Adr in China
ALTERNATIVE DISPUTE RESOLUTION (ADR) IN CHINA
In China, many forms of ADR are combined with litigation and arbitration, which can be called hybrid processes that ultimately lead to legally binding outcome under appropriate circumstances. Therefore, in China's legal practice, the meaning of ADR shall be slightly different from the normal definition, for example the result of ADR can lead to legally binding, hybrid processes, if it is agreed by both parties in dispute.
It is generally accepted fact that a third party intervention into a dispute, in whatever degree, is an indispensable feature of ADR in China. It is therefore not without negotiating a third party intervention considered a form of ADR. In the meantime, arbitration, despite its many advantages and similarities to other forms of ADR, due to its inherent nature of the end to a legally binding outcome of the parties in the form of enforceable arbital award, is not seen as a form of ADR by many people. Rather, alternative dispute resolution was considered, as the name suggests, as a way of resolving conflict, which is used as an alternative to litigation and arbitration. As already mentioned above, negotiations without an intervention by a third party is not regarded as ADR. The most commonly seen and most widespread forms of ADR are mediation and conciliation. Because of the linguistical limitations as well as the looseness of the ADR terminology in China, the term conciliation and mediation often is used interchangeably. Both of them are translated to tiaojie (调解) in Mandarin. But it is still practically possible to distinguish between the two.
Mediation, according to the Chinese definition, is an independent third-party technique in which a mediator helps the parties to focus on their real interests and strengths against their emotions in an attempt to unite towards a possible solution. It is crucial for the mediation process is that the independent third party to not make recommendations as to what
In China, many forms of ADR are combined with litigation and arbitration, which can be called hybrid processes that ultimately lead to legally binding outcome under appropriate circumstances. Therefore, in China's legal practice, the meaning of ADR shall be slightly different from the normal definition, for example the result of ADR can lead to legally binding, hybrid processes, if it is agreed by both parties in dispute.
It is generally accepted fact that a third party intervention into a dispute, in whatever degree, is an indispensable feature of ADR in China. It is therefore not without negotiating a third party intervention considered a form of ADR. In the meantime, arbitration, despite its many advantages and similarities to other forms of ADR, due to its inherent nature of the end to a legally binding outcome of the parties in the form of enforceable arbital award, is not seen as a form of ADR by many people. Rather, alternative dispute resolution was considered, as the name suggests, as a way of resolving conflict, which is used as an alternative to litigation and arbitration. As already mentioned above, negotiations without an intervention by a third party is not regarded as ADR. The most commonly seen and most widespread forms of ADR are mediation and conciliation. Because of the linguistical limitations as well as the looseness of the ADR terminology in China, the term conciliation and mediation often is used interchangeably. Both of them are translated to tiaojie (调解) in Mandarin. But it is still practically possible to distinguish between the two.
Mediation, according to the Chinese definition, is an independent third-party technique in which a mediator helps the parties to focus on their real interests and strengths against their emotions in an attempt to unite towards a possible solution. It is crucial for the mediation process is that the independent third party to not make recommendations as to what