and interdependence.  Notions of harmony, reciprocity, mutuality and holism are valued as opposed to confrontation, competition and partialisation”.1149

11.21The Chinese mediators see their goal as upholding moral and legal obligations rather than meeting individual interests and needs.  Marriage and its

1142 “Dispute Resolution in China”, Journal of Chinese Law, Vol. 5, No. 2 (1991) 245, 246.

1143 Clarke, ibid at 246.

1144 Ibid at 252.

1145 Ibid at 272.

1146 Ibid at 293.

1147 Though since the article was written, some private lawyers are being allowed to set up their own offices.

1148 Supra at 295.

1149Infra at 4.  See also “Family Mediation Chinese Style,” Australian Dispute Resolution Journal, (February 1995) 12.

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