More companies turn to mediation-arbitration mix for dispute resolution
October 10, 2009 | BY
clpstaff &clp articles &Almost one-third of cases referred to the China International Economic and Trade Arbitration Commission were settled through a combination of mediation…
Almost one-third of cases referred to the China International Economic and Trade Arbitration Commission were settled through a combination of mediation and arbitration last year.
The figure was quoted by Yu Jianlong, vice-chairman and secretary-general of the Commission (Cietac) while speaking at a recent conference organised by the Hong Kong International Arbitration Centre.
“In China, we have a very long tradition to cherish harmony,” Yu said. “Cietac also adopted traditional Chinese values in its proceedings … a combination of arbitration with mediation.”
This practice, which was also incorporated into the 1994 PRC Arbitration Law, takes two main forms: Med/Arb and Arb/Med. The first is a form of proceedings in which mediation is used first and a successful outcome is then referred to an arbitral body which will issue an enforceable award, known as a consent arbitral award. In the second, an arbitral proceeding may turn into mediation after one of the parties suggests it is willing to settle the case.
According to Yu, the advantages of this form of dispute solution outweigh any doubts over its effectiveness and enforceability, and concerns over natural justice.
“You can maintain a friendly relationship between the parties and save time and energy,” he said.
The Supreme People's Court showed its support for mediation in August when it issued a policy decision encouraging alternative dispute resolution – the Several Opinions Concerning the Establishment of a Sound Conflict and Dispute Resolution Mechanism that Connects Litigation and Non-litigation Proceedings (关于建立健全诉讼与非诉讼相衔接的矛盾纠纷解决机制的若干意见). Concerns have been raised, however, over the possibility of excessive court interference in ADR proceedings, after recent comments from a top judicial official.
According to Cietac, the Commission is able to combine arbitration with a number of other alternative dispute resolution procedures, including straight mediation or conciliation, final offer arbitration, court-annexed evaluation, early neutral evaluation, and summary jury trials.
1230 cases were filed with Cietac in 2008, and 1097 cases were closed.
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