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THE LAW REFORM COMMISSION OF HONG KONG - page 261 / 360

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problems are not just the private concerns of the parties but as important to the interests of the community.  “Under the Communist system, individual and family interests are subsumed under the national goals of development.”1150  

11.22Even though Chinese mediators use terms like “informality, voluntariness and neutrality”, Bagshaw argued that they exercise social control and publicise laws.1151  The mediation services therefore have an implicit component of formality in a decentralised form, with the mediators behaving more like government bureaucrats than natural helpers.1152  

“The socio-emotional and individual needs are largely ignored, with an emphasis on upholding the laws and the common good....  Whilst labelling what they do as ‘neutral’, Chinese mediators tend to make explicit and direct judgements and openly use a mixture of persuasion, education and coercion to convince the disputants to the correct political view”.1153

11.23However, Bagshaw recognised that societal and family values are also overtly and covertly promoted in Australia and other Western countries.  Bagshaw questioned the extent to which Western mediation models are relevant to, or produce fair outcomes for non-western peoples.

“Western models of family mediation ... reflect a cultural bias towards rationality, individuality, an orientation to the future and an emphasis on formal agreement or outcome rather than on the relationship between the participants and the process.” 1154

Japan

Mediation in Japan

11.24Mediation appears to be overtly value laden in Japan though the pressure to compel consensus can be more subtle in Japan than in Mainland China.  Minamikata1155 stated that 90% of divorces are by mutual consent and the remaining cases go through a mandatory attempt at mediation.  This is designed to try and get a consensus view of the parties.  His account is quite negative, with him concluding:

“The ambiguities which enable well meaning and committed mediators to give of their best may also confer a disturbing potential for abuse and oppression.”

1150Bagshaw quotes Leung, “Family Mediation with Chinese Characteristics; a hybrid of informal service in China” Monograph series, “Social Welfare in China”, No 1, Department of Social Work and Social Administration, Hong Kong University, (1991).

1151 Bagshaw, infra at 4.

1152Leung, quoted by Bagshaw infra at 5.

1153Bagshaw infra at 6.

1154“Whose idea of fairness? Examining the impact of culture on the mediation process”, Conference papers, Second International Mediation conference, “Mediation and Cultural Diversity”, Adelaide January 1996, 1.

1155 Kaji Chotei, “Mediation in the Japanese Family Court” in Dingwall and Eekelaar, (Eds) Divorce mediation and the legal process (1988) at 116.

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