Chinese judicial authorities are making a major push to increase the use of alternative methods to resolve administrative litigation cases. In part, this is an effort to improve mechanisms for resolving citizen grievances. But it is also specifically aimed at channeling cases involving sensitive issues affecting large numbers of aggrieved plaintiffs, such as land seizures, out of the courtroom.

Xiao Yang, president of the Supreme People’s Court, broadly noted the need to improve China’s administrative tribunals in a March 29 speech.  Xiao noted a range of problems with the work of China’s administrative tribunals, including outside interference in court decisions.  He called for a broad range of reforms to address these problems, such as allowing jurisdiction over a particular case to be shifted from a tribunal in one locale to another.

Xiao also specifically noted the need to adopt new mechanisms to handle administrative litigation disputes, particularly those involving "mass administrative disputes" such as land seizures.  He also called for judicial authorities to issue a judicial interpretation on the use of mediation (hejie) in administrative litigation proceedings.

Xiao stated:

Administrative disputes are contradictions among the masses.  The reasons that produce them are complex.  The situation of each administrative case is different.  As a result, the resolution of administrative disputes must use multiple different methods and means . . .

Under the prerequisites of establishing the facts, determining right and wrong, and not harming the national, public, or any other legal interests, we must recommend that administrative organs alter their administrative behavior, compensate the losses of  individuals injured by administrative action, and courts may decide to allow the individual affected by administrative action to withdraw his lawsuit. Particularly as to hotly disputed issues in society that raise mass administrative disputes, such as rural land seizures, urban demolitions, enterprise reform plans, labor and social security cases, and resource and environmental protection cases, it is particularly important to adopt coordinated means of [government action] (xietiao) to the greatest extent possible to handle them.

This requires administrative trial judges to both be skilled at judicial review of cases, and also have strong abilities to negotiate and coordinate, and to conduct work with the masses.  They must both protect the rights of the masses according to law, and also be good at leading parties to correctly and legally exercise their rights.  They must both ensure justice in individual cases, and also pay attention to maximizing the benefit to society.  They must both perform the duties of their job to their fullest ability possible, and also be good at obtaining the support of and relying on local Party committees and governments.  We must prevent and avoid disputes intensifying and changing in form because of errors in work.  We must firmly and promptly issue a judicial interpretation on the issue of coordination (xietiao) and mediation (hejie) in administrative litigation, in order to provide an effective basis for appropriately handling administrative disputes.

Chinese courts have moved to implement Xiao's call.  The Shanghai High People’s Court (HPC) has issued an opinion regarding the use of mediation in administrative litigation, according to an April 8 post on the China Court website.  Zhang Haitang, vice-president of the Shanghai HPC, noted that not all "legally correct" decisions are "reasonable" or "acceptable," and that the legal basis for the Shanghai opinion lies in article 51 of the administrative litigation law, which permits a court to authorize a plaintiff to voluntarily withdraw a lawsuit if the defendant alters the administrative action being challenged.

Increased use of alternative dispute resolution can be a very good thing.  Indeed, the excessive reliance on litigation as the means of choice to resolve citizen grievances has a range of negative consequences in other legal systems, such as that of the United States.  These include increased costs to parties and an inability to fashion flexible solutions acceptable to both sides.  Mediation can offer an alternative means to resolve some of these problems.

But the above calls for the adoption of meditation raise questions.  First, article 50 of China's Administrative Litigation Law (ALL) explicitly bans the use of mediation (tiaojie).  So, as a practical matter, it's unclear whether the Shanghai HPC opinion and Xiao's call for coordination (xietiao) and mediation (hejie) are simply circumventing the ALL's explicit ban on mediation.

Second, the emphasis on mediation in administrative cases is odd as a practical matter.  These are the cases in which the discrepancy in power between plaintiff and defendant is most pronounced, and in which a mediated outcome is most likely to skew the end result to the stronger party.  These are also the cases in which judicial authorities themselves are likely to face the strongest pressure from outside forces such as local Party or government authorities.  In short, these are the cases where the need for plaintiffs (and judges) to rely on clear legal norms, rather than backroom discussions, to protect their rights and guide their decisions is most pronounced.  In fact, this is the reason article 50 of the ALL bans the use of judicial mediation in these cases. 

Third, the particular emphasis on handling "hotly disputed issues in society that raise mass administrative disputes, such as rural land seizures" through mediation is problematic.  These would actually seem less amenable to mediation than, say, disputes between two individual parties with an ongoing relationship, such as marital or labor disputes, where both sides are invested in reaching a mutually acceptable agreement.  But Chinese authorities appear focused on directing collective and sensitive disputes toward mediation channels.  And this isn't just the case for administrative disputes.  On March 7, the Supreme People’s Court issued a circular emphasizing the need for mediation in civil disputes, particularly singling out disputes involving "large numbers of people with shared interests" and those that "are very sensitive, receiving significant social attention."

One possible explanation: Chinese judicial authorities may be uncomfortable with the use of the Chinese court system by legal activists to pursue high-profile cases over the past couple years.  Diverting to mediation those administrative and civil cases that pose direct challenges to government interests, or that have the potential to erupt into mass incidents, might be a way to keep them out of litigation, and possibly out of the public eye.  But without adherence to principles of voluntary settlements on the part of plaintiffs, neutrality on the part of judicial officials conducting the mediation, and ultimate resort to an independent judicial decision on the legal merits should the mediation fail, these measures run the risk of sacrificing the legal interests of plaintiffs.