Disputes Resolution in Urban Communities in Contemporary China [1st ed.] 9789811586439, 9789811586446

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Jieren Hu

Disputes Resolution in Urban Communities in Contemporary China

Disputes Resolution in Urban Communities in Contemporary China

Jieren Hu

Disputes Resolution in Urban Communities in Contemporary China

Jieren Hu Tongji University Shanghai, China

ISBN 978-981-15-8643-9 ISBN 978-981-15-8644-6 (eBook) https://doi.org/10.1007/978-981-15-8644-6 Jointly published with Shanghai People’s Publishing House The print edition is not for sale in China (Mainland). Customers from China (Mainland) please order the print book from: Shanghai People’s Publishing House. © Shanghai People’s Publishing House 2020 This work is subject to copyright. All rights are reserved by the Publishers, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publishers, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publishers nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publishers remain neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

For My Husband Xiaoming Ding

Foreword

Social consensus theory and social conflict theory are two important theories in social analysis, with the former emphasizing the role of social norms in maintaining social order and the latter treating social order only as a surface phenomenon, actually containing social conflicts behind the seemingly stable social state. Given that various social conflicts are hidden in the social structure, and based on the divergence of interests, the outbreak of social conflicts is only a matter sooner or later, and it is inevitable. In the theory of social conflict, it can be divided into two different points of view. One is, as aforementioned, that social conflicts exist objectively in reality and will not be transferred by individual subjective wishes. From this point of view, the emergence and outbreak of social conflicts are objective and inevitable results. However, another view holds that the objective existence of social conflicts does not mean that social conflicts must be manifested in the way of outbreak. As long as institutional arrangements (such as the bargaining system between employers and employees) are properly made and relevant interest groups are willing to accept a mutually acceptable approach, social conflict may be mediated through channels within the system. This is the so-called “institutionalization of social conflicts”, which is not only a set of social analysis, but also widely used in many European countries, and has become an important theoretical basis for the practice of mediating industrial conflicts. The success of the “institutionalization of industrial conflicts” depends on various factors, including the degree of organization of labors’ organizations, the acceptance of the negotiation process and its content by both sides, and the formation of consensus in the negotiation process. Interestingly, the idea of “institutionalizing social conflicts” actually introduces social consensus into the analysis of social conflicts: Social conflicts do not necessarily need to be manifested in the form of conflicts if consensus and norms can be established regarding the roles of the parties (as negotiating opponents, bargaining with each other, intending to make compromises, not enemies of life-or-death struggles) and negotiation procedures. Of course, the key lies in how to build consensus and negotiate. This is left to empirical research to help us understand under what conditions conflicts can be mediated and under what circumstances social conflicts will become inevitable. vii

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Foreword

Professor Jieren Hu’s research object is neither labor-capital relations nor industrial conflicts, but various social conflicts in contemporary cities. This is very important to understand the importance of social phenomena in today’s Chinese society. She has been making in-depth observation, interviews and questionnaires in the Shanghai community for many years, to understand and analyze how community people’s mediation organizations mediate collective disputes as intermediaries between community and government. In her analysis, she proposed the concept of “state-led social pluralism” to illustrate the observed community conditions. Her analysis can be said to inherit the debates on social consensus and social conflict mentioned earlier and to further understand the possibility of mediation community conflict. Her analysis attempts to break the dual opposition between the state and society. Starting with the role of people’s mediation organizations and the specific operation process, she points out the possible forms of interaction between the state and society in China at present. As an innovative analytical concept, “state-led social pluralism” still has a lot to do to deepen it. However, its importance lies in breaking through the discussion of whether consensus or conflict is the essence of the theory, but based on empirical research, it carefully analyses the interaction between the state and society, how consensus and conflict grow and fall to a certain extent. I am convinced that Professor Hu’s analysis and opinions can not only arouse discussion in academia but also have reference value for policy research and practical urban governance work. Hong Kong, China April 2016

Tai-lok Lui

Tai-lok Lui Vice President of the Education University of Hong Kong and the Chair Professor of Hong Kong Studies with the Department of Asian and Policy Studies (APS) of the Faculty of Liberal Arts and Social Sciences (FLASS).

Contents

1 Urban Community Disputes and Mechanism of Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Research Topic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Existing Theoretical Interpretation of Urban Community Disputes and Their Resolution Mechanisms in China . . . . . . . . . . . . . . 4 Analysis Framework and Possible Academic Significance . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9 14 18

2 Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Case Study and Community Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Research Design . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Field Work and Ethics and Morality of Research . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

23 23 24 27 32 33

3 Conflict Theory and Conflict Handling Model . . . . . . . . . . . . . . . . . . . . . 1 Theory of Social Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Practical Research and Problems of Social Conflict . . . . . . . . . . . . . . . 3 Social Conflict and Theory of State-Society Relations . . . . . . . . . . . . . 4 Double Concern Theory and Conflict Management Model of Blake and Mouton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Characteristics and Model of Collective Dispute Resolution . . . . . . . . 6 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

35 35 40 49

4 Historical Background and Development Process of Dispute Resolution in China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Background and Historical Development of Mediation . . . . . . . . 2 The History and Current Situation of People’s Mediation in Shanghai . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A New Mechanism for Resolving Group Disputes: Lin Yue People’s Mediation Studio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 1 6

56 61 69 69 77 77 83 89 ix

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Contents

4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 5 Dispute Resolution in Urban Community: Three Cases . . . . . . . . . . . . 1 Suppression and Resistance: Qingfeng Community Incident . . . . . . . . 2 The “Blockhouse” Movement at the End of the Century . . . . . . . . . . . 3 Backdoor Storm of Fumanlou Restaurant . . . . . . . . . . . . . . . . . . . . . . . . 4 Analysis on the Differences of Dispute Handling Ways Among Different Levels of Social Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 State-Society Cooperation in Dispute Resolution of Urban Community . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Operational Logic and Institutional Basis of People’s Mediation Studio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 State-Led Social Pluralism and Its Institutional Foundation . . . . . . . . . 3 Action Orientation of State and Social Organizations . . . . . . . . . . . . . . 4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Methods and Skills of Social Organization Mediating Disputes . . . . . 1 The Social Function and Significance of Social Organization’s Intervention in Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Basic Norms of Social Organization Mediation . . . . . . . . . . . . . . . . . . . 3 The Ways and Skills of Social Organization Mediation . . . . . . . . . . . . 4 Limitations and Problems of Mediation . . . . . . . . . . . . . . . . . . . . . . . . . 5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Reality: Making Harmonious Community Work . . . . . . . . . . . . . . . . . . 1 State-Led Social Pluralism and Its Practice . . . . . . . . . . . . . . . . . . . . . . . 2 Suggestion: The Necessity of Diversified Dispute Resolution Mechanism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Dispute Resolution from Government-Led to Social Autonomy . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

103 103 111 129 134 144 144 147 147 157 163 169 170 173 173 175 182 186 188 189 191 191 199 202 206

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209 Appendix A: An Outline of Interview on Community Conflict Survey in Shanghai . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 Appendix B: List of Respondents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 Appendix C: People’s Mediation Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 217 Appendix D: Measures for Administration of Government Purchasing Services (Interim) . . . . . . . . . . . . . . . . . . . . . . . . . . 219

Contents

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Appendix E: People’s Mediation Law of the People’s Republic of China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227 Appendix F: Questionnaire on Harmonious Community Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233 Appendix G: Provisional Regulations on the Registration and Administration of Civil Non-enterprise Units . . . . . . . . 241 Appendix H: Interim Measures for People’s Mediation of Tianjin Social Organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249 Appendix I: Organizational Regulations of Urban Subdistrict Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255 Appendix J: Organizational Regulations of the People’s Mediation Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257 Appendix K: Provisions of the Supreme People’s Court on Trial of Civil Cases Involving People’s Mediation Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265 Appendix L: Provisional Regulations of the People’s Republic of China on Notarization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269 Epilogue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277

About the Author

Prof. Jieren Hu is an associate professor in the Law School of Tongji University and a visiting professor in the Faculty of Law and Sociology at Qinghai Normal University. She is also the visiting scholar in the Center for China Studies at UC Berkeley, U.S.A. She got her Ph.D. at the Chinese University of Hong Kong in 2009. Her major researches focus on mediation, dispute resolution and social governance in China. She has published quite a number of books, journal papers, and book chapters, including those in Asian Survey, Journal of Contemporary China, China Information, China: An International Journal etc. She is the “double-thousand” expert nominated by the State Council of China, the special mediator of the Second Intermediary Court in Shanghai, and the member of Hong Kong and Macao Law Association and Shanghai Law Society.

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Chapter 1

Urban Community Disputes and Mechanism of Dispute Resolution

Contradictions are widespread, and socialist society is also full of contradictions. It is these contradictions that promote the continuous development of socialist society. The basic contradictions of socialist society lead to the emergence and development of political, economic and cultural contradictions. Because the productive forces and production relations of socialist society are basically compatible, such contradictions can be adjusted and solved through the socialist system itself. The solution of this contradiction is also the fundamental solution of other contradictions. —Zedong Mao (Volume 7 of Mao Zedong’s Collection, People’s Publishing House, 1999)

1 Introduction Nowadays, with the rapid development of economy, the world tends to be more and more polarized. Social conflicts and contradictions occur frequently. Harmony has become a goal that is universally pursued but difficult to achieve. China is entering a critical stage of economic and social development and a period of social transformation. The state has gradually evolved from a “general society” characterized by the monopoly of almost all resources by the government, low degree of social differentiation and high homogeneity before the reform into a “diversified society” characterized by multiple stakeholders and high social differentiation (Li et al. 2005). The most common, profound and prominent feature of this period is the modernization of human life, social structure and social relations, which is clearly reflected in the continuous, intense and profound differentiation and changes caused by modernization on social structure and social relations. It runs through the changes of culture and values, government and society, and the contrastive changes in status and social stability and development. This period is characterized by the dual-track system, dynamic nature and rapid differentiation and reorganization of social structure. The dramatic changes in economic life have created a huge impact on people’s spiritual, psychological and even moral values, lifestyles and other aspects. Social life presents © Shanghai People’s Publishing House 2020 J. Hu, Disputes Resolution in Urban Communities in Contemporary China, https://doi.org/10.1007/978-981-15-8644-6_1

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1 Urban Community Disputes and Mechanism of Dispute Resolution

a variety of scenes. The social phenomena of positive and negative, social progress and social decadence, positive and negative effects are mixed up, which makes it difficult for people to adapt to and distinguish from each other, and leads to confusion and fear in their hearts. During this period, many social problems can easily be concentrated. If not handled properly, they will lead to stagnation of social and economic development or even more serious situation (Luo 1995). In this process, the traditional pattern of interests has been constantly broken and rebuilt. In a sense, reform is a process of readjusting the pattern of interests (Sun et al. 1994; Li 1995). As a result, the position of different social groups in the pattern of social interests is constantly changing, and this change will inevitably have an important impact on people’s behavior and mentality. The groups (or called vested interest groups) who benefit from the change of the pattern of interests will have a higher degree of trust in the existing social system. When confronted with conflicts of interest, they will try their best to avoid excessive conflict and tend to adopt rational and institutionalized methods to solve problems. Those groups whose interests are damaged in the change of interest pattern are relatively lack of trust in the current social system. They may adopt some more radical ways to solve their own conflicts of interest, which may become potential root groups of social conflicts. Therefore, in a society with diversified interests, the public’s subjective class identity (such as self-evaluation as a lower class) is more explanatory than the objective class attribution (such as the actual poverty level) to the social conflict consciousness and action intention (Li et al. 2005). China is in a critical stage of economic and social development and a period of social transformation, due to various problems such as industrial restructuring, social restructuring and interest redistribution, social competition and differentiation are accelerating rapidly. The conflicts and crises in public safety, health, transportation, energy and municipal administration are highlighted. The number of collective/mass incidents (quntixing shijian) in China’s society is increasing markedly. In particular, the imbalance of the interests of the vulnerable groups in society can easily lead to their psychological imbalance. When their interests are damaged and their pursuits cannot be met, they may resort to extreme violence and trigger various kinds of mass security incidents, including violent terrorist attacks, economic security incidents and public security crises, causing tremendous losses and adverse effects to the state and society.1 The new social threats mainly focus on employment, the gap between the rich and the poor, and social security.

1 The

losses caused by public emergencies in China are alarming every year. In 2004, 5.61 million emergencies occurred in China, causing 210,000 deaths and 1.75 million injuries. The direct economic losses caused by natural disasters, accident disasters and social security incidents exceeded 455 billion yuan, see “Zhongguo de weiji guanli jizhi” (China’s Crisis Management Mechanism), 23 September 2005, https://big5.gov.cn/gate/big5/www.gov.cn/yjgl/2005-09/23/content_6 9182.htm, accessed 27 July 2019. According to the 2005 Social Blue Book, the number of mass incidents involving more than 100 people in China increased from 10,000 to 60,000 in 1993–2003, and the number of participants increased from 730,000 to about 3.07 million, with an average annual increase of 17%.

1 Introduction

3

First of all, after basically solving the problem of food and clothing, China’s biggest problem at present is employment. The unemployment rate has reached its fifth peak since 1950. Although the registered urban unemployment rate is only 3– 4%, the actual urban unemployment rate is more than 10%. Among the unemployed, there are about 7 million registered unemployed persons in cities and towns, more than 10 million laid-off persons and unemployed persons without statistics, 1.2–1.5 million unemployed urban migrant workers, and more than 800,000 unemployed university and professional graduates (Li et al. 2005: 15). The social risk of China’s employment problem lies in its connection with the huge peasant population. The massive transfer of rural labor force has put great pressure on the society.2 Secondly, the gap between rich and poor leads to an increase in social risk. In recent years, China’s income gap has maintained a trend of rapid expansion. From the early 1980s, the Gini coefficient of China’s income gap was 0.281. By 2005, China’s Gini coefficient had approached 0.47. According to the general view of economics, this index exceeded 0.4, which means that China has entered a state of alert. Once exceeding 0.6, it indicates that China’s income gap will be on the alert. The trend of social instability is increasing.3 The biggest gap is between urban and rural areas. In 2008, Sun Zhengcai, Minister of Agriculture, in his report to the Standing Committee of the National People’s Congress on promoting stable income growth of farmers, pointed out that in recent years, the income gap between urban and rural residents has been widening. In 2007, the per capita net income of rural residents increased by 9.5%, the highest increase since 1985. However, the income ratio of urban and rural residents has expanded to 3.33:1, with an absolute gap of 9,646 yuan (4,140 yuan per capita net income of rural residents and 13,786 yuan per capita net income of urban residents), which is also the biggest gap since the reform and opening up.4 The reasons for the widening income gap between urban and rural areas are not only the primitive factors such as depriving agricultural surplus by industrialization strategy before the reform, but also the factors that the urban and rural areas continue to attach importance to the cities and despise the countryside because of the inequality in the ownership of public assets. This unreasonable income gap not only affects social stability, but also seriously undermines the sustainable 2 In April 2006, the State Council released the “Research Report on China’s Peasant Workers” which

shows that there are 200 million peasant workers in China who have transferred their labor force. Among them, the number of peasant workers is about 120 million. To absorb the surplus agricultural labor force by urbanization has become the main form of the transfer of surplus agricultural labor force. 3 “Woguo nongcun pinfu chaju chao shibei, jinni xishu bijin jingjiexian” (The Gap between the rich and the poor in China’s rural areas approaching the warning line with a ten-fold Gini coefficient), 22 August 2012, https://finance.china.com.cn/news/gnjj/20120822/965905.shtml, accessed 4 August 2019. 4 “Cong gaige kaifang 30 nian nongmin shouru zengzhang kan nongcun gaige chengxiao” (Viewing the effectiveness of rural reform from the income growth of farmers in the 30 years of reform and opening-up), 5 October 2008, https://politics.people.com.cn/BIG5/1026/8129460.html, and “Lianghui shuzi: nongcun jumin renjun chun shouru zengjiadao 4140 yuan” (Figures of the two sessions: per capita net income of rural residents increased to 4140 yuan), 5 March 2008, https:// www.china.com.cn/aboutchina/txt/2008-03/05/content_11615099.htm, accessed 7 August 2019.

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development of macro-economy. The objective gfap between the rich and the poor is only one aspect of social risk. In the process of reconstructing the concept of social change, people’s understanding of social justice is also biased. The people at the bottom attribute the gap between the rich and the poor to corruption, incompetent and lazy officials and so on, and thus, the social risk is also greatly increased. Thirdly, China’s social security system is imperfect, causing social conflicts and increasing social risks. China’s social security coverage is quite low, the form of social security is single, and the implementation of social security policies in some areas is not effective. Rural households mainly depend on family self-insurance and social mutual assistance to against their life risks since they cannot enjoy social security at all. With the awakening and increase of their civic awareness, they will ask for their rights of social security benefits, especially in the areas of pension, medical care, employment, and children’s schooling, which will challenge the existing social security system. Moreover, the grim situation of China’s employment and the rapid aging increase the burden of social security sharply. In addition, in recent years, despite the intensification of anti-corruption efforts in China, serious official corruption still exists. And new characteristics are presented with the continuous development of the socialist market economy. Firstly, the amount of corruption is huge. Secondly, the number of people involved in corruption is astonishing. From “tigers” to “flies”, there is a phenomenon of “pulling a radish and bringing out a pit of mud”. Thirdly, the position of officials involved in the cases is very high; that is, the administrative position of corrupt officials is getting higher and higher. Some officials indulge in pleasure, dereliction of duty, or embezzle state property. This seriously undermines the people’s impression of public officials and leaders, damages official-citizen relations, and causes huge losses to the Chinese Communist Party (CCP) and state.5 The combination of these direct and indirect factors will lead to the outbreak of social disputes, which will inevitably bring tremendous impact on China’s current social construction and economic development, seriously affect social stability and people’s daily life and public security, and may bring unconceivable serious consequences (Yu 2008). The government needs to give more freedom and space to the society to participate in decision-making and dispute resolution. The effective operation of the market can help to alleviate social grievances, smooth the channels of communication between officials and the people, and effectively solve social problems. Only in this way can it be possible to maintain a good social order and realize the ideal of a harmonious society. Social problems such as unfair distribution, corruption of officials, food safety and the gap between the rich and the poor affect people’s psychological state and social mood. Accumulation and ineffective solution of these problems would easily lead to public grievances and extreme actions, and make social conflicts manifest in different forms and degrees. Collective disputes and incidents are particularly 5 “Congyan

congkuai chachu, zhongquan daji qunzhong shenbian fubai wenti” (Strictly and promptly investigate and deal with corruption around the masses), 24 June 2019, https://www. sohu.com/a/322531907_100144867, accessed 20 July 2019.

1 Introduction

5

prominent in China during the transitional period.6 They have become a major factor affecting social stability and also the biggest difficulty and challenge to the Partystate to prevent, control and resolve in the process of promoting social harmony. Some scholars and experts predict that China has entered a period of frequent crises (Chen 2008). Generally speaking, social conflicts in China are mainly structural and interest ones, i.e. caused by the transformation of political system and interest disputes. And they are quite often collective and sudden, and in extreme cases, they may be highly destructive. Moreover, they are very complicated and repetitive so that it is very difficult to deal with them. Given its complexity and intractability, it needs the cooperation of all sectors of society to solve them. This, however, becomes an urgent task for governments at all levels to improve the comprehensive response capacity of national crisis management and conflict resolution. If social conflicts cannot be effectively resolved, they will lead to various and serious social problems, which will inevitably cause great harm to society, affect economic construction and social stability, and bring unconceivable serious consequences to the country and people. Therefore, the establishment and maintenance of a good social order and a harmonious society are increasingly valued by the government and the people. In fact, to achieve this goal, studying and understanding the nature of social conflicts and exploring effective dispute resolution mechanisms are two key points because only by resolving disputes effectively can we maintain the development of society and achieve harmony and order (Blumberg 1998). This is also the ideal and pursuit of governments all over the world in the process of development.7 Yet a harmonious society is not a society without disputes. The false appearance of superficial harmony and the conflicts hidden in the society may lead to greater disturbances and crises, and even affect the stability of the whole regime. Harmonious society is a society that can accommodate different opinions and has an effective mechanism for resolving contradictions. When faced with social disputes, the government and administrative organs are not helpless or unable to cope with them, but can play the role of mediator and arbitrator of conflicts, and have the legal mechanism to resolve disputes and defuse civil grievances effectively (Sun 2011). At the same time, a harmonious society should have effective and appropriate dispute prevention and resolution mechanisms. Both of the government and society have the ability to solve disputes reasonably, timely and effectively, and the incidence of

6 Collective

disputesrefer to public hostility between groups and interference with each other’s activities; collective incidents refer to a couple of groups caused by certain social contradictions, specific groups or non-specific majority temporarily formed together, in the form of contradictions among the people, through a large-scale gathering without legal basis. Collective activities usually occur in the means of language or physical conflicts, or expression of citizens’ appeals and opinions, or their direct strive for and safeguard their own interests that have a negative and significant impact on social order and stability (Zhou 2008: 37). 7 The definition of harmonious society has been put forward at the Fourth Plenary Session of the 16th CPC Central Committee in 2004. This concept was developed in the report of the 16th CPC National Congress on building a well-off society in an all-round way in 2002.

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large-scale mass incidents is relatively low and not too severe. Thus it is a stable society with a general balance of interests (Xu 2008: 13).8 Hence, what kind of conflicts exist in today’s Chinese society? How should those collective disputes which have a significant impact on society be handled? What are the advantages and problems of litigation and non-litigation dispute resolution? What is the role of social organizations in dispute resolution? If there any change in the current mediation organizations compared with the past and if yes, it reflects what relationship between the state and society in China now? This book aims to study the issue of dispute resolution in urban communities in contemporary China, and tries to explore a diversified dispute resolution mechanism through empirical investigation and case analysis, with a view to effectively resolving disputes and achieving a harmonious society.

2 Research Topic Before the Third Plenary Session of the Eleventh Central Committee in 1978 which explicitly put forward the reform and opening-up policy, China was under the planned economic system with a strong state control over society. At the same time, strict control has also been exercised on infrastructure construction projects such as land acquisition and supply, urban reconstruction and relocation, and tax policies. However, a strong government is not conducive to social development because local governments at all levels are more likely to penetrate power into the whole society without effective supervision of government behavior. Government officials can also overstretch their power by lacking restraint without opponents (Zhang 2008). This is mainly due to the worship of rulers and authority and the expectation of subordinate obedience in China’s political system and culture. Ordinary people can seldom influence the policy decisions of governments and leaders, and many people themselves are unwilling to take part in political affairs actively. Some people, especially those who experienced the Cultural Revolution during 1966–1976 even avoid contact with politics subjectively or take a very cautious attitude towards politics. Yet with the development of market economy and globalization, the Chinese government began to give society more freedom and space, gradually relax the control of social organizations, and transfer part of the governance power to society, especially more and more non-governmental organizations and social organizations began to intervene in and participate in government and social affairs (Chan 2005; Whiting 1991; Ma 2002). After the 1980s, we can see the emergence of a new consortium of local governments and third sectors (both domestic and international), and start to participate in small-scale development projects, public welfare and public 8 There

is much controversy about the effectiveness of dispute resolution in the existing literaturebecause the validity can be measured from two aspects at the same time: on the one hand, whether the demands of the parties involved in the dispute have been satisfied and the degree of satisfaction with the results of dispute settlement; on the other hand, the possibility that the settled disputes need to be coordinated again.

2 Research Topic

7

sector decision-making (Foster 2001). The emergence of social forces is mainly due to the limited capacity of the state to bear and solve huge social disputes and social problems, coupled with the huge economic and political burden, the government needs the assistance of the third sector and social organizations to deal with social problems and take management responsibilities. Therefore, the Chinese government began to promote and encourage social organizations to participate in the management of social affairs. Through the construction of a pluralistic social management pattern of “Party Committee leadership, government responsibility, mass participation”, it tries to achieve the goal of innovation of social management system and “small government, large society”.9 Before China’s reform and opening-up, China implemented planned economic system and citizens’ social and economic activities were all arranged by their working unit (danwei). Urban citizens all belonged to their danwei, with their division of housing, registration of marriage, divorce mediation, children entrance, hospitalization, job transfer and welfare distribution etc. all managed by their working unit. After the reform and opening-up, the market economy has increased the employment and choice opportunities of the people in danwei, and decreased the citizens’ dependence on the unit, gradually changing from the unit person (danweiren) to the social person (shehuiren) (Dai 2000). The center of personal life has shifted from working place to living place, and community has become an important place to carry the emotional communication and interaction of urban residents. If we classify Chinese communities according to structural functionalism, they can be divided into rural communities and urban communities. The urban community can be divided into the following ones: 1. the municipal district; 2. the district under the jurisdiction of the subdistrict office, i.e. we call Street Office (SO, jiedao banshichu); 3. the district functional community which is smaller than the SO and larger than the district under the jurisdiction of the Residents’ Committee (RC, jumin weiyuanhui); 4. the RC after the scale adjustment. This book focuses on urban communities, which includes the latter two situations. In this book, urban community refers to the community where most people engage in industry, commerce and other agricultural labor. It is a relatively independent social community composed of people with a specific lifestyle and sense of belonging in a certain area. Community residents will encounter various social disputes in their daily social life. Some problems can be solved by people themselves, some need to seek the help of third parties or through mediation to decide the right and wrong, so as to reach an agreement; some may enter the judicial process to solve the problem through judicial judgment. So what collective disputes do the residents in urban communities usually encounter or participate in? What means do residents choose to solve the problem 9 In March 2012, the Ministry of Civil Affairs promulgated the Implementation Plan of Social Orga-

nizations Participating in Social Services Projects with the Central Financial Support in order to mobilize social organizations to participate in social services and play an active role of social organizations in innovating social management and building a harmonious socialist society, see Yongshou Cai, “Jiaqiang shehui jianshe shi yixiang zhongda er jinpo de zhanlue renwu” (Strengthening social construction is an important and urgent strategic task), 19 November 2012, https://theory.people. com.cn/BIG5/n/2012/1119/c40537-19619103.html, accessed 1 August 2019.

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when they encounter disputes? What is the effect? What obstacles will judicial channels and traditional neighborhood committee mediation encounter in resolving group disputes? Why does the state and government now advocate people’s mediation studios operating in a civil and non-enterprise way (minban feiqiye) to solve disputes of all kinds? How will the People’s Mediation Studio handle different group disputes? What is the relationship between mediation agencies and government agencies? The change of its organizational form reflects the increase or decrease of the penetration of state power into residents’ daily life, and whether the government’s control over society has been strengthened or weakened? How satisfied are the residents with the results of the settlement of disputes mediated by the studio? What is the significance of resolving community disputes for building a harmonious society? In recent years, the analysis of state-social relations has shifted from state organizations, political parties or bureaucratic agencies to the interaction between specific actors and institutions in grassroots society (Wang 1999). Thus, the central research question of this book is how the settlement of urban community disputes affects the interaction and relationship between the state and social organizations. The research topics can be subdivided into the following three aspects: (1) What is the current status of community disputes in Shanghai and how is the effect of dispute settlement (2) What are the institutional bases, operational models and manifestations of the state-led diversified dispute resolution mechanism in urban communities where social problems are concentrated? (3) Faced with the conflict between residents and the government, how effective are litigation and non-litigation methods in resolving disputes? How can community mediation organizations as intermediaries handle and resolve disputes? How can mediation organizations establish relationships with a broader political system? How does state power penetrate into the community through community mediation organizations and institutional arrangements? What kind of cooperation mode does the process of dispute resolution embody between the state and social organizations? These three major issues concern the three-dimensional relationship between the government, community mediation agencies and the public. To answer these questions, this book attempts to: (1) Analyze the status quo, handling methods and results of collective disputes in Shanghai community in recent years. (2) Explore whether the establishment of people’s mediation organizations in Shanghai community is another manifestation of the state’s efforts to enhance the capacity of social organizations, advocate the diversified development of social organizations, or to strengthen social control? (3) Study the relationship between the new people’s mediation studio set up in the form of civil non-enterprise and judicial, administrative and other community organizations, its internal operating mechanism (organizational structure, inhouse operating mechanism, function exertion, ways and intensity of communication with the government, the amount of economic resources, etc.) and

2 Research Topic

9

dispute resolution through specific case studies. In this way, we can see the current situation and changes of the relationship between the state and social organizations. (4) Connect the multi-forces of community dispute resolution with each other and explore how to effectively solve community disputes through the multi-forces dispute resolution mechanism to make the harmonious community operate.

3 The Existing Theoretical Interpretation of Urban Community Disputes and Their Resolution Mechanisms in China (I) Conflict and Conflict Resolution The connotation of social conflict derives from the needs of classical philosophers Plato and Aristotle for the establishment of social order. James Schellenberg (1996: 89) also thinks that all sectors of society must operate in harmony in order to minimize social conflicts. Rahim and Magner (1992) define conflict as the result of contradictions, differences or inconsistent interactions within or between social entities (Ting-Toomey 1985). Considers conflict as a form of intense disharmony (pressure or confrontation) between two or independent parties within or among individuals based on inconsistent goals, needs, aspirations and attitudes. While Thomas (1992) argues that conflict is a process which occurs when one party finds that the other party has a negative or possible negative impact on what it is concerned about. In Chinese culture, it is not difficult to find many synonyms with similar meanings, such as “differences”, “disputes”, “contradictions” or “problems”, which are often used to describe conflicts. This book adopts Schellenberg’s definition of social conflict: social conflict refers to the opposition between individuals and collectives based on competition for interests, different identities and attitudes (Schellenberg 1996). It is worth noting that in this concept, although violence is also one of the means to strive for special interests, social conflict does not only refer to those situations of violence or antagonism. This concept also includes both non-personal and unconscious conflicting situations (such as the conflict of market competitiveness). Therefore, conflicts are not confined to events with strong emotional colors. According to Schellenberg’s definition of conflict, this book divides conflicts into three categories according to interests, identities and attitudes, while this book mainly focuses on conflicts of interest. The study of conflict can be divided into macro and micro-study. Macro-level research focuses on large-scale conflicts, such as wars and revolutions, while microlevel research focuses more on disputes between people or neighborhoods. Terms such as “peace studies” (or peace and conflict studies, peace sciences) are often used to refer to large-scale conflict studies. In small-scale studies, scholars use conflict resolution or conflict management more to describe, and pay more attention to the

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conflict coordination process between people and within groups. This book focuses on micro-level conflicts, focusing on disputes within urban communities and how to solve them. Conflict resolution can also be defined from macro and micro perspectives. Macroconflict resolution refers to the reduction of social conflicts by consciously handling disputes. In this broad definition, conflict resolution may be achieved through subjective and deliberate efforts or other means (such as environmental change, the influence of third parties, the victory of one party, etc.). From a micro perspective, conflict resolution is seen as a conscious process of dealing with problems by both parties or different parties (Schellenberg 1996). This book adopts micro-concept of conflict resolution, specifically refers to conflict resolution as dispute settlement. So “conflict management” or “conflict regulation” means to reduce or control conflicts within a certain range. In Chinese urban communities, conflict resolution refers to the process of reducing disputes by means of self-handling or resorting to third-party mediation agencies. Researchers’ attitudes are very important when studying conflicts. Because in general, people tend to view conflicts negatively, that is, conflicts are always associated with things that are bad, undesirable, cause tension and discontent, and are not conducive to normal communication between people and organizations, and destroy their relations; and the resolution of conflicts is generally considered good. But in fact, conflict is also an inevitable component of all societies, and its importance should be recognized and valued by us. Social conflicts can promote the emergence of new ideas and methods, stimulate decision-making and social change, and help the government to recognize social problems and make appropriate adjustments to improve official-citizen relations. In addition, intra-team conflict helps to enhance the identity of team relationship and improve team performance, and to form personal identity. Many other improvements that are common in daily life are actually the result of positive effects of conflict. Therefore, conflicts are now regarded as legitimate, inevitable and a positive indicator of effective organizational management. Conflict has a certain function on organizational management, because it can promote the adoption of effective problem-solving methods, or better achieve the goals of individuals, subsystems or organizations (Rahim 1986: 197). Therefore, as long as conflicts within a limited scope are properly handled and utilized, they are necessary and beneficial for maintaining and improving the efficiency of individuals, groups and organizations. At the same time, conflict can also play a more constructive and functional role. For example, conflict resolution can enhance the understanding of the differences between people’s behavior and thinking (Kelman 1990; Mitchell and Banks 1996). On the contrary, when there is no conflict in the world, society will stagnate, decision-making will fail, and efficiency will not be improved. Therefore, moderate conflict is necessary to achieve and maintain the best organizational efficiency (Rahim and Bonoma 1979). Researchers should adopt a neutral attitude, assuming that conflict itself is not good or bad, but necessary for the whole human society. It is better to study conflict and understanding how to deal with and resolve conflicts when they occur objectively than with a single moral standard.

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(II) Community, Community Conflict and Community Harmony The concept of community can be traced back to the concept put forward by German sociologist Ferdinand Tönnies in his book Community and Society (Gemeinshaftt und Gesellshaft) in the nineteenth century. It is believed that community is a large group of social groups or social organizations gathered in a certain field and formed in a life which is related to each other. It is the most basic content of social organisms and an epitome of macro society. There are huge resource advantages hidden in community and it has many functions, such as economy, socialization, psychological support and influence, social control and social participation (Tönnies 1957). So what is a community? There are more than 140 definitions of community by sociologists, but their understanding of the basic elements of community is consistent. Scholars generally believe that a community should include a certain number of people, a certain area, a certain scale of facilities, a certain characteristic culture and a certain type of organization. Community is the place of social life composed of people living in a certain area. Western sociologists such as Durkheim (1964) and Simmel (1955) use community as a research method to look at moral, legal, economic and social development from the perspective of community. Robert Park, one of the representatives of the Chicago School, emphasizes that competition is the dominant process of community life and the main factor affecting the urban spatial structure, which determines the spatial form and location function of the interconnected parts of the community environment. The pursuit of commercial interests in cities leads to competition for valuable land, which dominates and determines the development of urban space and its functions, and thus forms a symbiotic relationship based on the interdependence of different groups. Moreover, competition exists at the community level, and the symbiotic relationship developed from competition is also based on the community. This symbiotic phenomenon, in turn, is the basis for the consistency of social norms. Therefore, the community is also the foundation of soci ety (Park 1952). Community is often used by Chinese and Western scholars to analyze conflicts, social integration, democratic development and civic participation (Tocqueville 1969; Putnam 1993; Mills 1956, 1959; Dahl 1961; Diamant 2001; Fei 1986; Wu 1988; Wang 2000). In the study of urban social conflict and movement, Rex and Moore (1967) believe that there exists a network relationship among organizations in the community, and that any collectivity is based on different modes and forms of organization in the social system. Other scholars believe that the concept of community should include the basis of social conflict and the foundation of collective actions, and this is the result of government agencies to strengthen the power control over urban area (Janowitz 1952; Suttles 1972) or different groups to compete for material resources (interests) or symbolic resources (political power) (Glaser 1994). Manuel Castells firstly put forward the concept and theory of urban social movement in the book of The City and the Grassroots: A Cross-Cultural Theory of Urban Social Movement in 1983, and the importance of community as urban social movement was emphasized. In the subsequent development, urban social movement and mainstream social movement theories (such as resource mobilization theory and political process

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theory) became two important theoretical schools. American scholar (Coleman 1957) believes that the root causes of community conflict are derived from three aspects: economic disputes, political disputes and conflict of values. In some communities, these three disputes may reignite the already calmed but deep-rooted sense of antagonism among groups. In such cases, disputes are more likely to lead to conflicts. He stressed that incidents leading to social conflicts would reinforce each other and that such a vicious circle must be stopped at the beginning of the conflict. On the basis of summing up and criticizing the development track of western social movements and revolutionary theories in the twentieth century, Zhao (2005, 2006) put forward three perspectives to study social movements and revolutions, namely, social changes, the structure and structural behavior of the state and society, and the discourse of social movements (changes, structures, discourses). This has laid an important theoretical foundation for the current study of social movements in China. In the first half of the twentieth century, the transformation of urban social control mode in China mainly evolved from traditional community to statutory community (municipal level). In the second half of the twentieth century, it experienced a process of the negation of negation, i.e. it changed from statutory community to unit system, and then it began to return from unit system to community system (Wu 2002; Hua 2000). In recent years, the focus of urban reform and grassroots governance has shifted more and more to community construction. Community has gradually replaced units and become an important place for governments at all levels and their agencies, commercial organizations and citizens to compete for interests (Shi 2003). The importance of urban community lies in: Firstly, it is the link between the state and society. As a self-governing organization at grassroots level in the city, the RC plays an important role in community governance. It is neither the government nor the government’s agency, but its relationship with the government is closely linked. Secondly, it is the social community at the grassroots level of the city. Under the planned economic system, the Residents’ Committees (RCs) lack vitality and cohesion. Apart from the elderly living in the community, the working objects are the residents without working units, and their functions are very thin. But given the economic transition and social transformation, modern community e is different. In addition to the original work object, unit people gradually become social people and community people, floating population also continue to enter the community. So the community structure is becoming more and more complex. In addition, a large number of functions of social management, social services and social security have been stripped from the government and units, and are undertaken by the community. The function of the community has been greatly improved, and the content and scope of community work have been greatly expanded, which makes it take on the task of maintaining social stability and order at the micro level, and become the center of coordination and cohesion of all parties. Therefore, it is a “small society” in the city. Thirdly, community is the intersection of various social conflicts. Given the rapid economic development in China, all kinds of social disputes and problems are highlighted along with the change of interest pattern and social stratum. The gap between

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the rich and the poor leads to the imbalance in people’s minds, with discontent caused by damaged interests, mental tension caused by work pressure and the change of values and lifestyles. At the same time, it also brings a lot of maladjustment to the people. Frequent population flow also makes urban management more and more difficult. Although the factors affecting social stability are reflected in society, they actually occur in the community. Community conflicts are mainly based on disputes over the ownership and management of community shared resources. The consequences of these conflicts include the loss and benefit of the interests of all parties. Some disputes escalate and deteriorate because of prolonged delay. The consequences are the increase of violent conflicts and the anomie of communities (Chen and Liu 2003). Fourthly, the community is also the theatre of grassroots democratic political construction. It is the starting point for residents from participating in the management of community affairs to participating in the management of social affairs and state affairs. Initiative and active community participation of residents symbolizes residents’ recognition and strong sense of belonging to the community, and indicates that residents can share the interests of the community as well as assume community responsibilities. A vibrant, creative and efficient community is a community with relatively high participation in community affairs. Therefore, harmonious community refers to healthy and mature community, and community and government, community and enterprise, community and society, community and ecology, community and the residents are all in a benign interaction and coordinated relations. As the basic unit of society, the harmony of community is directly related to the harmonious development of the whole society. If the construction of a harmonious society is a “ten thousand tall buildings on the ground” (wanzhang gaolou pingdi qi), then the establishment of a harmonious community is an important cornerstone of its support. Even though community conflicts are related to social changes in China, the increase and intensification of conflicts and the failure to solve them effectively are also related to structural factors such as inadequate transfer of government power, lack of rule of law and imperfect marketization. Yet it is undeniable that disputes between residents and community organizations, residents and local governments or residents and residents caused by residents’ dissatisfaction with community governance in property, public security, environment and demolition have resulted in residents expressing different political opinions, their raising awareness of rights protection and fostering public spirit in the process of experiencing community conflicts (Min 2010). Therefore, community conflict is of great significance to urban development in China, especially to promote the cultivation of citizens’ quality and the interdependence of organizations as well as the contribution of community conflict to the cultivation of public awareness (Chan and Nesbitt-Larking 1995; Tjosvold et al. 2003; He 2009).

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4 Analysis Framework and Possible Academic Significance Many problems in China’s social transformation and economic development have not been properly solved for a long time and disputes and conflicts have worsened, which is related to the deficiencies of the judicial system and the lack of effective relief channels. Given the corruption and malfeasance of some government officials, the vulnerable groups cannot achieve their rights and interests through the channels of the system. Once the conflicts intensify, it is easy to aggravate the public’s hostility towards the government and push them to take radical action against the government (Ying 2001). Therefore, institutional defects and structural contradictions are the fundamental causes of current urban group disputes in China. However, the government’s pursuit of the goal of social governance—maintaining stability and harmony—conflicts with the tension in the real system, which leads to many uncertainties in the actual work of preventing and resolving disputes. In terms of means of settlement, the state takes maintaining stability as the main goal of solving conflicts. Pressure and coercion are commonly used methods in dealing with collective disputes. Normally, the direct purpose of local governments is to end disputes and prevent larger-scale collective action while paying less attention to and genuinely solving the root causes of conflicts. Of course, repression is mostly used to deal with major group disputes. As for personal disputes, many studies also show that in a society influenced by Confucian culture, the process of dispute resolution pays more attention to human emotions, and the maintenance of face and long-term relationship is as important as the solution of problems. Therefore, smoothing and avoidance are commonly used means (Leung 1987, 1988; Ting-Toomey et al. 1991; Ting-Toomey 1988; Tse et al. 1994; Kilmann and Thomas 1978). In European and American countries, conflicts are usually private events, and mediation is based on the choice of individual actions of both parties. However, in Chinese society, the number of disputes and the results of settlement are part of and of key importance in the criteria of assessment of local governments and administrative organs. Therefore, the government will intervene actively before disputes are intensified. Whether the parties are willing to mediate or not, they will solve the problem by persuading them to accept mediation. When people encounter disputes, they tend to solve problems through the assistance and mediation of government agencies. Chinese residents regard it as an inescapable responsibility of the government to solve their problems (Wall and Blum 1991: 9). This book focuses on the study of urban community disputes and their resolution mechanism. It places disputes resolution in the current social environment of our country to explore the changes of state-social relations, and provides a theoretical framework and analytical perspective for relevant research fields. In particular, the way to deal with collective disputes is directly related to the realization of the goal of a harmonious society. Mass incidents are a political term and concept with Chinese characteristics for collective conflicts in China (Zhu 2009).10 Current researches 10 In

the Opinions on the Work of Actively Preventing and Appropriately Handling Mass Incidents, formulated by the General Office of the Central Committee of the CCP in 2004, mass incidents

4 Analysis Framework and Possible Academic Significance Individual

Local government

(such disputes

level family

disputes, neighborhood

Community Conflict

disputes,

Mediation Agency disputes

Achieving

contract Effective disputes

disputes, etc.)

Lin Yue People's Mediation Studio

as

15

resolution Collective

level

mechanism

(such as collective

Community Solidarity/ Harmonious Society

petition, collective Community Residents

litigation, etc.)

Fig. 1 The theoretical framework of community dispute research in Shanghai

on collective action and grassroots resistance in China pay more attention to the conflicts in rural grassroots society (Ying 2001; O’Brien and Li 1997; Yu 2003, 2004, 2008). These studies hold that the emergence of “political opportunity structure”, the tolerance of the government to a certain extent, the emergence of group event organizers, the support of community members, the growth of citizens’ awareness of safeguarding rights and the promotion of collective memory are the important factors leading to the rise of group events. Yu Jianrong also argues that the peasants’ struggle for safeguarding their rights caused by “oppressive reaction” and the transformation from “resistance by law” (yifa kangzheng) to “resistance with law” (yifa kangzheng) (Yu 2004).11 Many foreign researchers also pay attention to conflict management in rural daily life in the investigation of social conflicts in China (Scott 1985, 1990, 1998; Thireau and Hua 2003; O’Brien 1996; Read 2003). This book focuses on a central question and three major issues, highlighting the current diversified dispute resolution mechanism to resolve disputes in urban communities to reflect the tripartite interaction between the government, the public and other social organizations. It also combines relevant sociological theory to analyze the status and mechanism of community disputes. The overall framework of the study is shown in Fig. 1. are described as “incidents caused by conflicts among the people, when the people think their rights and interests are infringed, they express their wishes and demands to the relevant organs or agencies through illegal gathering and blockade, etc. It also includes the activities of aggregation and gathering in the process of preparation and formation. 11 “Resistance by law” means “policy-based struggle”, which is a political activity in which farmers actively use national laws and central policies to safeguard their political rights and economic interests from infringement by local governments and local officials. Farmers are the object of appeal, and the main body identified by the protestors to solve the problem is their superiors, rather than directly confronting their object of complaint. The main protesting way they adopt is to appeal; “resistance with law” is that the peasants take the law as the weapon of struggle, directly challenge the object of struggle against the main body, resort to the “legislator” as the supplement, and the protestors take themselves as their own. As the main body to achieve the goal of the struggle, it adopts petitions, propaganda, obstruction, litigation and retreat, sit-in demonstrations and other means of action. In other words, compared with the “resistance by law” strategy, “resistance with law” uses more forms of intense collective action.

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The first chapter of this book mainly reviews and discusses the existing theories of urban community disputes and their settlement mechanism in China. On the basis of reflection and criticism, the second chapter will elaborate on the research design and the choice of specific cases. Chapter 3 introduces conflict theory and conflict resolution model, and elaborates on Blake and Mouton’s dual concern theory and conflict resolution measurement model to explain the differences in conflict resolution between different types of countries and societies and to explain the reality of urban conflict resolution in China. It emphasizes the characteristics and differences of Chinese people’s mediation organizations in urban communities when dealing with interest conflict among different groups and the influencing factors behind them. Chapter 4, after comparing the effectiveness of litigation and non-litigation dispute resolution, reviews the development history of Chinese people’s mediation and analyses the current situation of people’s mediation in Shanghai’s social transformation period. This part focuses on introducing the embedding work network of people’s mediation organizations and its dispute settlement methods which operates in the form of civil non-enterprise as intermediaries between community and grassroots government. Chapter 5 focuses on the specific cases of collective disputes in Shanghai community and the process of solving them, and through the “Lin Yue People’s Mediation Studio” to resolve collective disputes at different levels to show the differences in the way of dealing with conflicts under different circumstances and the interaction between the state and society. Chapter 6, based on case studies, discusses the operation logic of the People’s Mediation Studio and the institutional basis of the state-led social pluralism, and applies the theory of “state-led social pluralism” to explain the current cooperation mode between the Chinese government and social organizations, i.e., the cooperative relationship based on government purchasing services. This relationship reflects the orientation of the state and society under the pressure system, and the judicial dilemma and institutional constraints faced in reality. The seventh chapter focuses on the methods and skills of social organizations in dispute resolution, with particular emphasis on the importance and reality of mediation in China’s urban communities, providing reference and suggestions for social organizations to settle disputes. Chapter 8 discusses the significance of this book’s research in putting forward a possible mode for harmonious community operation, exploring the benign interaction between the state and society through a new perspective of urban community conflict, encouraging diversified dispute resolution methods to break through litigation and non-litigation dilemmas, and raising a future community dispute resolution and governance model from government-led to social self-reliance. Dispute resolution and the construction of a harmonious society are issues of great concern to scholars and practitioners. In recent years, there have been a lot of studies on social disputes and their resolution in both Western and domestic academic circles. Although the existing theories of social conflicts have classified conflicts differently to explore their causes, mechanisms and ways of resolving conflicts and many studies have talked about how legal institutions intervene in social disputes

4 Analysis Framework and Possible Academic Significance

17

from a judicial perspective, not excluding mediation and settlement, but the existing research on China’s state-social relations is more from the perspective of the rise of non-governmental organizations and the development of civil society, and less from the perspective of resolving collective disputes to analyze the interaction, cooperation and changes of relationship between the state and social organizations. Therefore, on the theoretical level, this book intends to apply conflict theory and dispute resolution model to specific cases of urban dispute resolution, in order to perspective the cooperation between the state and social organizations and the changes in their relations. That is, to explore the government’s power control over social organizations through dispute settlement between the people and the government, and how to interact with social organizations to alleviate social grievances and achieve harmonious development of society. At present, various conflicts in Chinese society including violent incidents and sudden public security crises are frequent, especially disputes between the government and the public caused by defects in political system, flawed judiciary, violation of residents’ rights by the government over its authority and other issues, which have a serious negative impact on the maintenance of community order and the construction of a harmonious society. The study of this issue will be a good as well as important window to see the changes of state-society relations. The theoretical development of state-social relations has gone through the mainstream viewpoints from “national line”, “social line” to “state-centered”, “societycentered” to “state-in-society interaction”. In recent years, the concept of “state-led civil society” has emerged to explain the relationship between China’s state and society. On the basis of explaining and criticizing the above theories, combining with the reality of current Chinese society and the analysis of specific cases, the book holds that in contemporary China, state-social relations are neither state-centered, because the state has actively advocated the development of social organizations, and has given society a lot of space to play its own role. Nor is it centered on society, because the state still has strong control and dominance over society, but presents a state-led social pluralism mode of operation. This interpretation can better describe and show the current relationship between the Chinese government and society, the status quo of the establishment and operation of social organizations and the future development trend of social organizations. This book also uses Black and Merton’s conflict resolution model (1964) to analyze the reality of group conflict resolution in China’s state-dominated pluralistic society. Although there have been many studies using the five conflict handling methods in this model to measure conflict handling (Holt and DeVore 2005; Kabanoff 1987; Chow and Ding 2002; Freeman and Browne 2004; Rahim 1983; Kilmann and Thomas 1977), this model is applied to the actual situation of Chinese society at the micro level. This book is a new attempt in this field. At the practical level, this book explains the changes of the relationship between the state and social organizations in China’s urban areas through the analysis of specific cases in Shanghai communities, with a view to providing an effective mechanism for better cooperation between the state and social organizations at the community level to resolve community disputes. At the same time, it opens up another

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perspective for the study of the relationship between the state and society, expecting more scholars to pay attention to the evolution of social organizations and dispute resolution and the relationship between the state and society in the future. To some extent, this book tries to provide theoretical and practical reference for the development of Chinese social organizations, and suggests that the government should relax its control over social organizations, give them more space to operate independently, and encourage NGOs and groups to participate in the settlement of community and civil disputes. To a great extent, it helps to promote the development and maturity of NGOs. In addition, this study also provides empirical research data for the government on how to transform its functions to cope with the current situation of social conflicts and better build a harmonious society, and puts forward some effective suggestions to solve community contradictions, thus making the operation of a harmonious society a reality.

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Wu, F. (2002). China’s changing urban governance in the transition towards a more market oriented economy. Urban Studies, 39(7), 1071–1093. Wu, W. (1988). Daoyan (Introduction). In X. Fei & T. Wang (Eds.), Hualanyao Shehui Zuzhi (Hualanyao Social Organization) (pp. 4–7). Jiangsu People’s Publishing House. Xu, X. (2008) Maixiang Shehiu Hexie de Jiufen Jiejue (Dispute Resolution Towards Social Harmony). Beijing: China Procuratorial Press. Ying, X. (2001). Dahe Yimin Shangfang de Gushi: Cong “Taoge Shuofa” Dao “Baiping Lishun” (The Story of the Appeal of the Migrants in the Great River: From “Asking for a Reply” to “Settling Down”). Beijing: Sanlian Bookstore. Yu, J. (2003). Nongmin youzuzhi kangzheng jiqi zhengzhi fengxian: Hunan H Xian diaocha (Organized resistance of farmers and its political risks: Hunan H County survey). Zhanlue yu Guanli (Strategy and Management) (3), 1–16. Yu, J. (2004). Dangqian nongmin weiquan huodong de yige jieshi kuangjia (An interpretative framework of current peasant rights defense activities). Shehuixue Yanjiu (Sociological Research) (2), 49–55. Yu, J. (2008). Dangian nongcun huanjing wuran chongtu de zhuyao tezheng ji duice (Main characteristics and countermeasures of current rural environmental pollution conflicts). Shijie Huanjing (World Environment) (1), 58–59. Zhang, J. (2008). Marketization and democracy in China. London, New York: Routledge. Zhao, D. (2005). Xifang shehiu yundong yu geming fazhan zhi shuping: zhanzai zhongguo de jiaodu sikao (Review of the development of Western social movement and revolutionary theory: Thinking from the perspective of China). Shehuixue Yanjiu (Sociological Research) (1), 168–209. Zhao, D. (2006). Jiti xingdong: dabianche lilun he xingshi shehuixue fangfa (Collective action, free-rider theory and formal Sociology). Shehuixue Yanjiu (Sociological Research) (1), 1–12. Zhou, B. (2008). Shehui Zhuanxingqi Quntixing Shijian Yufang, Chuzhi Gongzuo Fanglue (Strategies for the Prevention and Settlement of Mass Incidents in the Period of Social Transition). Beijing: People’s Public Security University Press. Zhu, L. (2009). Zhongguo shehui fengxian jiexi: quntixing shijian de shehui chongtu xingzhi (An analysis of social risk in China-The nature of social conflict in mass events). Xuehai (Academia Bimestrie) (1), 69–78.

Chapter 2

Methodology

1 Introduction Since the reform and opening up, great changes have taken place in Chinese communities. Community is the basic foundation of society and building a harmonious community is also the cornerstone of building a harmonious society. The construction of a harmonious society requires the coordination of interests among members of society as far as possible, and the resolution of various social disputes arising from conflicts of interests so as to maintain the stability and unity of the whole society. With the advancement and development of democracy and legal system in our country, the role of community in preventing and resolving disputes is becoming more and more important, especially in controlling and resolving mass incidents in the transitional period. Behind them are complex contradictions of interests and diversified demands of interests. When conflicts cannot be resolved in a timely and effective way in the community and citizens’ demands cannot be reasonably satisfied, latent social disputes will lead to fierce social conflicts when they accumulate to a certain extent, which will become a major hidden danger hindering social political stability and economic development. The primary goal of this book is to explore the current state-society relationship by investigating the mechanism of dispute resolution in urban communities and its impact, in conjunction with the task of “innovating and effectively preventing and resolving the system of social conflicts”, which was specifically pointed out in the Decision of the Central Committee of the CCP on Several Major Issues Concerning the Comprehensive Deepening of Reform. And it tries to find more effective ways to solve the current group disputes so as to achieve the goal of building a harmonious society. We assume that “the number of participants”, “the degree of violence” and “the relationship with the government” in disputes are the three important factors that affect and determine the severity of conflicts, and then explore the differences in the ways of handling and resolving conflicts at different levels between the government and mediation agencies.

© Shanghai People’s Publishing House 2020 J. Hu, Disputes Resolution in Urban Communities in Contemporary China, https://doi.org/10.1007/978-981-15-8644-6_2

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2 Methodology

Specifically, this book reflects the interaction between the various actors involved in the community disputes, the key factors affecting the result of dispute resolution, the different ways of handling different disputes as well as the influence on the operation and settlement of disputes through in-depth investigation of three cases involving the intervention of the “Lin Yue People’s Mediation Studio” in J Street, N District, Shanghai. The methodology of the study is discussed first below, followed by the selection of cases, the basic situation of the community and the design of the study. Finally, this chapter will explain the process of research and the ethics of research.

2 Case Study and Community Status This book chooses Shanghai, a city with developed economy and prominent community disputes in the Mainland of China and conducts a case study on “Lin Yue People’s Mediation Studio” in J Street, N District of this city.1 This civil non-enterprise organization, which operates in the form of government purchasing services, has signed an agreement with S Street where it is located. The SO there invests 120,000 yuan annually to purchase professional dispute mediation services provided by the studio. Thus, a non-profit organization which is driven by the government is created and plays an active role in community conflict resolution and harmonious community construction.2 Given the penetration of state power into urban communities and the participation of state forces in dispute resolution, there is a close relationship between traditional people’s mediation and administrative system. The reality is that people’s mediation is in the field of two polarities composed of the state and society. It is not entirely dependent on the state power, nor is it purely the power of spontaneous nongovernmental organizations, but strives to maintain a delicate balance between them. Therefore, people’s mediation as a way of resolving conflicts can also be used as a valid variable of examining the relationship between state and society (Peng 2003). The purpose of choosing this object and the cases is to study the background and operation mode of civil non-enterprise community people’s mediation organizations promoted by Shanghai governments at all levels, and to explore the ways and causes of dealing with collective disputes between different officials and citizens, so as to explore the state’s control over the community and the countermeasures for resolving disputes. In order to reflect the relationship between the state and society, we hope to find a more effective way to resolve group disputes, and create conditions for the operation of a harmonious community. 1 In

order to protect the object of study, the names of the people’s mediation studio and the names of the persons involved in the case are all anonymous. 2 Before 2006, there were few people’s mediation organizations operating in the form of government purchasing services, except in Beijing and Shanghai. Subsequently, people’s mediation and public security work were carried out to resolve conflicts through government purchasing services throughout the country.

2 Case Study and Community Status

25

This book mainly focuses on the conflicts and solutions of urban communities in China. Therefore, it chooses Shanghai, a developed city along the eastern coast of China. Since the reform and opening up in the 1980s, Shanghai’s economy has undergone a process of rapid development. In 2005, there were nearly 17 million permanent residents, an increase of nearly 4 million over 2000 (Shanghai Statistical Yearbook 2005). At the same time, Shanghai, as the largest financial center in China, achieved a GDP of 11.116 billion yuan in 2006, an increase of 13.3% over the previous year in terms of comparable prices, and an increase of 1.3% points over the previous year. By preliminary accounting, Shanghai’s annual gross domestic product has reached 2010.133 billion yuan in 2012, an increase of 7.5% over the previous year in terms of comparable prices.3 By 2020, the GDP of the region will reach 2746.615 billion yuan, an increase of 6.8% over the previous year in terms of comparable prices, which is higher than the 0.1% point growth rate of China’s national GDP.4 Rapid economic development has made Shanghai a typical case of integrating positive and negative results in China’s urban development. At the same time, social problems and conflicts in Shanghai’s communities are constantly emerging. With the intensification of social development and changes, it is becoming increasingly important and urgent to effectively solve social conflicts. Dispute mediators in the community also try to deal with disputes quickly and effectively, so as to satisfy the parties while solving the problems. Because only when conflicts can be effectively resolved can community harmony be truly realized. The specific research object of this book is J Street, N District, Shanghai, which is located in the west of the city center. It is a developed area in politics, economy and culture, and has convenient transportation and geographical advantages. N District covers an area of about 37.019 square kilometers and has 610,900 permanent residents by 2002.J Street has 13 communities, covering an area of 1.52 square kilometers. There are 60,000 permanent residents in the whole street, of which the elderly account for 24% (Living in N District 2004). Among the 13 communities, there are not only old urban areas, commercial housing areas, but also high-level apartments and villas, covering different income levels of residents. Therefore, it is a highly mixed community, where the rich and poor live in a corner. Some high-grade apartments are adjacent to shantytowns with aging houses. Various kinds of disputes and conflicts occur frequently, including those involving neighborhoods, marriage and family, housing, environmental pollution and other aspects. Table 1 shows the number of residents of J Street neighborhood committees and the statistical data of RCs and street participation in dispute mediation in 2006–2007. More importantly, there is a special window in J Street to receive and deal with residents’ disputes and community problems, i.e. the Lin Yue People’s Mediation Studio. This is a civil non-enterprise organization composed of people’s mediator 3 “2012 nian Shanghai guomin jingji he shehiu fazhan tongji gongbao” (Shanghai Statistical Bulletin

on National Economic and Social Development), 27 February 2013, http://www.shanghai.gov.cn/ nw2/nw2314/nw2318/nw26434/u21aw716249.html, accessed 1 August 2019. 4 “2020 nian Shanghaishi GDP paiming, Shanghaishi jingji zongliang tongji zongjie” (Shanghai GDP Ranking in 2020, Shanghai Economic Total Statistics Summary), http://m.bzrw.net/zhengf ugongzuobaogao/439655.html, accessed 2 August 2019.

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Table 1 Statistics of dispute settlement and mediation data in J Street, 2006–2007 Residents’ committees

Number of permanent residents (Persons) in J street communities

The number of disputes resolved by neighborhood committees and street mediation in recent two years

NW

4069

70

XB

7270

83

JS

5,838

91

HS

2,644

23

CJY

2,990

57

YS

3,033

110

DB

5,202

84

CX

5,149

148

WC

5,585

97

QS

6,975

278

BW

5,976

47

FS

5,352

786

LX

6,604

172

66,687

2,046

In total

Data source Social Security Office of J Street Office

Lin Yue, who has worked in the streets for decades, and a group of people with professional mediation skills to deal with community disputes and resolve conflicts. The studio has a team of experienced mediators and legal aid providers, and through the establishment of Lin Yue mediation hotline, it can quickly and effectively understand community contradictions and improve the ability to resolve conflicts and residents’ satisfaction. At the beginning of the establishment of the studio in 2004, 382 cases have been successfully dealt with, and 464 cases of various conflicts have been accepted throughout the year. Among them, 382 are elderly residents, 24 are foreign residents, 99 are from other areas of Shanghai, and 6 are from other provinces (Community Red Leaf Affection 2004). So why choose the Lin Yue People’s Mediation Studio as the main object to study its handling and settlement of community group disputes? Since the “Lin Yue People’s Mediation Studio” was registered as a civil non-enterprise organization in October 2004, it is a legitimate independent legislator. Its birth is the result of the decentralization of state power to the streets in the process of urban community construction. It has close cooperation and contact with other organizations both vertically and horizontally. The studio is embedded in the social work network5 and thus 5 Embeddedness was first proposed by Polanyi (1968) to describe the pre-capitalist period in which

economy was an organic part of society and an “embedded” economy (Polanyi 2007). Subsequently, Granovetter (1985), a representative of the network school, carried forward the idea that human purposeful action is embedded in concrete and changing social relations. The “embeddedness” here refers to the birth of the studio organizational form, which is an organizational change of the

2 Case Study and Community Status

27

it is a typical representative of the diversified development of social organizations led by the state (Fan 2004a, b, 2005).However, when confronted with different conflicts of interest, there are differences in its strategies and handling methods. Through the study of it, we can first look into the rational choice and movement strategies of the parties to the conflict in the process of resolving disputes. Secondly, it can reflect how the characteristics of collective disputes and their solutions and results are influenced by the state power under the Chinese political system, so as to study the interaction between the state and social organizations and the changes of state control over society. Therefore, from the legal point of view, people’s mediation belongs to the category of autonomy, and the people’s mediation institutions and government functional departments are interrelated, with the former under the latter’s guidance. Therefore, the operation of the social association in dispute resolution is actually a case of social self-governance. And the people’s mediation agreement signed by the mediation studios has the legal effect that ordinary non-governmental organizations do not have. It can provide legal guarantees for the results of mediation. But in practice, there is a strong administrative dependence between the studio and government departments. Sometimes, the relationship between the leader and the being led reflects the characteristics of the government-led non-governmental organization (which is called GONGO). Such a community people’s mediation studio can be used as a good point to study the interaction between the Chinese government and social organizations. In addition, Lin Yue People’s Mediation Studio is a national model and a new change of the traditional people’s mediation committees. The people’s mediation studio set up in J Street of N District is the first representative to be implemented in Shanghai. This form has been popularized in other districts of Shanghai so far. Its operation and dispute settlement mode has also been extended to other urban communities in China. It can also be used for comparative study of dispute settlement in other cities or villages in the future. This study provides a reference to examine the changes in the relationship between the state and social organizations and the development of civil non-enterprises and civil society in China.

3 Research Design The data and research materials in this book are from field work conducted in Shanghai community from 2006 to 2008, mainly including participant observation and in-depth interviews. The whole research process is divided into three stages: The first stage is to enter J Street in N District of Shanghai in 2006, to observe and understand community disputes and collect preliminary research data. The second stage is to investigate the current situation and process of community disputes in 13 communities and neighborhood committees under J Street in the traditional people’s mediation network in Shanghai. Therefore, it belongs to a kind of institutional and structural embeddedness.

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autumn of 2007 (September–November). The main aspect to study is: What kinds of disputes do Shanghai community residents encounter in their daily life? By what means? Which institutions will they turn to? What is the result of the treatment? And start to explore the Lin Yue People’s Mediation Studio, collect and grasp information of how does the studio deal with collective disputes within the community, including part of the statistical data and case allowed to be public. The third stage is to carry out participant observation and follow-up study on collective disputes in J Street in summer (June–August) 2008. Through in-depth interviews, the way and results of handling disputes in Lin Yue People’s Mediation Studio are investigated and analyzed. At the same time, open interviews were conducted with all kinds of relevant personnel involved in disputes (including community residents, street and studio staff and government officials), and a large number of relevant information and information were collected in local governments and relevant departments of SOs. Since the subject of the study involves conflicts between officials and people, it is relatively sensitive in Chinese society, so it is difficult to obtain detailed and accurate information and grasp the process, details and ideas of the case. Compared with the situation reflected by the general dispute resolution statistics, this book pays more attention to the typical cases and solutions in the urban communities in China, so as to get the details of a whole picture. In addition, Diamant, a scholar who studies community conflict and resolution in China, also emphasizes that more attention should be paid to qualitative research methods to understand the parties’ own ideas and opinions so as to avoid the influence of official intervention on the disclosure of the real situation (Diamant 2000). Therefore, based on the observation and understanding of community disputes, this book conducts open interviews with all parties involved in disputes through participating in the mediation and handling process of group disputes, in order to have a detailed and in-depth understanding and exploration of the actual community conflicts and handling methods. The typical case study was carried out in 2008 when the author conducted an internship in the Lin Yue People’s Mediation Studio as a doctoral student of the Chinese University of Hong Kong. The author made an in-depth investigation of collective disputes in communities of J Street. During this period, she also participated in some dispute mediation meetings, went deep into the community with the studio mediators to understand the situation and communicate with the residents, and interviewed and talked with all parties involved in the dispute. The interviewees were more than 70 people, mainly including two groups: official and unofficial. Official interviewees include government officials, Street leaders and mediators in workshops; unofficial ones include leaders of community organizations, activists of community movements, elites of resistance, and ordinary residents of the community.6 The selection of interviewees is based on the principle of “purposeful sampling” to extract the people and things that can provide the greatest amount of information 6 The

interview outline refers to Appendix A, Shanghai Community Conflict Investigation and Interview Outline; the interviewees refer to Appendix B, List of Respondents.

3 Research Design

29

for the solution of research problems. In open-ended interview, the interviewees are allowed to freely tell their personal experiences and ideas (Babbie 2006) instead of setting a fixed pattern. During the course of the investigation, the author emphasizes to the studio staff and residents that she is only a student and does not have any unit or special identity, so as to prevent them from excluding the author due to her being treated as an “outsider”, intellectual or affected by other concerns, which is not conducive to the understanding and analysis of the actual situation. Interviews are conducted in Shanghai dialect. The author also personally participated in two dispute mediation meetings held by the studio, and collected a large number of text, pictures and related documents about the handling of conflict cases. Residents are willing to complain to doctoral students in the hope that someone will help them fight for legitimate rights, at least for them to publicize and share their many years of experience in safeguarding their rights. The cases selected in this book arouse researchers’ interest because they represent the types of group conflicts of interest at different levels. These problems are not uncommon in urban communities. They are not only the root causes of disputes in one or two communities, but also the guidance of illegal construction, illegal construction or environmental problems. Residential areas continue to struggle. There are many other problems, such as “historically-rooted problems” (lishi yiliu wenti) which have appeared frequently in various national construction activities since 1949 (Ying 2001). Therefore, the settlement of these collective disputes and their handling process show the characteristics and nature of the conflicts of collective interests in urban communities under the leadership of the CCP. The study and comparative analysis of them are good windows for investigating the relationship between the state and urban social organizations. All the statistical data cited in this book are from official statistics, including Shanghai Statistical Yearbook, Shanghai N District Statistical Yearbook, etc. Other relevant information comes from government, Street internal information and regional newspapers and magazines, such as Living in N District, Community Red Leaf Affection—The Mediation Skill of Lin Yue, Records of Party Construction Work in Residential Areas—Flowers here are Different and Red, Liberation Daily, N District Times and so on. In reality, when collective disputes arise, whether directly related to official interests or not, the government will attach great importance to the change of events and the process of dealing with them, because mass incidents are easy to get intensified, with violence and endanger social stability and harmony. However, in the face of different severity of group conflict, there will be differences in the way of handling. Based on Xu Xin’s theoretical model of dispute movement, this book subdivides the collective conflict of interest, and explores in depth how the state handles conflicts of different degrees. In Xu (2008:178)’s theoretical model of dispute movement, he uses duration, intensity and slope to explain the phenomenon of dispute and dispute resolution. The most important concept is rake ratio, which also involves two key variables: time and intensity (Fig. 1). In this model, the horizontal axis X represents time, indicating the period of dispute occurrence, development and calming. Based on time, disputes can be divided into

30 Fig. 1 Theoretical model of dispute movement (Xu 2008:178)

2 Methodology Intensity Maximum

Time

long, medium-term and short-term ones. Longitudinal axis Y represents intensity and is used to describe the degree of confrontation or tension in a conflict. According to intensity, disputes can be divided into intense disputes, moderate disputes and minor disputes. There are differences in the time of occurrence and development of disputes, and the time of accumulation of dissatisfaction before disputes. Given that it is difficult to make an absolute distinction, the time of “long, medium, short” and the intensity of disputes are relatively speaking, depending on the time and place. Dispute resolution time and dispute mitigation time are also different. Generally speaking, the sooner the dispute is mitigated, the better. But dispute resolution is not necessarily the case. Sometimes, various factors need to be considered, and it may need to be deliberately cooled or delayed for a period of time to make the parties satisfied with the results of the settlement. In reality, however, disputes that break out rapidly may be extremely intense, such as sudden mass violence, while long-term conflicts may be less intense, such as disputes between neighbors and couples, often manifested as “quarrels” or “bedside fights” at the end of the bed. Therefore, time and intensity alone cannot represent the severity of the conflict, they can only be used as important variables affecting the dispute movement. In order to describe the pattern of intensity changing with time, the author introduces a third concept: rake ratio, that is, the change of intensity of disputes per unit time, in the model is the inclination of the curve. The greater the slope, the greater the change of the intensity of disputes at the same time, which shows that disputes escalate rapidly or ease rapidly. According to the urgency of disputes escalation (slope), disputes can be divided into progressive disputes and explosive disputes. According to the urgency of dispute mitigation, disputes can be divided into two categories: gradual mitigation and rapid mitigation (Xu 2008:179). The above theoretical model well explains the process of dispute escalation and dispute mitigation. Although not all of the disputes and dispute resolution may not be explained by this model in real life, as long as they are adjusted accordingly,

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this concise model can basically explain all kinds of complex situations of dispute movement. However, if we want to distinguish the types of group disputes according to this model and look at the attitude and means of dealing with different conflicts of the state, we neglect the other three important factors that affect the severity of conflicts: the number of participants, the degree of violence and the relationship with the government. In the process of social transformation in China, facing the huge number of collective conflicts has become the greatest challenge and threat of the Chinese government. How have the conflicts in urban communities been handled and solved? How much intervention does the state have in community conflict? Is conflict resolution the same for different levels? If there are differences, what are the differences? Considering the number of participants, the degree of violence and the relationship with the government, this book designs a set of measurement indicators. As the number of participants directly affects the impact of conflict on social order and political stability, according to the General Emergency Plan for Public Emergencies issued by the State Council,7 when distinguishing between general, larger, major and especially significant mass incidents, the number of participants shall be limited to less than 100, 100–1000, 1000–3000 and more than 3000, respectively. In general mass incidents, the participants gather in important places and key areas and their behavior is obviously excessive, or they bring out chain reactions that have caused cross-regional and cross-industry influence on social stability, or even casualties, the mass incidents with the death toll of less than 3 people and the injured toll of less than 10 people will also be classified as larger mass incidents although the number of participants is less than 100. Therefore, the degree of violence is also an important indicator of the severity of conflict, that is, the use of force in conflict, resulting in varying degrees of personal injury and bloodshed, can be divided into strong, medium and weak. The term “relationship with the government” refers to the degree to which a party to a conflict (usually the respondent) has a close relationship with the government. This will greatly affect the importance of the government and the means used to resolve conflicts, but in any case, as long as it poses a threat to social stability and harmony, the government will pay great attention to it. Based on this, this book designs a three-dimensional classification map of the severity of collective conflict. At the same time, it is quantified according to the in order to calculate the level of conflict. As can be seen from Fig. 2, X-axis represents the number of participants, 1 represents 0–100 (including 100), 2 represents 100–1000 (excluding 100 but including 1000), 3 represents more than 1000; Y-axis represents the degree of violence, 0 represents the degree of non-violence, 1 indicates the degree of violence is weak, 2 represents the degree of moderate, and 3 represents the degree of strong; Z-axis represents the relationship with the government, 0 means that it has nothing to do with the government, 1 means that it has little to do with the

7 “Guojia

tufa gonggong shijian zongti yingji yu’an quanwen” (National emergency response plan for public emergencies (full text)), 8 January 2006, http://politics.people.com.cn/GB/14538/400 7544.html, accessed 4 August 2019.

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Fig. 2 Classification of seriousness of collective interest disputes

government, 2 means that it has more to do with the government, and 3 means that it is closely related to the government, thus the score of each point can be obtained. The severity of conflict is determined by cumulative scores: conflict with a score of 0–3 (including 3 points) is defined as general conflict, i.e. group conflict with less than 100 participants, weak violence and less relationship with the government; conflict with a score of 3–6 (excluding 3 points but including 6 points) is defined as moderate impulse. Suddenly, a group conflict with 100–1000 participants, moderate violence and more relationship with the government, and a conflict with a score of 6–9 (excluding 6 points but including 9 points) is defined as a serious conflict, that is, a group conflict with more than 1000 participants, strong violence and close relationship with the government.

4 Field Work and Ethics and Morality of Research In fact, the study of social conflict, whether on the individual level of interpersonal disputes or on the collective level of mass incidents, is relatively sensitive because they have always been regarded as signs of “instability” in China. Owing to the whitewash of local governance and the fear of “social stability”, many government officials are reluctant to talk about collective action in the locality to unfamiliar “outsiders”. Ordinary citizens are generally unwilling to disclose information and information about relevant incidents because they are afraid of being prosecuted by local governments. Since the summer of 2006, the author has been conducting internship in J SO for her doctoral dissertation research. During the two years’ field work, she gradually became acquainted with local officials and ordinary residents,

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so that some of them regarded her as “their friends and the insider”, and naturally talked to her about this community movement, which had a great influence in the locality but was seldom explored by “outsiders”. The information and interview records obtained in this book are entirely based on the voluntary cooperation of the researcher. Any content and information are absolutely confidential and only used for research purposes. In view of the need to keep the real name and privacy of the individuals involved in the relevant organizations and mass incidents in the book, all the specific areas, streets and neighborhood committees except Shanghai are anonymously expressed in English letters, while the people’s mediation studio in J Street has changed its alias to “Lin Yue People’s Mediation Studio”. The author follows the requirements of local governments, streets and studio, after the completion of the manuscript, published book would be sent to them. The purpose is only to provide reference for practitioners, to learn from the experience of theoretical and practical research, and to welcome suggestions for this book. Both of the author and the interviewees are interacted in an open, voluntary and friendly atmosphere.

References Babbie, E. (2006). The practice of social research. Belmont, VA: Wadsworth. Community Red Leaf Affection-Lin Yue Mediation Work Law (2004). (ed. by Shanghai N District Judicial Bureau and Shanghai N District J Street Office). Diamant, N. J. (August 2000). Conflict and conflict resolution in China: Beyond mediation-centered approaches. Journal of Conflict Resolution, 44(4), 523–46. Fan, Y. (2004a) “Tiaojie de chonggou: Yi fayuan tiaojie gaige wei zhongdian” (Reconstruction of mediation: Focusing on court mediation reform), Fazhi yu Shehui Fazhan (Legal System and Social Development), (2 and 3), 113–125. Fan, Y. (2004b). “Jiji de changshi, kunnan de tansuo” (Positive attempt, difficult exploration). Fangyuan, 7, 18. Fan, Y. (2005). “Shehui zhuanxing zhong de renmin tiaojie zhidu: Yi Shanghaishi N Qu renmin tiaojie zuzhi gaige de jingyan wei shidian” (People’s mediation system in social transition: From the perspective of the experience of the reform of people’s mediation organizations in N District of Shanghai). Zhongguo Sifa (China Judiciary), 10, 55–62. Granovetter, M. (1985). Economic action and social structure: The problem of embeddedness. American Journal of Sociology, 191, 481–510. Living in N District (2004). (Information Office of Shanghai Municipal Government, Propaganda Department of Shanghai N District Committee). Peng, B. (2003). State cntrol and community governance: A case study of community mediation in Shanghai. Fudan Zhengzhixue Pinglun (Fudan Political Review), 2, 218–239. Polanyi, K. (1968). Primitive, archaic and modern economies: essays of karl polanyi. Boston: Beacon Press. Polanyi, K. (2007).The great transition: The political and economic origin of our times (G. Feng, & L. Yang, Trans.) Hangzhou: Zhejiang People’s Publishing House, 2007) Shanghai Statistical Yearbook (2005) [SSB] (Shanghai Statistical Bureau).

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Xu, X. (2008). “Jiufen yundong de lilun kuangjia” (The theoretical framework of dispute movement), Collected Papers of the Symposium on Harmonious Community Construction: Property Rights and Good Governance, sponsored by Beijing Renmin University and the Center for Harmonious Community Development (GOCO), 177–191. Ying, X. (2001). Dahe Yimin Shangfang de Gushi: Cong “Taoge Shuofa” Dao “Baiping Lishun” (The Story of the Appeal of the Migrants in the Great River: From “Asking for A Comment” to “Straightening Out”. Beijing: Sanlian Bookstore.

Chapter 3

Conflict Theory and Conflict Handling Model

This chapter mainly reviews the theory of social conflict, the study of community disputes and their resolution, and the theory of the relationship between the state and society. On this basis, it combs and criticizes previous studies, trying to explore a framework that can better explain and analyze the current social disputes and practical problems in China.

1 Theory of Social Conflict The definition of conflict and conflict resolution has been briefly analyzed in the first chapter. This chapter mainly reviews the existing theories of conflict resolution and combines with Chinese literatures to analyze the current situation of social conflict in China. According to Schellenberg’s (1996) classification of conflict and conflict resolution studies in the 20th century, there are four main theoretical directions: (1) Personal characteristics theory looks at social conflict from the perspective of the individual nature of conflict. (2) Social process theory regards conflict as a process of social interaction between individuals or groups, and tries to generalize the essence of this process. (3) Social structure theory holds that conflict is a product of social formation and organizational interaction. (4) Orthodox theory understands social conflicts from logical and mathematical perspectives. Among them, the orthodox theory is to use mathematical formulas and game theory to study conflicts. It mainly measures the size of conflicts by means of numbers and quantification, analyses the strategies of all parties in conflict of interest handling and how to best cooperate to achieve conflict resolution. Since this book does not study conflicts and community disputes from a mathematical point of view, it will focus on the first three theoretical directions, especially the construction and dialogue of conflict theory by the important representatives of structural-functional school, which provide a great reference and guidance for this book on how the state and social organizations interact to solve community disputes. © Shanghai People’s Publishing House 2020 J. Hu, Disputes Resolution in Urban Communities in Contemporary China, https://doi.org/10.1007/978-981-15-8644-6_3

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Firstly, Sigmund Freud, the founder of psychoanalysis, is the representative of the theory of personal characteristics in the theory of social conflict. The concept of conflict runs through the whole theory, and there are conflicts among its internal elements, whether in the theory of consciousness structure or in the theory of psychological structure. In Freud’s theory, the concept of conflict first appeared in the book Study on Hysteria (1895), co-authored by Freud and Josef Breue, in which Freud attributed the emergence of hysteria to the conflicting knots of two incompatible concepts within the mind. He believes that the contradiction between social requirements and individual behavior cannot be called “conflict”, nor can it lead to neurosis. Only the conflict of ideas within the mind can lead to neurosis. For example, when a prisoner’s sexual behavior is prohibited, he may feel frustrated or plan to resist, but he will not develop neurosis. But if a person stops sexual assault because of guilt or guilt, it may lead to neurosis. Of course, guilt or guilt comes from society, but this social requirement has been internalized into the internal needs of individuals. Secondly, the theory of personal characteristics holds that radicalism and conflict originate from human beings themselves, which is a natural choice of behavioral tendencies and the result of excessive frustration. To solve conflicts, it is difficult to change the individual’s physiological condition, but only through social learning process to control and reduce psychological frustration, thereby reducing conflicts and strengthening the basis of conflict resolution. Thirdly, the theory of social process of conflict does not regard conflict and its resolution as originating from the intrinsic quality of individuals, nor as the product of social structure, but as a social process. Social process theory holds that many potential conflicts can be solved automatically through non-individual economic and social markets. The market can deal with many conflicts of economic interests, but the market mechanism is not a vacuum, but closely related to the social form and mechanism, which is largely restricted and influenced by the existing power relations. In addition to the negative impact, conflicts have many positive effects and it is difficult to completely solve them. In many cases, conflict resolution faces a lot of difficulties and challenges, and may only be able to turn to possible mediation by improving the situation. There is no doubt that the views of K. Marx, M. Weber and G. Simmel are the root of conflict theory. But it is R. Dahrendorf and Lewis Coser who really construct and carry forward the complete system of conflict theory. The core concept of social structure theory is class struggle. As early as in the Communist Manifesto, Marx and Engels (1848/1955) claimed that the history of all existing societies is the history of class struggle. Marx believed that, throughout human history, class struggle is the core factor of historical and social changes, and also the key to understanding the current society. Class concept is the basic concept of Marx’s social conflict theory. Weber (1997) holds that social stratification is based not only on economic property and power, but also on the following three criteria: firstly, wealth or power as the basis of class; secondly, hereditary or professional prestige; and thirdly, political power is the basis for the formation of political parties and interest groups. Weber emphasizes that besides the economic basis, other non-economic factors have an impact on the hierarchical system of modern society, and many important

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social systems (including economic systems) will also cause social changes. He admits that social conflicts cause social changes, but why can society still operate despite many conflicts? He argues that there are three foundations of legitimate authority: first, legitimate authority, based on formal rules and systems; second, traditional authority, based on traditional ideas and customs; and third, charismatic authority. It is formed by the personal charm of the leader. Weber believes that the source of power is not only influenced by class, but also by authority, which needs social recognition and endowment. Weber’s description of class and identity group established a theoretical tradition outside of Marx for the discussion of class issues in the future. Its influence can almost be said to have formed a trend of Weber school, which is different from economic determinism, Althusserian School and Lukacs tradition. On the other hand, it criticizes and interprets Marx’s theory of class and class conflict (Li 2002). As a Neo-Marxist, Darrendorf inherited Marx’s conflict theory and absorbed Weber’s theory of authority and power to establish his class and conflict theory. Darrendorf pays attention to the formation of conflict and its influencing factors. The similarity with Marx is that he also believes that social change originates from the difference of social structure. The internal structure of society determines the types of conflict and the way to deal with it. Conflict itself also promotes social change. However, although he agrees that class is the key basis of structural conflict, he believes that all kinds of social groups may also be the basis of social conflict, not only those based on economic basis. He divided social groups into quasi groups and explicit groups (Dahrendorf 1959). “Quasi-group” refers to the group whose interests are determined by the roles of the ruling class and the ruling class and are not perceived by the people’s consciousness, that is, the combination of class consciousness. When the objective interests determined by the fixed role status become obvious and known, the group becomes the “explicit group”, that is, the group organized with clear interest requirements and objectives. In the “obvious group” stage, the potential interest requirements of the “quasi-group” period become a clearly stated struggle program or ideology. Therefore, when groups change from “quasi-group” to “explicit group”, conflicts really come into being. In Class and Class Conflict in Industrial Society (1959), Darrendorf maintains that social organizations are not seeking a balanced social system but a coercive coordination complex. Different positions within social organizations have different authority and power. The unequal distribution of authority inherent in the social structure divides the society into two opposing quasi-groups, namely, the dominant and the governed. Under certain conditions, quasi-group organizations are manifested as obvious interest groups, and as collective actors, they engage in open group conflicts, which leads to the redistribution of authority and power within social organizations, and the society tends to be stable and harmonious temporarily. But the redistribution of authority is also a process of institutionalization of new dominant and governed roles. The crisis of conflict lurks in harmony. Once the time is ripe, members of society will reorganize and enter another round of conflict for power. Social reality is a cycle of conflict and harmony, and the dialectics of power and resistance is the driving force

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of history. Darrendorf’s thought is of great significance to the development of social conflict theory, but although he expanded the social basis of conflict on the basis of Marx, he has not proved why the confrontation and struggle between groups in the “quasi-group” stage is not a conflict. Especially when the interests are not realized, as long as there is a real form of conflict, it should be regarded as the emergence and formation of conflict. If we neglect the existence of this situation, it will make the theory lack of realistic basis and appear inexplicable. When American sociologists distinguish competition from conflict as a basic form of society, European scholars emphasize the continuity of conflict and other social processes. Simmel, a German philosopher and sociologist in the early 20th century, was one of the representatives. In his Conflict (1908/1955), he emphasized how all social organizations depend on cooperation and conflict to operate. Later, Lewis Coser, an American sociologist, criticized not only the neglect of structural-functional theory of social conflict, but also the over-emphasis of “Left” conflict theorists on the outcome of social conflict, and actively explored the theory of functional conflict. He published successively such books as Social Conflict Theory, Re-discussing Social Conflict Research, Structure and Conflict, and Self in Social Structure, which laid the foundation for its theoretical development. Coser accepted Simmel’s theory of social organism and first used the term “conflict theory” in his book The Function of Social Conflict (1956). He opposed the onesided view of American sociologist Parsons that social conflict was destructive. He believed that the external conflict could enhance the internal integration of a group, or a means to balance and maintain social operation. Coser defines conflict as a struggle between values, beliefs, and the distribution of scarce status, power and resources, in which one side aims to neutralize, harm or eliminate the other. In Coser’s interpretation of conflict, the root of conflict can be attributed to material conflict and non-material conflict. Material conflicts arise from the uneven distribution of scarce status, power and resources; immaterial conflicts arise from the inconsistency of values and beliefs. Coser attaches great importance to the non-material factors, because people’s disappointment about the uneven distribution of material resources belongs to the psychological reflection, which can ultimately be attributed to the scope of non-material causes. Coser classifies conflicts and focuses on three types of conflicts: real and unrealistic conflicts, primary and secondary group conflicts, internal and external conflicts. Like Weber, a German sociologist, Coser emphasizes that the elimination of the legitimacy of the existing unequal distribution system is a prerequisite for triggering conflicts. For the interpretation of legitimacy dissolution, Coser pointed out that in the face of uneven distribution of scarce material resources, people were first aroused psychologically and emotionally, from questioning the rationality of unequal distribution to denying the legitimacy of its existence; therefore, people’s sense of relative deprivation and injustice is growing. When there is no channel or unobstructed channel to release discontent, conflict is more likely to arise when people’s desire to move upwards is hindered. In this regard, Coser explained that the cause of the conflict is the uneven distribution of social remuneration and people’s disappointment. The elimination of the legitimacy of the distribution system is the key inducing factor.

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The functional school of conflict emphasizes the “positive” function of conflict. Based on Simmel’s proposition that social conflict is a basic form of social process, Coser extensively explores the function of social conflict in the establishment and maintenance of groups, and clearly points out that in some cases, social conflict can promote social integration and prevent society. The “positive” functions of system rigidity and social organization adaptability enhancement are as follows. First, the theme of social conflict, if not involving basic values, beliefs and so on, will have a positive function of social conflict. Second, the social structure of conflict. In a flexible social structure, by arranging institutionalized “exits” for conflicts and adjusting the structure of power relations between conflicting parties, the social system can be re-integrated and the goal of progressive social change can be achieved (Coser 1956). For the interpretation of this situation, Coser’s most striking proposition is that frequent and low-intensity conflicts have a certain “positive” function since they can make people rethink and reorganize their behavior, change the rules and means of “tension”, alleviate the normative regulation of conflict relations, release tension and even hostility through reasonable channels, so as to avoid extreme actions. In this case, the parties involved in the conflict can reasonably analyze the reality of the problem, clearly express their interests and objectives, bargain with each other, so as to reach a compromise, which helps to improve the degree of collaboration and cooperation among social groups. As a result, it not only promotes the parties to reach consensus but also improves the degree of flexibility and coordination within the social system and the ability to adapt to the external environment. How to control the above specific situation and give full play to the social utility of the “positive” function of conflict lies in the construction of a mechanism to integrate the interests of social conflicts. Safety valve theory is a very important theoretical contribution of functionalist conflict theory. Safety valve is a safe mechanism of social operation. Coser believes that hostility is not equal to conflict. If hostility can be vented through appropriate ways, it will not lead to conflict. Just like excess steam in boiler is discharged through safety valve without explosion, it is not only beneficial to the situation. The maintenance of social structure is also conducive to the healthy operation and coordinated development of society. In the book The Functions of Social Conflict, Coser cites many examples to illustrate: the primitive people’s restrained revenge system; the elimination of sexual taboos and avoidance during Carnival in pre-literary society; and the prevailing struggle to solve private hatred in Western society. Safety valve theory has obvious characteristics of social psychology. It emphasizes the role of eliminating psychological tension, releasing discontent and even hostility in resolving social conflicts. Its mechanism is scapegoat mechanism, that is, social tension can be released not only to the original hatred target, but also to the alternative target. Coser noticed that the more rigid the social structure, the more important the safety valve mechanism is. He emphasized that the safety valve mechanism must be institutionalized in the social structure. He believed that the society should release all kinds of social tensions through legal and institutionalized mechanisms to avoid the eventual emergence of catastrophic conflicts, so that the social system could be in a balanced and harmonious status.

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Of course, although social conflicts have dual functions, it is undeniable that any social conflicts will impact the existing system or order, and then trigger social shocks. Therefore, to reduce social tension and resolve social contradictions, we should see the process of conflict and harmonious cycle in social reality, and the dialectics of power and resistance is the driving force of history (Dahrendorf 1959: 254). Social order is maintained by various social organizations in a certain position in the system of social power relations. Competition for scarce resources such as power and authority is the main cause of social conflicts and changes. Although Coser’s functionalist conflict theory originated from the criticism of structural-functional theory, it is not the negation of structural-functional theory but the sublation and supplement of structural-functional theory. Especially the safety valve theory provides beneficial enlightenment for governing the country and benefiting the society. Many conflicts in contemporary Chinese society, especially the confrontation between the people and the government, can be found from Coser’s theoretical explanation. However, due to the complexity and diversity of social conflicts in China, many problems between officials and citizens are related to differences in values and beliefs, but they still remain interest conflicts. In addition to the unobstructed channels of mediation, the political system and cultural concepts in dealing with conflicts still play a strong guiding role. At present, the people’s mediation studio, which is between the state and the society, provides the service of dispute mediation and settlement for the community residents besides the legal channels and the government’s petition mechanism, and makes the mediation agreement with legal effect, which is the embodiment of the theory of “safety valve” in the actual conflict resolution. Faced with a large number of complex social contradictions, the government has also forced it to transform its functions and begun to empower more social organizations to undertake the task of resolving conflicts so as to lighten the burden on the government and the courts. Social organizations also expand their living space, improve their independence, reduce the interference and influence of the government, and objectively promote the development of social forces.

2 Practical Research and Problems of Social Conflict Following many classical schools of conflict theory in the West, a large number of local studies on community conflict have emerged in recent years. There are also many studies on the penetration of state power and the control of grassroots society. The management and settlement of community conflicts are often mediated by community organizations or some regional organizations rather than by legal means in China. This is not only true in the eastern societies of Asian countries, even in American communities, the maintenance of interpersonal relationships and the establishment of community harmony are highly emphasized. Legal means are often regarded as acts that undermine long-term harmony and break community norms (Shonholtz 1987).

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Some communities with religious characteristics even now reject the state’s involvement in dispute resolution mechanisms and adopt their own ruling provisions (Berry 1987; Clark 1989; Bookchin 1990; Kemmis 1990). In recent decades, American institutions have begun to adopt Alternative Dispute Resolution (ADR) to deal with various types of conflicts in the community.1 In addition to legal channels, it has opened up a variety of dispute mediation methods, which are widely used in the world today (Clagett 2002; Dukes 1996; Fan 2000, 2003a, b). ADR focuses on mediation, arbitration and consultation through a neutral third party, on the basis of the voluntary participation of both parties to the conflict, and plays an important role in effectively resolving disputes and mitigating court proceedings (Lieberman and Henry 1986). Therefore, unofficial community dispute mediation organizations play an important role in maintaining community stability and harmony. By alleviating the contradictions between officials and citizens, the development of community democracy and autonomy and the transformation of government functions can be promoted (Dukes 1996). Community conflict is also inevitable in daily life and a normal phenomenon in interpersonal interaction. The contradiction between the people and the government is also a part of any social and political life. This is the consensus of researchers who study community conflict and conflict resolution. Some scholars even think that a democratic and free community should put conflict at the core of political life (Barber 1984; Dahl 1982).2 Existing practical studies have also shown that attempts to resolve conflicts by avoidance or repression will only lead to more intense and worsening conflicts or even more destructive ones (Alder et al. 1988). Community conflicts do have many positive functions, such as the participation of residents themselves in the struggle for public rights. In order to objectively cultivate and improve their public awareness and personal leadership (Bellman et al. 1982), it can also stimulate more effective conflict resolution methods (Cormick 1987). The findings of this book also confirm this view, because communities experiencing long-term conflict and struggle are more likely to make the government change the way it governs the community, and pay more attention to residents’ ideas and concepts in future community planning or community transformation, enhance communication and interaction with residents, and become more aware of the relationship with the government. By participating in conflicts and struggles, residents pay more attention to public rights and interests other than their own interests, and their participation in community affairs and sense of responsibility are greatly enhanced. Citizens’ civic morality and spirit of cooperation in public participation have been improved, which is of great significance for maintaining the order of the community and resolving the conflicts in the community. 1 The concept of ADR is originated in the United States, generally literally translated as “alternative

dispute resolution” (alternative or selective), but also can be translated as extrajudicial dispute resolution or non-litigation dispute resolution. ADR refers to the general term of all kinds of extrajudicial dispute resolution methods developed in the early 20th century in modern America. 2 Bellman et al. (1982), Blake and Mouton (1970), and Nader (1988) all believe that the peace obtained through coercion, the obedience of the people, community order and all predictability are problematic “harmony”.

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Of course, there is also a prerequisite to make community conflicts have such positive functions, that is, there must be stable and lasting neighborhood relations among community members, the sense of care and belonging to the residential areas, as well as mutual recognition and contact. Because in a highly mobile community, the population is not permanent, the relationship between residents is alienated and independent, and the sense of community belonging and communication is also very low. In this case, conflict resolution is mostly through tolerance, avoidance or a more moderate way rather than through problem handling and mutual consultation. Conflict itself is also difficult to promote community development and governance improvement (Baumgartner 1988). The closeness of the region cannot guarantee the harmony and stability of the community. The sense of belonging of the community residents and the establishment of a positive interaction with the government need the awareness and participation of the residents in public affairs (Barber 1984). It is through the process of conflict, consultation and problem solving that the situation of community governance has been improved and communication channels between the government and the people have become increasingly smooth (Lederach 1989; Alinsky 1972: 62). Research by Boyt and Evans shows that the settlement of community conflicts is largely handled by community mediation agencies, which act as intermediaries. These community mediation agencies are actually buffer of conflicts between the upper government and community residents. They have great flexibility in dealing with community affairs. The special role is not to be replaced by community voluntary organizations or non-governmental organizations (Boyt and Evans 1992). Therefore, in order to develop harmonious communities, cultivate public morality of community residents, protect their common interests and enhance social responsibility, the government must reduce intervention in community conflict management, including other community public affairs, and give more power and autonomy to community organizations and community residents themselves so as to promote the development of community organizations. In traditional communities, especially in authoritarian countries, community conflict mediation agencies have great mandatory and authoritative nature. When dealing with disputes between specific officials and people, they tend to take a stand, and the way of dealing with disputes is also different among people of different classes, genders and backgrounds (Dukes 1996: 157). This kind of “prejudiced” means of community conflict cannot make the integration effect of community life, nor can it really realize a healthy public community (Theobald 1978). Therefore, the influence of state power must be reduced accordingly, and the intervention of “political” factors should be reduced in dealing with and resolving conflicts in communities. To achieve this, we need to develop social organizations (Friedmann 1987; Dahl 1982). On the whole, most of the practical research on community conflict resolution focuses on the analysis of micro-theory and middle-level theory, such as the conflict between interpersonal or group interaction, or the contradiction negotiation between several parties. Western scholars such as Moore (1987), Susskind and Cruikshank

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(1987), Carpenter and Kennedy (1988), Cormick (1989) have made extensive indepth studies on conflict resolution strategies and techniques and put forward many practical and effective suggestions for conflict resolution. Laue and Cormic, two early scholars in the field of conflict research, argued that the main causes of conflict were inadequate resource allocation and unreasonable power distribution, while race, age, gender, lifestyle, occupation type, supplier/consumer and member/representative division could lead to division. Through their observations, it was found that the key to resolving the conflict was to change the existing system of resource allocation and power (Laue and Cormick 1973). Many minor conflicts may be associated with large social conflicts and the source of serious social problems, because minor disputes within the community may be the starting point of misunderstanding, the beginning of contradictions and the initial alliance of certain parties and classes. The study of the early challenge to the mainstream conflict theory was influenced by Marx’s class conflict theory. However, with the increasing complexity and diversity of contradictions in modern society, it is impossible to explain many phenomena and their underlying mechanisms only from the perspective of class. The economic order of capitalism is only one of many aspects of modernity (Giddens 1989). Dahl (1982) explains why we cannot look at and analyze the problems of western industrial society only from the perspective of Marxism, because Marxism only pays attention to class, but neglects many economic or social divisions and contradictions caused by differences in religious, regional, racial and national identities. For example, the emergence of elite will aggravate the division of social groups, but it is also a manifestation of ideological diversity, a cognitive “differentiation”, not just a product of class contradictions. According to Lipset, Most social analysts from Marx to Parsons have pointed out the fact that the social system can endure some serious contradictions or conflicts for a long time without collapsing or making major adjustments to ease tensions. The existence of large numbers of poverty, racism or other forms of exploitation does not mean that mass protests will occur on a large scale. Crisis-ridden social systems, such as the Roman Empire, may collapse and retreat. But at the same time, mass movements may also provide impetus for the success of revolutionary movements, because without experiencing fundamental institutional changes, tensions can be alleviated by adjusting their internal relations: the reason lies in the existence of certain power relations or the lack of a basis for substitutional structural relations. It should be said that these analyses and conclusions are of great reference significance to the analysis of social disputes in China. China’s urban society is facing the challenge of two major institutional changes. One is the gradual weakening influence of the unit system, and the other is the community construction movement, which is accompanied by the weakening of the influence of the unit system. The replacement of community system makes urban residents gradually change from unit person to social person. The change of system leads to more and more public problems and conflicts in the community. The public problems caused by the community construction movement are more prominent in the various environmental conflicts caused by the self-interest motivation and the rising awareness of community protection, such as the Not-In-My-Back-Yard (NIMBY) facilities and conflicts brought about by them.

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Urban communities in China have undergone a process of transformation from unit system to community system from 1949 to 1990s. The period can be divided into three stages: the 1950s is the first stage, in which the community and the unit go hand in hand, the legal community (municipal level) extends from district level to street level, and the control power is greatly strengthened; the unit system has extended from Party, government and military organs to all grass-roots enterprises, institutions and legal persons of state-owned and collective nature. And the unit society has gradually formed. The 1960s and 1970s were the second stage. Through the twoway development of community and unit community, unit society entered its heyday and legal community fell into the marginal position of urban society. The 1980s and 1990s are the third stage. The unit society in the city is shrinking, paralysing and even on the verge of solving problems. Community organizations are revitalizing, looking new and growing, and are beginning to return to the dominant position. Since the 1980s, the concept of community has been reconfirmed and gradually adopted by official documents. In the early 1990s, the Chinese government formally put forward the idea of community construction. The disintegration of the “unit system” after the reform and opening up has greatly enhanced the function of the community as a substitute for the unit (Li and Wang 2009). The characteristics of community system are mainly embodied in: first, from the perspective of management concept, community system emphasizes multi-dimensional care for people, and pays attention to daily affairs closely related to residents’ lives. In the past, the unit system had a strong idea of controlling, restricting the flow of population and fixing the relationship between workers and units. Secondly, from the perspective of management form, community system emphasizes the participation of residents and requires that the planning of community development, the implementation of community construction and the handling of community affairs must reflect the extensive participation of community residents. The administrative function of the unit system is of key importance and performs key functions, and the hierarchy of superiors and the subordinates is very bureaucratic. The relationship between the government and the units, the units and the employees is of administrative obedience. Thirdly, from the point of view of management subject, community system has changed the sole subject status of government management, strengthened cooperation between government and community, and realized pluralistic governance. In the past, the main body of management is single, i.e. only the government, in the grassroots management of society in China.3 One of the most important changes is the reform of the street management system. Because with the vigorous development of various community functions within the jurisdiction of urban street offices, the original street management system is becoming 3 Haibing He, “Woguo chengshi jiceng shehui guanli tizhi de bianqian: cong danweizhi, jiejuzhi dao

shequzhi” (The change of urban grassroots social management system in China: From unit system, street system to community system), 7 February 2007, http://www.aisixiang.com/data/13188.html, accessed 5 August 2019.

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more and more incompatible with it.4 In October 1985, Shanghai selected three streets, such as Guangdong Road Street in Huangpu District, as experimental sites and began to reform the street management system. In May 1995, a pilot project of “twolevel government, three-level management” was launched in 10 streets of 10 districts in Shanghai. It clearly stipulates that streets are the first level of municipal “threelevel management”, and further grants the following permission rights to streets: (1) The right to participate in urban planning in certain areas; (2) the right of hierarchical management to decentralize and clarify responsibilities for matters that can be managed in accordance with existing laws and regulations; (3) the right of comprehensive coordination, where professional management is strong, is directly delegated by the functional departments to the management of the organizations in the blocks and accepted the unified negotiations of the streets, such as the public. Public security, household registration management, industrial and commercial market management and so on; (4) territorial management power. Streets can directly manage matters with stable policies and clear management requirements, such as environmental health, social relief, social employment, family planning, grain register management, etc. In addition, Beijing, Jinan, Nanjing, Hangzhou, Xi’an, Chengdu, Chongqing, Harbin and other cities also followed closely. In the 1980s and 1990s, one or two rounds of street management system reform were carried out to varying degrees. The main contents of street administration reform are: breaking the partition and decentralizing power to the streets; establishing street finance; developing community coconstruction; adjusting the organization and function of Party and mass organizations (quntuan zuzhi) for community development. These new street management functions not only empower the streets but also greatly increase the pressure and burden of street affairs. The negative impact of the change of the unit system on community construction is that various kinds of conflicts in the community are more frequent and more serious. The struggle between the social vulnerable groups and the social powerful groups who have grasped political power and economic resources is still the main content of the social conflict. If we cannot establish an effective mechanism for expressing social interests and resolving disputes, social stability and national development will be greatly affected. Of course, conflict of interest does not necessarily produce political collective action. Only when this conflict of interest is manifested in a clear form and has a fundamental impact on certain authority structure can collective action take place. At the same time, with the rapid development of science and technology in recent years, community movements and protests on the protection of living environment and life safety caused by environmental pollution are also social conflicts besides class conflicts. The so-called Not-In-My-Backyard Syndrome (NIMBY) has emerged in the 1990s in the United States (Lai 2000; Qiu 2002; Li and Weng 1995).“Neighborhood avoidance” often occurs in many major environmental disputes, mainly as a policy against the state’s coercion of certain policies that are necessary for society as a whole. At the local level or in the community, residents strongly oppose the introduction of local facilities with environmental pollution or 4 Appendix

I, Organizational Regulations of Urban Subdistrict Offices.

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impacts on residents’ lives as policy objectives into their homes, and therefore initiate a grassroots campaign (Kraft and Clary 1991). The NIMBY phenomenon not only opposes the government’s taking residents’ homes as the goal of policy planning, but also opposes the way policy analysts define the problem. Because the government relies mainly on the policy orientation of experts’ science and technology and listens to experts’ assessment of environmental risks to formulate environmental policies, it would prevent residents from participating in decision-making. Therefore, the policy deadlock is that the opposing parties have different definitions and explanations on how to identify the controversial focus, what constitutes the truth and how to evaluate it, thus forming strong differences. It demonstrates not only the willingness and determination of the residents to defend their homeland from the perspective of self-interest, but also the deep distrust of the way management handles problems (Williams and Matheny 1995: 93). This is a common situation in modern society, especially in non-democratic societies, because on public issues such as environmental disputes. Non-democratic countries lack the consideration of the principles of justice and democratic procedures, rely solely on experts and governments to formulate policies, excluding opportunities for citizens to discuss, consider and participate in decision-making, thus lead to public confrontation with politics. And the high level of distrust in the government has even led to large-scale community movements and protests.5 In China’s current community conflicts, there are also a lot of NIMBY phenomena besides environmental problems. When residents’ living areas are damaged and disturbed by outside, they will collectively unite to carry out a sustained and longterm campaign. For example, since 2006, after the suspension of the maglev project in Shanghai and Hangzhou was temporarily shelved in a controversy, community residents along the route have begun to appeal continuously since they learned the situation. Although the maglev train avoids some population concentrated areas and buries under some urban tunnels, the track is only 30 m away from the residential area. Affected owners fear that they will live in an unsafe electromagnetic radiation environment.6 Psychological traits of the masses are typical manifestations of NIMBY. They oppose things they dislike near their homes and try to influence the implementation of government policies through the form of resistance, which is often the lowest cost and most effective way for residents (Kraft and Clary 1991: 301; Williams and Matheny 1985). The phenomenon of NIMBY focuses on resistance due to concern for the interests of their own communities, as well as the community movement of Not-In-Anybody’s backyard (NIABY), which focuses on public safety and interests. Supporters all believe that the public’s attitude towards NIMBY is reasonable, politically legitimate and the objection is about the broader public interest issue (Lai 2000: 260). Only by understanding the real reasons for the public’s opposition to 5 “Ningbi

(NIMBY) houzhengqun, zhuanjia zhengzhi yu minzhu shenyi” (NIMBY Syndrome, Expert Political and Democratic Review), http://www.scu.edu.tw/politics/member/a-hon/Ess3.htm, accessed 1 April 2016. 6 “Shanghai cixuanfu kuojian yin zhengyi, yanxian jumin danxin dianci fushe” (Residents along the disputed Shanghai Maglev Scheme are worried about electromagnetic radiation), http://www.chi nanews.com/gn/news/2008/01-13/1132212.shtml, accessed 5 August 2019.

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neighborhood avoidance facilities and taking effective measures can we prevent the emergence of NIMBY phenomenon and effectively solve neighborhood avoidance conflicts.7 Therefore, it is necessary to study the community conflicts in Chinese society, especially the collective disputes in big cities such as Shanghai, and to add the factors of institutional change and the background and current situation of Chinese political society into the study of community group disputes. At the same time, we have to pay attention to the four parts involved in the current urban community system: the relationship between government, market, society and political parties. Unlike the three major parts of government, market and society in Western society, the party also plays an important role in Chinese communities, thus forming the fourth major part (Ma 2001). Hence, how the four sectors operate in community practice is an important issue related to the success of community system and the effective solution of community conflicts.8 When dealing with community contradictions and disputes, we can see from the historical documents of people’s mediation in China that people’s mediation has been endowed with totally different political connotations from traditional mediation (Fan 2005; Xiong 2006; Miao 2004; Gu et al. 2000). Especially in the early practice of traditional mediation, the settlement of disputes is a political act and mediation is the manifestation of the Party’s ideology in practice. “Mediation has been developed as a tool of mobilization, linking dispute resolution with communists’ attempts to reconstruct society and adapting dispute resolution policies to the needs of socialist construction” (Qiang 2001: 312). Especially from the historical development of people’s mediation after the founding of New China, we can realize that people’s mediation is a part of the national social security organization system, is the key to the perfection of the network of the ruling power organization of the Communist Party, and provides the ruling party with the basic tools to directly govern society. Moreover, “Mao Zedong Thought” and Confucianism also have many common points, such as hatred of litigation, high reliance on “criticism-education”, self-criticism and “voluntary” methods. New China distinguishes between contradictions between the enemy and ourselves and contradictions among the people, while civil disputes belong to contradictions among the people, so they are settled by democratic, critical, persuasive and educational methods rather than by coercive and repressive methods (Cohen 2001). At present, the research on conflicts in China’s local society mainly focuses on rural land rights petition and rural governance (Yu 2003a, b, 2004, 2006, 2008; Ying and Jin 2000; Ying 2004, 2007; Li 1999; Wang and Wang 1997; Zhang et al. 2000) and urban community rights and community governance (You 2006; Zhang 2005; 7 “Gongzhong

fandui linbi sheshi zhi wenxian huigu” (Understanding Public Opposition to NIMBY Facilities: A Review), http://ceprm.grm.cuhk.edu.hk/LULU/Publications/Paper_Taiwan Conf_070228.pdf, accessed 7 July 2019. 8 Haibing He, “Woguo chengshi jiceng shehi guanli tizhi de bianqian: cong danweizhi, jiejuzhi dao shequzhi” (The change of urban grassroots social management system in China: From unit system, Street system to community system), http://www.aisixiang.com/data/13188.html, accessed 7 August 2019.

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He 2005; Shi 2003a, b; Xu 2000; Xu and Chen 2002). The conflict between these two aspects has also formed a multi-disciplinary academic hot spot. At present, most of the domestic research on collective disputes with common interest orientation refers to and draws lessons from the relevant theories of collective action and social movement abroad, and has achieved some success in interpretation. But after all, what we call collective disputes is different from Western collective action and social movement. “Western collective action and social movement are all political actions outside the system or confrontational. But in China, political actions outside the system or confrontational political activism are facing serious legitimacy dilemma, collective action and social movement in a strict sense lack space for existence because it is difficult to institutionalize” (Ying 2007: 2). But undoubtedly, the study of collective behavior and social movement in the West has provided a lot of inspiration and reference for China’s local practice. The research on civil dispute mediation is based on the legal perspective. It often uses the method of evaluating specific cases, from which we can derive the discussion of macro-issues, such as the relationship between national law and civil society, the diversification of dispute resolution methods and legal evasion (He 2004; Peng 2000; Qiang 2001). Research on urban community dispute mediation focuses on how to establish alternative dispute resolution mechanism, how to improve the people’s mediation system in China, and how to give full play to the advantages of folk mediation resources (Yu 2005; Li 2005; Shi 2003a, b). However, the existing research lacks comparative study of different types of communities, especially the comparison of domestic community disputes cases and abroad. Most of them believe that the development orientation of community people’s mediation is government-led legalization, ignoring the pluralistic development of the internal organizations in urban communities, especially in the process of the transformation from unit system to community system. In terms of research perspective, most of the researches are at macro and meso level, addressing questions such as how to effectively provide public services by the government, how to improve the system settings in community governance, or take the state-led as the value orientation, or unilaterally emphasize the importance of community autonomy in resolving disputes and maintaining order. In a word, they only start from one dimension of the state, market and society, but do not regard dispute settlement as the result of interactive game among three power subjects (Chen and He 2006). In view of the limitations of the above perspectives on community conflicts, this book will start with the mediation of collective disputes in urban communities in China. By describing the generation and resolution of disputes within communities, it will examine the interaction between the state and social organizations in the process of community transformation and its impact on effective dispute resolution, explore how to maintain the community order and the way to build a harmonious community.

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3 Social Conflict and Theory of State-Society Relations Connecting the concept of social conflict with the social relationship of the state can study the interaction between the state and social organizations through the conflict and its handling, because in many cases, conflict resolution is accompanied by the infiltration and intervention of state power to varying degrees. In Marxist politics, social conflicts are considered to be the inevitable outcome of structural class interaction, which is accompanied by class oppression and oppression. Its purpose is to change the relationship between class oppression and oppression. Conflicts cannot be resolved in the existing system with the ruling class as the main body. Only by changing the mode of production of the whole society and reversing the relationship between oppression and oppression among classes can social conflicts be solved. In his book Marxism and Politics, Miliband (1977) holds that oppression and conflict are inherent in class society and are basically restricted by the special mode of production in society. All kinds of social conflicts derive directly or indirectly from class conflicts and are related to class conflicts. Why can Marx use “the oppressor and the oppressed” to understand all social conflicts? The theory and practice of the relationship between state and society have attracted more and more attention. For the contemporary western theory of the relationship between state and society, although some theories can be traced back even further, the theories of negative state, social restriction of power, small government and big society advocated by modern western political thinkers are still the most direct source. Therefore, it is particularly important to sort out and analyze the thinking logic and inherent characteristics of modern western countries and social relations theory. Miliband (1977) pointed out that, according to Marx’s understanding, social conflicts are basically caused by the ruling class’s desire to exploit the labor of the ruling class as much as possible, and the ruling class’s attempt to change or even terminate their exploitation. Starting from this understanding of Miliband, as far as Marx is concerned, social conflicts are manifested in the process of class repression and counter-repression. Class repression has different but related aspects, such as economy, politics and culture. However, class repression cannot be purely economic or cultural, but it must have political implications as well. Political content, economic and cultural oppression are ensured by political oppression. The theory of the relationship between the state and society in modern western countries has produced a great divide between the dominance and the priority of the state and society in the realization of individual rights. The western theorists have made a great distinction: one group advocates state-centered and emphasizes the role and value of the state, which belongs to nationalism; the other group emphasizes society-centered and sudden changes. The ability and significance of being out of society belong to pluralism. Along this theoretical division, two thinking paths are gradually formed, namely, the “national line” and the “social line” (Pang 2006). Compared with the social line, the national line (from Machiavelli, through Bodin, Hobbes, and then to Hegel) pays more attention to the role of the state in relation to society, which is considered to be either large or small, or dispensable. In the

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modern sense, the concept of the state as an abstract public power has sprouted in the Renaissance.9 Machiavelli (2006) regards the national interest as the source of legitimacy of government action. The monarch can use any means for the national interest, the means should serve the purpose, the purpose can explain the legitimacy of the means, and the state can act on the basis of “reason of state”. As an early explorer of the concept of modern state, Bodin endowed the state with modern significance. He found that sovereignty is the essence of the state, which is “a legitimate government with the highest sovereignty composed of many families and their common property”. Because of this, sovereignty has absoluteness, permanence and supremacy. Because of their simple political value orientation, they did not discuss the foundation of public power and the relationship between sovereign and social individual, and failed to fully reveal the core content of the national line. It was Hobbes who gave a systematic exposition of the national line. With the help of social contract, Hobbes tells people that when making a contract, people give up all rights, but the sovereign does not participate in the contract, so the latter is not bound by the contract, and its power is absolute, supreme and infinite. However, the power of the sovereign also has a bottom line: to preserve the right and power of the right transferer to defend his own life against the infringement of others. In this way, the sovereign in Hobbes’ eyes is actually a personality of “a large group of people making covenants with each other, each empowering his actions so that it can use all forces and means in a way conducive to peace and common defence for all” (Hobbes 1995: 132). This “personality” is an abstract expression of public power. Hobbes insists that individual rights are the foundation of state power, but in the opposition between individual rights and state power, he tends to state power. For the first time, Hobbes clearly expressed the concept of modern state in explicit language, which laid the basic principles of modern western state theory, and also constructed the initial model of the relationship between state and society. According to Hobbes’ theory, society can indeed be protected by the state, but in fact, apart from the “negative freedom” promised by those countries, which is almost impossible to achieve, society is more subject to the domination, intrusion and penetration of state power. Hobbes made the state have the role and mission of protecting and dominating the society, but also had the absolute superiority over the society, thus creating a value orientation of the western theory of state and social relations, which deeply influenced the future generations. Hegel has a broader vision than Hobbes. He regards society as the product of history and the second form of human moral organization. Because of the self-interest as the foundation, society is full of endless conflicts and struggles. This deficiency can only be overcome by the state, which not only represents the public interest, but also guarantees the special interests of individuals and other social organizations. 9 Skinner

(2002: 374) holds that the concept of modern state is an abstract concept of state, which represents a kind of public power separated from the rulers and the ruled. The formation of this concept of state is a long historical process. This process began with the use of the word “state” by political thinkers of some urban republics during the Renaissance in the 15th century, and was completed by Machiavelli in the late 16th century. And Bodin’s national theory is a summary of this transformation process.

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Therefore, not only should the state not be placed on the opposite side of society, but also the state should control the society. Hegel’s view of the state expresses his worship of the state in more theoretical terms: the state itself is an end, and the individual and society exist for the state; the freedom and rights of the individual are meaningful only when they are in line with the highest purpose of realizing the state. At this time, the state is not only the center but also the essence and significance of individuals and even the whole society. There is no doubt that Hegel has brought the national line to its fullest. The social line corresponding to the national line holds a negative attitude towards the state, propagates and advocates the social precedence through the social contract theory, and proves the social externality by discussing the legitimacy of the existence in the economic field. Locke, Paine, Montesquieu and Tocqueville insisted on this route. Both are based on individualism and social contract, but Locke and Hobbes have different conclusions. Locke did not trust state power but expressed concern about its conflict with individual rights, and emphasized the non-political nature of society. Although he did not completely distinguish between the state and society, he advocated that the state should be responsible for the society based on the legislative power and judicial power generated by contractual entrustment; the society existed before the state, and the state had only the instrumental status. Locke’s paradigm of relationship, as some scholars have noticed, leads to two kinds of “ideological orientations”: one is propaganda and advocacy of restricting state power and safeguarding individual power, and the other is self-confidence of society to get rid of state interference and autonomy (Deng 1999: 93–95). It is Tocqueville that systematically elaborates the social line. Tocqueville (1991) is thinking about the following questions: the electoral state autocracy poses a threat and impact on modern society; society becomes the dominant thing of state power in the name of democracy. Although active and powerful political institutions are necessary for freedom and equality, monopoly of power must be prevented. He put forward the idea of “restricting power by society”, advocating that political power should be allocated to pluralistic social sectors, highlighting the Democratic significance of citizen action, and giving full play to the role of “the independent eye of society” as a barrier against full-time national duty. In his view, a “civil society” with pluralistic autonomous organizations independent of the state is an indispensable condition for democracy. State power without social constraints is always dangerous and uncontrollable, and is an indulgence of autocracy (Tocqueville 1969). Obviously, the national line and the social line have a common feature: while paying attention to one pole of the country or society, they neglect the position and role of the other pole. Either it simply emphasizes the security, benefit integration and welfare supply of the state to the society and becomes a “state-centred society”; or it unilaterally emphasizes the separation and opposition between the society and the state, propagates and advocates the autonomy and autonomy of the society, ignores the unity of the state and the society, and becomes a “society-centred state”. This tendency was well corrected in the 20th century. After entering the 20th century, the national and social lines tend to blend and integrate. Although there are still disputes and divergences of opinions among various

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contemporary theories on the relationship between state and society, they all begin to pay attention to the unity of state and society and the relative balance of rights, not only to a single country or a single society. However, through the different orientations and interpretations of different schools on the relationship style between the state and society, there are two hidden lines between the state line and the social line, which is also a major feature of the contemporary western theory of the relationship between the state and society. Joel S. Migdal’s two books, Strong and Weak Countries: State and Social Relations in the Third World and State Capacity published in 1988, and Power and Social Power of the State published in 1994, can be said to be classic works in the field of state and society relations. Migdal also explicitly put forward the “state-in-society” analysis paradigm in The State in Society: A Study on the Constitution and Transformation of the State and Society (2001), which embeds the state in society and interacts with the society, and both of them are in a mutual transformation process. He took the state structure as a social organization and decomposed it into different levels of government, various policy areas and various state departments. In recent years, Migdal has introduced Limits and Ownership (2006) respectively to validate, apply and develop the above models. The theory of social embeddedness and interaction of state is put forward as a response to the theory of new nationalism. New nationalism holds that the state is an autonomous subject with its own preferences, and that the relationship between the state and society is either right or wrong, which belongs to the “state versus society”, and the two belong to the zero-sum game in power relations. The theory of “social embeddedness and interaction of state” makes people pay attention to the role of society in promoting or hindering state behavior. In this sense, the relationship between state and society is not necessarily a zero-sum game relationship. It can be either a positive-sum game (win-win) or a negative-sum game (i.e., both losers and losers are injured) (Manning 2001). Individual, civil society and state boundaries are generated through interaction and endogenous, and they are mutually transformed, not unchanged. This analysis method is in sharp contrast to the previous state-centered or social-centered theory, or the Habermas’ analysis paradigm that “public sphere” is a “civil society” independent of the state. The paradigm of “social embeddedness and interaction of the state” makes progress in the view that the formation of private sphere (individual rights), civil society and limited government is endogenous through interaction. This means that society can also be divided into two systems of private interests and public interests, namely, the private sphere and the public sphere. So there is a contest and push-pull relationship between the state, the private sphere and civil society. The formation and development of private spheres and social organizations can lead to limited government, thus achieving a win-win situation. The debate on the theory of state social relations also to a certain extent corresponds to China’s current situation and development. From the point of view of the whole western society, after World War II, with the failure of Keynesianism and the crisis of welfare state, some scholars appealed for limiting the power and scope of activities of the state and returning to civil society. National centralism began

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to decline, and it was expected that unofficial, co-sponsored organizations would be better able to solve the practical problems facing them than the state. Since the 1980s, with the rise of the theory of governance and good governance, state power has returned to society again. Theorists and scholars concerned about civil society began to study it from the perspective of political sociology. Before the reform and opening up in 1978, China was in the state of national omnipotence. With the continuous development of society, the historical track has proved that this theory which deified the state and government no longer adapts to the reality of China (Liu and Li 2007). However, the reality of “inefficiency, weakening of legitimacy and weakening of dominance” accompanied by the Western pluralism system also makes us question the applicability of pluralism in China. In recent years, scholars including domestic and abroad have made many empirical and policy studies on Chinese society within the framework of the analysis of the relationship between state and society (Ji 1998; Zhao 2007; Gries and Rosen 2004; Diamant et al. 2005; Kang and Han 2008). But after 2007, researches on China with the dichotomy of state and society have dropped sharply. Scholars pay more attention to how to understand the relationship between the state and society in the period of contemporary transformation, including Chinese civil society (social organizations, NGOs), state power and social power, public space, central and provincial and municipal levels, the relationship between government and society, the response of various organizations and institutions to changes in national policies, strategies or policies for communication between the state and the community, etc. The development of Chinese associations has also attracted many scholars’ attention. Yet the “incompleteness” of the academic classification of Chinese associations has emerged, reflecting the ambiguity of the boundary between the state and society (Deng and Ruan 2008: 132). Scholars who study Chinese associations can be divided into two groups: civil society and corporatism. The former mainly acknowledges that the “civil society” created by Chinese associations and their activities is different from that in the West, and can only become “semi-civil society” (He 2003) or “state-led civil society” (Frolic 1997). But most scholars of the civil society school believe that primary civil society is a necessary condition for democracy. Through various rights and interests strategies, civil society organizations can continuously develop their own strength and gain greater autonomy and become the political and public sphere to promote the democratic process of society (Deng and Ruan 2008: 133). The perspective of corporatism begins with Philip Schmitter, who defines it as “a system of interest representation”. In this system, “member units are integrated into a limited, single, compulsory, non-competitive, hierarchical and functional organizational sequence. These organizations are recognized or authorized by the State. They trade the freedom of choice of leaders and expression of needs for a negotiated, representative monopoly in a particular organization (Schmitter 1974: 96). That is to say, at the national level, the government only recognizes an organization representing the interests of the department and has the right to decide which organization is the legitimate representative. At the same time, these “selected” organizations often represent the interests of the country into the decision-making process to help the country improve its policies.

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Based on the study of the East Asian model, Unger and Chan further argue that corporatism usually includes multiple working relationships between state and interest group organizations. An actively intervened country coordinates the organizational relations of different departments, but the premise of intervention is that the government is the guardian of public goods, and the national interests transcend local interests. Yet within this framework, the state does not have direct control, it gives organizations a certain degree of freedom in certain areas. But in order to ensure that the contracts and agreements reached by the upper levels can be effectively implemented, the government requires these organizations to discipline and control their members (Unger and Chan 1995). Unger and Chen also believe that corporatism is more suitable for explaining the development of Chinese associations. On the one hand, the perfect bureaucracy, strong national autonomy and collective-based Confucian culture provide favorable conditions for the growth of legal unity structure in Chinese social communities. On the other hand, along with economic liberalization, the state also needs to take corporatism as an alternative mechanism to achieve effective social control (Unger and Chan 1996). Some scholars try to find a balance between the two factions and acknowledge the infiltration of state power. At the same time, they also notice that the bargaining power between associations and the state is increasing. Although the perspective of corporatism can well depict the characteristics of top-down control and show the process of citizens being integrated into the vertical structure, it is easy to risk ignoring the important elements of the change of state-social relations and simplifying the dynamic process (Saich 2000). Indeed, the relationship between state and social organization is symbiotic. At present, China is in a period of social transformation, and the country is facing various complex and frequent social contradictions and problems. Various organs and organizations, including courts, judicial administrative organs, local governments and other organs and organizations are working to establish a diversified dispute resolution mechanism through division and coordination so as to achieve comprehensive governance of social security, promote social stability and healthy development, and establish a good legal order. How to coordinate the state and social mediation organizations, how to reform and improve them, and how to better play their unique functions, has always been an important issue faced by people’s mediation organizations, judicial administrative organs and even governments at all levels. According to this book, through the study of the conflict resolution in the current Chinese society, especially the group disputes with great influence between the officials and the people, we can see that the interaction between the state and the society is in the process of the transformation of the state and the society to a certain extent, but the model of “the state embedded in the society” is not so applicable to explain the current situation of China’s development. On the one hand, in order to rely on social organizations to deal with a large number of social contradictions and disputes, the state does give social organizations independence to a certain extent. In 1998, the state promulgated the Provisional Regulations on the Registration Administration of Civil Non-Enterprise Units, which

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allow social organizations to register within the scope permitted by the state law.10 Yet some scholars point out that in reality, China has formed some monopolistic social organizations, such as the All-China Women’s Federation and the All-China Federation of Trade Unions, and the dual supervision system stipulated in the Regulations has also shaped the “dual character” of these social organizations (Yu 2003a, b). By 2014, the Fourth Plenary Session of the Eighteenth Central Committee of the CCP adopted the Decision of the Central Committee of the CCP on Several Major Issues Concerning the Comprehensive Promotion of Ruling the Country by Law, which affirmed the positive role of social organizations and called for the full play of the positive role of people’s organizations and social organizations in the construction of a society with rule by law. We should establish and improve mechanisms and institutionalized channels for social organizations to participate in social affairs, safeguard public interests, rescue people in need, help and educate special groups, and prevent crimes. We will support trade associations, chambers of Commerce and other social organizations to play the role of industry self-discipline and professional services. The role of social organizations in guiding their members’ behavior, restricting rules and safeguarding their rights and interests should be brought into full play. Therefore, to a certain extent, the state relies more and more on social organizations to participate in the management of social affairs and undertake considerable tasks to alleviate the burden of the government. Social organizations are also expanding and developing their independence and autonomy in the interaction with the state. On the other hand, since China is a one-party country under the people’s democratic dictatorship, the market competition and legal system are not yet perfect. Under the current system of double supervision of social organizations, social organizations need to be “affiliated” to a certain government department so that it can be established, have legal status, and enjoy a series of preferential and protective policies, which to a large extent inhibits their independence and autonomy. And B. Michael Frolic, a scholar who specializes in Chinese civil society, put forward the concept of “state-led civil society” in his book Chinese civil society (1997) compiled with Timothy Brook to analyze the current situation of Chinese civil society. Frolic, in view of the strict top-down control imposed by the Party and the government on social organizations in China, believes that Chinese social organizations are “state-led civil society model” besides the four civil society forms he listed, which means all kinds of social organizations and quasi-administrative units under the guidance of the state. The purpose of their operation is to assist the state in managing various economic and social affairs (Frolic 1997: 47). In this model, the CCP is in a dominant position and manages the society as well as the social organizations and quasi-administrative units established in other countries. This special mode of social organization is an existing form of social organization with Chinese characteristics. Frolic mainly demonstrates that “civil society” in China operates and develops under the leadership of the state by studying four kinds of organizations in China: the new type of villagers’ election organization; the rise of 10 See Appendix G, Provisional Regulations on the Registration Administration of Civil NonEnterprise Units.

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non-governmental organizations (NGOs) (taking “Project Hope” as an example); the rise and development of social organizations in Zhejiang (taking Xiaoshan as an example) and the emergence and development of industry associations in Fujian (taking Xiamen as an example). These four cases do reflect to some extent the support and control of China’s modern countries on the development of social organizations, but lack of research on the development of social organizations in major cities in China, such as Beijing, Shanghai, Tianjin, Chongqing and other municipalities directly under the central government. Because of the key political and economic status of big cities, the development of urban civil society organizations is more valued and strengthened by the government (Yu and Wang 2001). Of course, this model provides a better way to explain China’s national social relations because it does not completely isolate the state from society, nor does it ignore the role of the state in the operation and development of social organizations. Yet considering that the concept of civil society emphasizes the social sphere independent of the state, its constituent elements must be non-governmental and non-enterprise organizations (Yu 2000: 327–328). In modern Chinese society, many scholars believe that most of the social organizations are controlled by the state to some extent, so there is no formal social organization completely independent of the state and there is no civil society in the Western sense (White et al. 1996). Moreover, the development of social organizations is immature. They have a considerable dependence on government organizations and large interest groups. They do not have enough ability and autonomy to participate independently in the process of policy-making, and they also lack the ability to stand out in this field (Hsu and Hasmath 2014). However, the background and reality of Chinese society have its own particularity. If we copy the model of embedding the country proposed by the western scholars into Chinese society, at least at present, it is difficult to explain the current situation of China well. In fact, the term “civil society” should not be used to define all kinds of state-led social organizations. We need to re-examine the relationship between the state and society based on China’s actual environment. The hope of this book is to put forward an interpretative framework to describe and analyze the current interaction between China’s state and society through in-depth investigation.

4 Double Concern Theory and Conflict Management Model of Blake and Mouton It is known from the existing literature that conflict management can predict the outcome of conflict to some extent. Researchers believe that the study of conflict management can help to explore more effective conflict resolution methods (Rahim 1989: 33–40). Five models for dealing with interpersonal conflicts among organizations were originally conceived by Follett (1940: 30–49) in 1926. She envisioned three main ways of dealing with organizational conflicts-domination, compromise

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and integration, while there were other secondary means of dealing with conflicts, such as avoidance and repression. Based on Follett’s initial model, Blake and Mouton (1964) first developed a conceptual scheme to divide the way of dealing with interpersonal conflict into five types: Forcing—solving problems by imposing personal will or goals on others’ will when dealing with conflicts; Avoiding—intentional avoidance, trying to avoiding conflict events, conflicting parties, conflicting parties or conflicting situations; Smoothing—putting the interests of others above personal interests or goals in dealing with conflicts to solve problems; Compromising—making appropriate concessions to achieve mutually acceptable solutions to conflicting issues; Problem-solving—the parties dealing with conflict and seasonal contradictions reach consensus through dialogue and consultation to meet the interests and needs of all parties to solve the problem. Then, they designed a nine-point two-dimensional conflict resolution model (Blake and Mouton 1964, 1970). The abscissa expresses the concern for people and the Y-axis expresses the concern for matter. One point represents the least concern and nine points represents the greatest concern. It also includes five dispute resolution modes: avoidance (1 concerns the person and 1 concerns the matter), smoothing (9 concerns the person, 1 concerns the matter), compromise (5 concerns the person, 5 concerns the matter), coercion (1 concerns the people, 9 concerns the matter) and problem-solving (9 concerns the matter, 9 concerns the person) (see Fig. 1).

Smoothing

9

Two Dimensions and Five Conflict Model

Problem-solving

8 7

Concern for people

6 5

Compromise

4 3 2 1 Avoidance

0

0

1

Forcing

2

3

4

5

6

7

Concern of production

Fig. 1 Blake and Merton’s two-dimensional five dispute handling model

8

9

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It should be noted that Blake and Mouton stipulate that nine discontinuous points are fixed-distance dimension rather than ordering. They call them “directional units” (1981: 442), which leads to the use of two-digit numbers to explain the meaning of the system. For example, “9, 9” means 9 points concerning for people and 9 points concerning for matter at the same time. But it is not so simple to explain the real situation. Each way represents the result of two-dimensional interaction. Therefore, these two dimensions are inseparable (Blake and Mouton 1981: 441). Blake and Mouton’s dual concern theory assumes that individuals or organizations have two tendencies to face interpersonal conflicts: the tendencies to achieve their own goals (concerns) (X) and the tendencies to maintain interpersonal relationships (concerns about people) (Y). The former dimension means that the individual pays more attention to the conflict itself (high or low) in order to reduce the conflict and solve the problem; the latter one is the degree of personal concern (high or low) for meeting the needs of people in conflict events, and more emphasis on interpersonal relationships so that all parties in conflict can reach an agreement. “Concern” here does not refer to the quantity (such as how many things) or the actual satisfaction of people’s needs but focuses on the degree of concern, which is directed at the person/party dealing with the conflict, because his/her behavioral tendencies are rooted and developed in his/her basic attitude. By incorporating double concerns into the measurement model of conflict resolution, five different ways of conflict resolution can be obtained. The characteristics of various ways of conflict resolution can be summarized in Table 1. Among the other conflict resolution measurements based on the theory of dual concern, the four most important are Rahim’s 1983 Rahim Organization Conflict List I and II (ROCI-I and ROCI-II), Hall’s 1969 Conflict Management Survey (CMS), Renwick’s 1975 Employee Conflict Inventory (ECI) and Thomas and Kilmann’s 1974 Management-of -differences Exercise (MODE). However, different models have different names for conflict resolution (e.g. pacification is also called concession, accommodation or concession), but the basic principles and premises of these demonstrations are consistent. According to people’s own evaluation of five different conflict resolution methods, we can find a place in the two-dimensional model. Figure 2 shows the different conflict resolution methods based on the theory of dual concern. The figure contains the names of different conflict resolution methods, but they are all based on two-dimensional conflict resolution models of Hall, Pruitt, Rahim and Thomas (Sorenson et al. 1999: 27). In this book, Blake and Mouton’s (1964) conflict resolution measurement model is used to discuss different types of conflict management under different types of state and social relations. In particular, this model will be used to explain China’s state-led conflict management. There are three reasons for choosing this model. Firstly, this model has been widely referenced and quoted by scholars and experts who study conflicts, because it does not have cultural discrimination, and can be used to explain the ways of conflict management in various cultural and social environments (Van De Vliert and Kanbanoff 1990; Rahim 1986). Secondly, more than 100 academic works have been published on the basis of this model to expand relevant research, including

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Table 1 Characteristics of Black and Mouton’s five conflict handling model Style of conflict resolution

Characteristics

Problem-solving High concern for people and matter

Win-win situation The parties in the conflict cooperate with each other to reach a satisfactory solution. Interpersonal relationships are just as important as event goals. Each party achieves the goals together and the results do not conflict with each other’s interests. This is the best way to resolve conflicts

Smoothing High concern for people but low concern for matter

Sacrifice individuals to meet the needs of the other party In Chinese society, this does not necessarily mean self-sacrifice or selfless generosity. The Chinese believe that giving benefits to each other is only an investment and expect reciprocal returns in the future

Forcing High concern for matter but low concern for people

It’s a win-lose option or a win-win by coercion The Chinese don’t like this strategy very much, because in the long run it will hurt the harmony between them. It is only used when conflict is very difficult

Compromise Medium concern for people and matter

Both sides share or compromise to achieve mutually acceptable solutions. In the process of exchanging terms, both sides should make certain concessions so that the agreement can be reached

Avoidance Low concern for people and matter

Avoiding conflict and shirking responsibility When problems cannot be solved through compromise, the Chinese may take temporary evasion of disputes and wait for a more favorable time to deal with them To some extent, this is the most unsatisfactory way to resolve conflicts

journal papers, conference papers, doctoral dissertations and master’s dissertations, which proves that this model is effective. Thirdly, from the existing research results, we can see that the five models of conflict resolution based on double-focus theory are one of the most used models in the study of organizational conflict resolution. It is also considered as a good reference standard for the study of “matter-person” problems and can show effective solutions to different problems (Blake and Mouton 1964: xi). This book uses Black and Mouton’s model of conflict management, and argues that conflict resolution is to achieve two different goals, one is to try to solve the problem; the other is to meet the needs of people. According to James Schellenberg’s definition of social conflict, conflict mainly stems from the opposition between individuals and collectives based on interest competition, different identities and different attitudes

60

Concern for people (Blake and Mouton); The desire to satisfy others (Thomas); Pay attention to others (Rahim); Concern for relationship (Hall, Renwick)

3 Conflict Theory and Conflict Handling Model Smoothing (Blakeand Mouton, Renwick); Accommodation (Thomas); Pacification (Rahim); Submission (Hall)

Problem-solving (Blake and Mouton); Facing problems (Renwick); Cooperation (Thomas); Integration (Rahim); Coordination (Hall)

Compromise ( Blake and Mouton, Renwick, Thomas, Rahim, Hall) Withdrawal (Blake and Mouton, Renwick); Avoidance (Thomas, Rahim); Retreat (Hall)

Forcing (Blake and Mouton); Competition (Renwick); Control (Rahim); Win or lose (Hall)

Concern for matters (Blake and Mouton); The desire to satisfy oneself (Thomas); Concern for oneself (Rahim); Concern for one’s goal (Hall, Renwick)

Fig. 2 Different conflict resolution ways developed by the theory of double concern

(Schellenberg 1996). Rahim (1986: 100) mainly considers the conflict itself and its outcome when measuring the way of conflict resolution, which is based on the nature of opposition and the goal of conflict resolution. To further subdivide the types of conflicts, the book divides conflicts into two levels: the individual level and the collective level; and then the root level. Then according to the three sources of conflict: identity, attitude and interests, conflicts can be divided into six categories (see Table 2). This division of ideal types of conflict emphasizes that the impact of the nature of conflict on the way of conflict handling should be paid attention to before studying and analyzing the way of conflict handling. Table 2 Ideal classification of conflicts

Source of conflict

Level of conflict Individual level

Collective level

Identity

Personal identity conflict (none)

Collective identity conflict

Attitude

Individual attitude conflict

Collective attitude conflict

Interest

Individual interest conflict

Collective interest conflict

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5 Characteristics and Model of Collective Dispute Resolution Based on the ideal type of conflict, this book attempts to link Blake and Mouton’s (1964) double-focus theory and conflict resolution measurement model with Chinese community conflict resolution, and discuss the characteristics of collective dispute resolution under Chinese political system. Social conflicts generally include the conflict of identity, the conflict of attitude between individuals and collectives, and the conflict of interests between individuals and collectives. As can be seen from Table 2, the conflict of identity, whether individual or collective, mostly comes from race and gender, identity of nationality, identity of team or organization, and identity of certain symbols and mysteries in a particular region. This is usually recognized only at the collective level and is influenced by social and cultural traditions. Generally speaking, personal identity is associated with group. Contradictions between social entities and themselves in terms of values or ideologies are often regarded as collective identity conflicts (Holt and DeVore 2005). The conflict between individual and collective attitudes generally stems from differences in religious beliefs and different values and views of individuals on things. When two interacting social entities attempt to deal with problems together, conflicts arise because of the incompatibility of their views, feelings and emotions on all matters and issues (Guetzkow and Gyr 1954). The conflict of interests between individuals and collectives mainly comes from material competition and competition for scarce resources. This can be defined as an incompatible contradiction between the two sides in the struggle for scarce resources. And this often happens when “each side is inclined to adopt different or even difficult to coordinate solutions to deal with the allocation of scarce resources or make some decisions” (Druckman and Zechmeister 1973: 450). In addition to the factors of different social forms and cultural concepts, the nature of conflict has a significant impact on the way conflict is handled and resolved (Schellenberg 1996; Wall and Blum 1991: 6). Combining Blake and Mouton’s conflict management model, when resolving the above six types of conflicts, conflicts of interest are mostly caused by contradictions and inconsistencies in economic affairs or material relations, and it is more likely to find material conditions for the parties to compromise in order to reach a consensus. Therefore, the focus is on using the more right-sided conflict areas in Fig. 2. The rational way, namely compromise, coercion and problem solving, will resolve disputes more quickly and effectively. The conflict of identity and attitude is based on people’s ideology and views, and it is more difficult for the two sides to change their original attitudes and form a consensus than the conflict of interests. Therefore, it is more ideal and more effective to focus on the left-sided way of paying more attention to people in Fig. 2, that is, compromise, pacification and avoidance. In fact, the state form also has an important impact on conflict resolution. In order to discuss the collective conflict between the people and the government, we must first discuss different political systems, which is the decisive factor for a country’s political

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parties to adopt how to solve the conflict. Therefore, it is necessary to combine various national forms with the model of conflict resolution. Most autocratic regimes adopt coercive means because the autocratic regime itself is full of serious conflicts of interest and contradictions, and its autocratic power is not granted by the nationals and is not restricted by the nationals. The rulers often use public power, that is, state power, in order to safeguard corrupt rule and the interests of the ruling groups. This will inevitably lead to a deep conflict of interest and contradiction between the ruling group and the general public. Finally, the government forces the people to rebel, sometimes very bloody. This mandatory means of resolving contradictions, due to the lack of consideration of the wishes and feelings of the people, will only prolong the inherent contradictions and conflicts, accumulate over time and intensify constantly, and eventually inevitably erupt, leading to violent turbulence in the country and seriously threatening the stability of the country (Huntington 1993). In contrast, conflicts between the people and the government still exist in democratic countries. However, many conflicts in democratic societies are not clear conflicts of “right” and “wrong”, but conflicts caused by different opinions on democratic rights and social priorities caused by serious racial, cultural and religious differences in society. For example, is it correct to allocate a certain percentage of work to minorities who have been discriminated against? Does the state have the right to buy the land of a person’s house to build a badly needed road? Whose rights should prevail when society prohibits logging in the name of protecting wild forests at the expense of the livelihoods of communities dependent on the timber industry and undermines their economies? If the police intercept the people at will to fight drug trafficking, does it violate the rights of citizens or protect the rights of society? In dealing with these conflicts, individuals and groups are at least willing to tolerate their differences and recognize each other’s solid rights and legitimate views. All parties to the dispute, whether in local residential areas or in national parliaments, should meet in a spirit of compromise and seek a concrete solution based on the general principle of majority ruling and taking care of minority interests. Therefore, in democratic countries, when confronted with disagreements, groups are less likely to resort to violence or repression, and more solutions are developed through electoral and parliamentary procedures so that interest groups can negotiate, compromise and cooperate with others under the constitutional system, argue in a cooperative and peaceful manner, and finally reach a solution acceptable to all parties (Huntington 1993). Blake and Mouton’s (1964: 16) study argues that Americans are more likely than people in any other country to adopt a “problem-solving” approach, because American individualism and the emphasis on efficiency in problem-solving play an important role in the cultural factor; that is, paying close attention to people and things at the same time. Then, what kind of methods will be adopted to deal with the conflict of interest of the group under the leadership of the Chinese state, which is the main body of this book? With the development of reform and opening-up and the gradual differentiation of social strata in China, the simple and uniform interest groups in the past have ceased to exist, replaced by various interest subjects associated with specific economic

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relations. The coexistence of multiple interest subjects in society leads to the increase of conflicts of interest and makes the conflicts of interest very prominent. Economic problems are the general source of social conflicts and also the important cause of interest conflicts and unfair distribution of interests. Although most of the conflicts among the people are caused by the unsatisfactory economic interests, if they are not handled properly and the conflicts intensify, they may change from economic problems to political problems (Liu and Sun 2003). In the Shanghai community, the conflict of economic interests also occupies the majority of the contradictions while the conflict between identity and attitude is relatively small. In fact, there are more and more large-scale social conflicts—mass incidents— although they are intricate and have various reasons, they are mostly related to policy adjustment and conflicts of interest in the transitional period. When people’s interests are infringed and there is a lack of appropriate interest expression mechanism and right relief mechanism, it may lead to collective conflicts, and the problems of regions, industries and reflections are relatively concentrated (Xu 2008: 186). Statistics from the Ministry of Public Security in 2004 show that labor relations, land expropriation in rural areas, urban demolition, restructuring of enterprises and compensation for resettlement of migrants are the direct causes of mass incidents. Other types of conflict are not excluded here, but this book focuses on group interest disputes (Table 2), and does not discuss personal conflicts such as neighborhood disputes, family disputes and conflicts caused by identity and attitude. At the same time, the book defines group interest disputes as bilateral or multilateral confrontational actions in the form of clusters, aiming at the common material interests of a particular group being damaged and expected to achieve. At present, the means and objectives of Shanghai community mediation organizations in dealing with group disputes are, to a large extent, in accordance with the requirements of the superior government, “to control conflicts in advance, to resolve conflicts in the budding state, to calm conflicts in the local area, to dissolve the antagonistic feelings of the opposing parties, and to reduce the public’s behavior towards the government.” The reason why the government attaches great importance to collective disputes is that, compared with other types of conflicts, such disputes involve a large number of people and one side of the group has a common interest requirement. Once the interests are damaged, these groups can easily form temporary “interest alliances” and take collective radical or even violent actions, which seriously affect social security and stability. In order to alleviate the burden of petition departments in the government and courts on dealing with group disputes, the state strongly advocates and supports all kinds of civil non-enterprise organizations, such as people’s mediation studios named with some specific individuals, to assist judicial institutions and government petition offices in solving “collective prominent conflicts”, and emphasizes “socialization” in documents and instructions. To solve the outstanding contradictions, we must embody the responsibilities of “who is in charge, who takes responsibility”, “who is intervened, who should do his best”, and “one post and two responsibilities”. Various departments and grassroots organizations such as SOs and towns

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Concern

Smoothing

Problem-solving

Society-centred

for people

Compromising

Avoidane

Forcing State-centred Concern for matter

Fig. 3 How to deal with collective disputes in different state-society relations

should strengthen the concept of “keeping the area responsible”. They should guard the frontline, protect their area, strengthen source control and solve problems in a timely manner. So how do community organizations, as bridges between government and residents, deal with group disputes? Compared with autocratic/authoritarian (statecentered) or democratic (social-centered) countries, is people more important than matters in China’s urban area? What are the characteristics of the way through which social disputes are handled? This book incorporates different national forms into Blake and Mouton’s five models of conflict management to analyze the differences in state-society relations, especially in today’s state-led conflict management in China (see Fig. 3). It can be seen that the more authoritarian countries tend to use coercive means, pay more attention to matters and ignore human emotions in order to suppress conflicts; on the contrary, the more democratic countries pay more attention to human feelings, pay attention to people’s satisfaction with conflict management rather than just eliminating conflicts, and try to use the “problem-solving” approach with a double concern for achieving win-win outcome. China’s state-led conflict resolution is characterized by a mix of people and things of dual concern. It has its own characteristics to adopt the position between coercion and problem solving. The reason for this is that the current collective disputes often occur in the form of sudden, violent and hard to manage, the government has great difficulty in controlling and dealing with them, and ultimately the governments or mediation organizations have to adopt administrative means other than the law to solve them. In China, the limited role of law in such conflicts is determined by the characteristics, social structure and realistic background of such disputes. Firstly, the legal relationship of group conflict is complex, the laws and regulations are not clear, and the policy is strong.

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Secondly, the collective conflict involves many people and interweaves many contradictions and problems. The reasonable demands of the majority and the unreasonable demands of the minority may be mixed in the conflict. The excessive actions of the majority are illegal acts with the minority. If not handled properly, it will easily lead to a series of new or even more serious conflicts, which will lead to the expansion of events and seriously affect social harmony and stability. The mentality of “law does not blame the masses” has been sharply enlarged. It is difficult to blame the masses and deal with such disputes by law alone. Thirdly, in Chinese society, the concept of “making no trouble, with no solution; making small trouble, with small solution; making big trouble, with big solution” is deeply rooted in the people’s hearts. And it does show a certain usefulness in safeguarding rights, but makes it difficult for the law to play a sufficient binding role and not enough as a criterion for judgment. Finally, from the perspective of the Party-state, even if disputes enter the due proceedings, because it takes more time, it cannot achieve the primary goal of dealing with group conflicts—to quickly settle disputes and maintain social stability. And because the judicial process is often influenced or interfered by the local party and government, even if the court makes a decision, it may also be difficult to implement. Therefore, the court may subjectively avoid such disputes and seek the consent of the local party and government before handling or accepting them. The most common way is to “turn them into zero” and turn them into “series of cases”. Therefore, the parties involved in collective conflicts are also more willing to resort to power organs such as the Party and government, the People’s Congress and the public security other than the courts (Xu 2008: 187). Based on the further classification of group disputes in the second chapter, we can see the conflicts of different levels and influence, and the differences in the ways

Concern

Smoothing

Problem-solving

General conflict

for people

Compromising

Avoidane

Moderate conflict

Forcing Serious conflict Concern for matter

Fig. 4 China’s state-led collective interest dispute resolution

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of handling and resolving them by the government or mediation agencies. Figure 4 shows three types of disputes in China’s state-led mode. Compulsory measures are often used in countries with serious conflicts or mediation agencies, mainly because larger conflicts can cause crises and make it difficult to control the situation, seriously affecting national security and social stability. Under such circumstances, the government is highly concerned about and may be fully involved in the incident, even using the army, armed police and public security to help settle disputes and stop their deterioration. Of course, the government would be very cautious and careful when using this way. While moderate conflicts or serious conflicts gradually ease, the degree of government involvement will be reduced or totally non-intervention. The courts, people’s mediation agencies or social organizations will also turn their attention from concerns to the dimension of people and adopt means of compromise and conciliation, but it is not excluded that coercion may still be used when necessary. For general conflicts, the participation and involvement of the government is less, and it is generally left to the pluralistic people’s mediation agencies and social organizations to deal with and solve them.11 On the one hand, it greatly alleviates the burden of the government, and the pursuit of “win-win” goal of mediation agencies makes them pay attention to the settlement of disputes as well as the feelings of people and use “problem solving” and “compromise” methods.12 The fundamental reason for the differences in the ways of handling disputes is the premise for the state to ensure the stability of the regime and economic development. Advocating the diversified development of social organizations is only a means and means of governance, and the ultimate goal is to achieve the “win-win” outcome of leading and pluralistic coexistence.13 When the government’s own interests are challenged, the other party of the conflict may initiate group petitions, demonstrations and other mass incidents that are not conducive to social stability, or even violent and harmful, which will inevitably arouse the government’s great vigilance, and may abandon moderate means and adopt compulsory means to resolve the conflict. It should also be pointed out that different types of group conflicts have different ways of management and settlement. Because when the conflicts between collective identity and collective attitude are more based on people’s ideology and views, it is more difficult for the two sides to completely change their attitudes and reach consensus through the platform of dialogue than the conflicts of collective interests. In this case, even in authoritarian countries, compromise and pacification would be an ideal and more effective way to resolve disputes, because the result of coercion cannot solve contradictions, and temporary repression can only lead to the outbreak 11 However, the government will still attach great importance to group disputes to prevent their expansion and intensification, but only in dealing with non-direct intervention. 12 Here, the analysis of conflict resolution is only from the point of view of the government or mediation agencies. As for the differences in understanding and feeling of the parties to the conflict, it will be explained through specific cases. 13 This is also the key idea and consistent goal of the actual departments, SOs and staffs of Lin Yue People’s Mediation Studio of Shanghai community dispute settlement, and the respondents in Shanghai.

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of more serious social conflicts. The collective interest disputes originate from the contradictions and inconsistencies in economic or material relations between the two parties. It is easier to make concessions by means of material economic compensation to reach consensus. Accordingly, compromise and coercion are more effective ways of resolving conflicts quickly. When the way of litigation is blocked, the introduction of rules and mechanisms outside the law can better resolve disputes (Hu 2011b: 34–59). In fact, the most important way to solve group disputes outside litigation is mediation, which is a typical informal system relative to justice (Jia 2002; Clarke 1997; Wall 1990: 109– 119). The forms of mediation dealing with group disputes include people’s mediation, administrative mediation and “grand mediation” which appeared in recent years (Wall et al. 2000; Hu 2011a).14 Read and Michelson (2008: 737) believe that one of the social characteristics of Asian countries is to establish a large number of state-sponsored grassroots institutions to mediate social disputes (Wall and Blum 1991). For example, the people’s mediation is under the responsibility of the judicial administrative organs in various places, besides the traditional mediation of villagers’ committees (VCs, cunmin weiyuanhui) and RCs, the mediation committees at the township and street levels have been developed, and the administrative authority of the people’s mediation has been strengthened. Most of the people’s mediation work is directly supported by local party and government leaders, and has more abundant political resources. Therefore, in dealing with and resolving collective disputes, social organizations, as mediation agencies, although they are civil non-enterprise units in law and do not belong to government departments, they receive and convey state policy directives and assume the responsibility of government in resolving community disputes, which to a large extent exerts pressure on people’s mediation agencies to solve social conflicts. When confronted with various kinds of collective disputes, mediators in urban communities often focus on settling disputes so as to achieve the designated task of stabilizing communities and resolving contradictions, but this will make it difficult for them to maintain the “neutrality” of arbitrators. In describing Chinese community mediation in terms of Wall and Blum’s words, “neutrality” does not exist for Chinese mediators, whose goal is to eliminate disputes and ease the anger of the parties to the conflict (1991: 9). In fact, although Chinese community dispute mediators tend to be biased towards the government, they often use official words and concepts to “educate” residents compulsively and persuade them to accept economic compensation, compromise with the government, tolerate and reduce disputes more for the stability of the community (Diamant 2000). But the mediators are also in the mind.

14 Grand

mediation mechanism of social disputes refers to the combination of people’s mediation, judicial mediation and administrative mediation, in addition to the litigation mediation of the people’s court. The third party intervenes in the contradictions and disputes between the parties, solves the disputes through mediation and reasoning, and reaches an agreement. This is a mechanism for all walks of life to participate in the consultation and settlement of civil disputes. It is the expansion, institutionalization and standardization of people’s mediation.

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There is a scale, they will also consider their position from the perspective of the residents, within the scope of the policy, try to win as much economic compensation as possible for the residents.15 It is undeniable that the “compromise-education-compulsion” mediation in Chinese urban communities is of a strong stability nature in resolving the conflicts between residents and the government, rather than the dispute settlement in American communities, which pays more attention to the satisfaction of the parties to the conflict with the results of the settlement, and more attention to the opportunities for citizens to express themselves (Wall and Blum 1991: 9). Especially for some major disputes, residents in American communities generally go directly to the courts instead of seeking the intervention of third parties. Baumgartner (1988) explained this in The Moral Order of a Suburb that community residents are required to accept third-party mediation, usually with a lower level of social status and education than mediators themselves, while Wall and Blum (1991) made the same discovery when they studied community mediation in Beijing. The residents of many old communities in Shanghai are mostly middle-aged and elderly people and social vulnerable groups. They have low income, low level of education, are in the middle and lower levels of society, and have a great dependence on the government. When faced with problems, they have the cognitive concept that the government should “take care of us” and mediators should take the initiative to intervene and provide assistances and services. China’s government and streets also regard mediation and stability as their major responsibility in order to resolve disputes in a “peaceful” way (Diamant 2000; Abu-Nimer 1996). Generally speaking, the Chinese government attaches great importance to all kinds of social disputes, with maintaining social stability and harmony as its primary objective, and advocates diversified ways to resolve conflicts. Besides legal channels, the Chinese government participates in the dispute resolution by establishing people’s mediation agencies in the form of government purchasing services from social organizations. People’s mediation institutions are under the leadership or guidance of the government and the people’s courts, and are funded by the government in terms of resources. It is also a kind of support and promotion of the state to the pluralistic people’s mediation organizations.16 This also leads to the tendency of the mediation agencies to favor the government when dealing with group disputes, not only 15 From interviews with mediators in Shanghai communities, we can see that mediators also understand and sympathize with the situation of the people when dealing with community conflicts, and strive for more compensation for them as far as possible within the scope of the policy, which largely depends on the results of discussions and negotiations between mediators and government departments. 16 In September 2002, the General Office of the Central Committee of the CCP and the General Office of the State Council transmitted the Opinions of the Supreme People’s Court and the Ministry of Justice on Further Strengthening the people’s mediation work in the new period. The Supreme People’s Court and the Judicial Department formulated relevant judicial interpretations and regulations respectively, which brought the development of people’s mediation into a new period.

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to maintain the harmony and stability of the community and calm the residents’ emotions but also to adopt mandatory preaching and orders to the residents to make concessions and accept the mediation results.

6 Summary This chapter reviews the literature on social conflicts and the relationship between the state and society, emphasizes the importance and shortcomings of various theoretical explanations of the relationship between the state and society, and tries to put forward a better theoretical model to explain the interaction between the Chinese government and social organizations through research. Generally speaking, in the current period of social contradictions in China, the relationship between the state and society is in a state-led mode of diversified development of social organizations. Under the premise of centralization of government power, social organizations are empowered to a certain extent, giving them a certain space for independent development and autonomy. So, what kind of historical development has Chinese people’s mediation gone through? Why do people prefer mediation when they encounter disputes? What is the current situation of people’s mediation in Shanghai? How to establish a mechanism to resolve group disputes so as to better deal with and alleviate the frequent social contradictions in order to achieve the goal of building a harmonious society? The next chapter will focus on discussing and answering these questions.

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Wall, J. A., Blum, M., & Jin, D. J. (2000). Response to Diamant’s ‘conflict and conflict resolution in China’. Journal of Conflict Resolution, 44, 547–551. Wang, M., & Wang, S. (Eds.). (1997). Xiangtu Shehiu de Zhixu, Gongzheng yu Quanwei (Order, justice and authority in rural society). Beijing: China University of Politics and Law Press. Weber, M. (1997). Economy and society (Vol. 2) (R. Lin, Trans.). Beijing: Commercial Press. White, G., Howell, J., & Shang, X. (1996). In search of civil society: Market reform and social change in contemporary China. Oxford: Clarendon Press. Williams, B. A., & Matheny, A. R. (1985). Knowledge vs. NIMBY: Assessing Florida’s strategy for siting hazardous discourse. In N. J. Vig & M. E. Kraft (Eds.), Environmental policy in the 1990s: Toward a new agenda. Washington, DC: CQ Press. Williams, B. A., & Matheny, A. R. (1995). Democracy, dialogue, and environmental disputes: The contested languages of social regulation. Yale University Press. Xiong, Y. (2006). Renmin tiaojie de shehiuhua yu zai zuzhihua: Dui Shanghai Yangboshou gongzuoshi de ge’an fenxi (A case study of the socialization and reorganization of people’s mediation at Yang Boshou Studio). Shehui (Society), 6, 95–116. Xu, Y. (2000). Shequ fazhan lun (On community development). East China University of Science and Technology Press. Xu, X. (2008). Jiufen yundong de lilun kuangjia (The theoretical framework of dispute movement). Collected Papers of the Symposium on Harmonious Community Construction: Property Rights and Good Governance (pp. 177–191). Beijing Renmin University and the Center for Harmonious Community Development (GOCO). Xu, Y., & Chen, W. (2002). Zhongguo Chengshi Shequ Zizhi (Urban community autonomy in China). Wuhan Publishing House. Yi, K., & Wang, Y. (2001). Gongmin shehui de xingqi yu zhengfu shanzhi (The rise of civil society and good governance of the government). Zhongguo Gaige (China reform), 6, 38–39. Ying, X. (2004). Zuowei teshu xingzheng jiuji de xinfang jiuji (Relief of letters and visits as special administrative relief). Faxue Yanjiu (Legal Research), 3, 58–71. Ying, X. (2007). Caogen dongyuan yu nongmin qunti liyi de biaoda jizhi—Sige ge’an de bijiao yanjiu (Grassroots mobilization and the expressive mechanism of farmers’ collective interests—A comparative study of four cases). Shehuixue Yanjiu (Sociological Research), 2, 1–23. Ying, X., & Jin, J. (2000). Jiti shangfang zhong de ‘wentihua’ guocheng (The problematization process in collective appeal). Qinghua Shehiuxue Pinglun (Tsinghua Sociological Review). Xiamen: Lujiang Publishing House. You, Z. (2006). Jiti xingdong heyi chengwei keneng—dui yiqi jiti shangfang, jingzuo shijian de ge’an yanjiu (Why collective action is possible—A case study of a collective appeal and sitting incident). Xuehai (Academia Bimestrie), 2, 33–43. Yu, K. (2000). Zhili yu Shanzh (Governance and good governance). Social Sciences Literature Publishing House. Yu, J. (2003a). Nongmin you zuzhi kangzheng jiqi zhengzhi fengxian—Hunan H xian diaocha (Organized resistance of farmers and its political risks—Hunan H County survey. Zhanlue yu Guanli (Strategy and Management), 3, 1–16. Yu, J. (2004). Dangqian nongmin weiquan huodong de yige jieshi kuangjia (An interpretative framework of current peasant rights defense activities). Shehuixue Yanjiu (Sociological Research), 2, 49–55. Yu, S. (2005). Renmin tiaojie de kunjing yu fazhan tujing tanxi (An analysis of the dilemma of people’s mediation and the ways of development). Shangqiu Shifan Xueyuan Xuebao (Journal of Shangqiu Normal University), 6, 132–134. Yu, J. (2006). Jiti xingdong de yuandongli jizhi yanjiu—Juyu H xian nongminn weiquan kangzheng de kaocha (Research on the motivation mechanism of collective action—Based on the investigation of farmers’ rights defense in H County). Xuehai (Academia Bimestrie), 2, 26–32. Yu, J. (2008). Dangqian nongcun huanjing wuran chongtu de zhuyao tezheng ji duice (Main characteristics and countermeasures of current rural environmental pollution conflicts). Shijie Huanjing (World Environment), 1, 58–59.

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Yu, Z. (2003). Shehui fencing xinzoushi yu xinzhengzhi jumian de xingcheng (New trend of social stratification and formation of new political situation). Nanjing Xingzheng Xueyuan Xuebao (Journal of Nanjing Institute of Administration), 2, 44–49. Zhang, H., Yong, X., & Jiquan, X. (2000). Zhongguo Nongcun Cunji Zhili (Rural village governance in China). Central China Normal University Press. Zhang, L. (2005). Yezhu weiquan yundong: chansheng yuanyin ji dongyuan jizhi—dui beijingshi jige shequ ge’an de kaocha (Homeowners’ rights defense movement: Causes and mobilization mechanisms—Examination of several community cases in Beijing). Shehiuxue Yanjiu (Sociological Research), 6, 1–24. Zhao, D. (2007). Guojia, Shehui Guanxi yu Bajiu Xueyun (State, Social Relations and the 89th Beijing Students’ Movement). Hong Kong: Chinese University Press.

Chapter 4

Historical Background and Development Process of Dispute Resolution in China

This chapter mainly introduces the historical development of China’s social dispute resolution, emphasizing the important role of people’s mediation in China’s conflict resolution. At the same time, it introduces the history and current situation of Shanghai People’s Mediation Organization and the general situation of Lin Yue People’s Mediation Studio as a diversified dispute mediation organization.

1 The Background and Historical Development of Mediation One of the forms of conflict resolution is mediation, the concept of mediator in this position originates from Latin mediare, which means mediation without bias to either side. Although the origin of the concept of mediation has been difficult to trace, the earliest academic work on mediation was Johann W. Textor’s book on the Necessary Guidelines for International Mediation in 1680 (Lind 2007). The civil mediation has a long history in China. It is an ancient and traditional way of conflict resolution. Its source can be traced back to Confucian culture. The traditional mediation system is largely influenced by Confucian culture. Confucianism emphasizes reconciliation, concession and non-litigation, and harmony is the ideal state and realm. Once harmony between people is destroyed, the best way to restore it is through compromise and persuasion (Cohen 1966). The structural feature of Chinese traditional society is that the family and the state are isomorphic, the father is the king, the king is the father, and the country is one. This feature does not advocate the use of confrontational methods or litigation for any contradictions and disputes, but emphasizes on encouraging civil mediation, which is harmless, conducive to the restoration of relations and social stability. “Ancient Chinese sought order and harmony in the whole natural world and regarded it as the ideal of all human relations” (Liang 2002).

© Shanghai People’s Publishing House 2020 J. Hu, Disputes Resolution in Urban Communities in Contemporary China, https://doi.org/10.1007/978-981-15-8644-6_4

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Since the West Zhou Dynasty (Yu and Liu 2008), China’s civil mediation system has been in existence. In the official system, there were “mediators”—“Adjudicating thousands of people’s difficulties and make it harmonious.” Who were especially responsible for mediation affairs. During the Qin and Han Dynasties more than 2,000 years ago, the mediation system in the government developed into a mediation mechanism of “governing affairs by township officials”. The mediation system beyond the lawsuit was stipulated below the township level, and “qiangfu” were set up in the townships, pavilions and interiors to undertake the two duties of “hearing lawsuits” (i.e. mediating civil disputes) and “collecting taxes”. The Tang Dynasty inherited and developed the Qin and Han Dynasty system more than 1300 years ago. The rural civil disputes and lawsuits were mediated by officials in the Street, Village and Lane beforehand. Only when the mediation failed, could the lawsuit be brought to the county Court. This made the mediation become the preprocedure of lawsuit and realized the integration of administration and justice, and the county magistrate was the judge. In the Ming Dynasty 600 years ago, the Daming Law stipulated that “petition pavilions should be set up in all states and counties. Every civil case would be managed in this pavilion.” At this time, mediation has risen to the level of legal norms. Up to the Qing Dynasty more than 300 years ago, the Rules of the Ministry of Household Affairs stipulated that the patriarch had the power to investigate and change the good and bad of the clan, including the right to mediate disputes within the clan. In the Qing Dynasty, the Bao-Jia system was implemented at the grassroots level in the countryside, with platforms, interiors and corrections, responsible for public security, household registration, taxation and mediation of civil disputes.1 In the period of the Republic of China, a very important change was the regularization and legalization of civil community mediation (Huang 2005). The law on the Implementation of District Autonomy in 1938 and the law on the Implementation of Township Autonomy both stipulate that mediation committees should be set up in districts, townships and towns. Their members should be impartial persons with legal knowledge and high morality and be elected from among the citizens of their districts, townships and towns. But there are also informal civil mediation. Fei Xiaotong also mentions rural mediation in “rural China”: The so-called rural mediation is actually an educational process… Almost every time a very talkative squire spoke. His formula always scolds both sides who are mediated. ‘It is a shame on our village! You don’t admit you are wrong, go home! Then there is a lesson. Sometimes I even clap the table to lose my temper. He told them what he thought he should. This tactic is really effective, the two sides often “reconcile” and sometimes have to punish him for a dinner (Fei 1998: 56). Clan mediation is also one of the important ways to resolve civil disputes in China. Many scholars pointed out that in the late Qing Dynasty before the modernization, regardless of whether there were explicit legal provisions or not, the local governor in charge of litigation often entrusted the cases to the civil people (gentry, elders or 1 Zhentong

Lin, “Sifa ADR tanjiu yu fayuan fushe tiaojie zhidu goujian: Cong hexie shehui de shijiao chufa”, 18 July 2011, http://www.dyzxw.org/html/article/201107/18/73985.shtml, accessed 13 July 2019.

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people enjoying popular expectations) for mediation, or personally mediated. More disputes have been settled through folk mediation among clans, guilds and neighbours before resorting to the government.

Another way of reconciliation is through mediation between neighbors and friends. Huang (2001: 197) elaborated on the study of the customary law of the Qing Dynasty: “Wang Huizu clearly distinguished the judge’s “adjudication” from the mediation in the civil village community through relatives and friends in the book Hypothesis of Learning and Governance: despite adjudication is based upon law, mediation is based on affection and love such as the reconciliation between friends and relatives. The rules of law is absolutely divisible, but the sentiment is not so clear that can be divided between right or wrong. What he meant was that judges decided by law but disputes were mediated by their neighbours and relatives rather than judges. It is best to settle disputes out of court through affection between relatives and friends without hurting feelings. But when we go to court, we only have to act impartially and judge cases according to law so as to distinguish right from wrong. But the result is that the negative side is mostly resentful, and the two sides have long been hostile to each other and do not interact with each other. It is better to mediate by relatives and friends in order to settle disputes in harmony. Thus, in the course of thousands of years of historical development and evolution, civil mediation has gradually formed three main modes: semi-official “township mediation”, “clan mediation” within tribal clans and “neighbor-friend mediation” prevalent in society. In addition, there are guild mediation, community mediation and lawyer mediation (Wang 2005). The greatest characteristic of these mediation forms is that under the state-led system, civil mediation and official judicial proceedings are organically combined, showing a semi-official nature. The modern people’s mediation system sprouted from the red regime during the agrarian revolution in China in the early 20th century and took shape in the period of anti-fascist aggression and resistance against Japan. On the basis of inheriting and carrying forward the tradition of Chinese civil mediation, after experiencing the practice of the new democratic revolution and socialist construction, it has become a democratic and legal system with Chinese characteristics.2 At that time, peasant associations opposing the feudal land system under the leadership of the CCP and local political organizations established in some areas set up mediation organizations, mainly dealing with disputes between farmers. During the Anti-Japanese War, there were relatively complete mediation organizations in the villages of the ShaanxiGansu-Ningxia Border Region, Shandong Anti-Japanese Base Area, Shanxi-ChaharHebei Border Region and Central Jiangsu Region, mainly by means of democratic autonomy, the peasants themselves solved their disputes and mediated the conflicts between the peasant associations. In order to distinguish it from the civil mediation in history, the mediation organization at that time was called the People’s Mediation 2 Settlement of social conflicts is one of the state powers. The current people’s mediation committee

is a mass autonomous organization established in accordance with the Constitution. Through democratically electing people’s mediators, the people participate in mediation activities, and realize the tasks of self-ownership, self-education, self-service and self-management.

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Committee (renmin tiaojie weiyuanhui), which has been used up to now. During this period, people’s mediation combined Confucianism with Mao Zedong Thought, and had a negative attitude towards litigation. It relied heavily on the principles of “criticism-education” and “self-criticism” to solve conflicts. Contradictions among the people are solved by democratic criticism, persuasion and education rather than by coercion and repression. At that time, a large number of civil disputes have been solved through people’s mediation, which shows the cultural continuity of the development of people’s mediation. After the founding of New China, the people’s mediation system, as an important part of the judicial system construction and the socialist grassroots democratic political system construction, is a highly concerned task of the CCP and the government. In 1950, Premier Zhou Enlai specifically instructed, “People’s judicial work must also deal with civil disputes… We should try our best to adopt the method of mass mediation to reduce people’s disputes” (Wang 2005). After the Second National Judicial Work Conference in 1953, people’s mediation organizations began to be improved step by step under the leadership of grass-roots political organizations in districts and townships below the county level. In 1954, the State Council of the Central People’s Government promulgated the Provisional General Principles for the Organization of the People’s Mediation Committee, which unified the nature, name and establishment of the people’s mediation organizations nationwide, standardized the tasks, working principles and activities of the people’s mediation, and clearly stipulated that the people’s mediation committee was a self-governing organization of the mass nature. People’s mediation must be based on law and social morality to settle disputes and abide by the three principles of equality, voluntariness and non-deprivation of litigation rights. The promulgation of the General Principles is an important milestone in the history of the development of the Chinese people’s mediation system, which marks the formal establishment of the people’s mediation system in New China. After the reform and opening up, people’s mediation was formally included in the Constitution in 1982. Article 111, paragraph 2, of the current Constitution stipulates that “the RCs and VCs shall set up people’s mediation committees…mediate civil disputes”. Thus, the legal status of people’s mediation is established in the Constitution. Thereafter, laws and regulations such as the Civil Procedure Law, the Organic Law of Villagers’ Members, the Organic Law of the Resident Committee, the Inheritance Law, the Marriage Law and the Organic Regulations of the People’s Mediation Committee have clearly stipulated the people’s mediation. Article 16, paragraph 1, of the Civil Procedure Law stipulates that “the people’s mediation committee is a mass organization to mediate civil disputes under the guidance of the grassroots people’s government and the people’s court”. Here, people’s mediation, as an important form of civil mediation and the system of solving disputes among the masses, belongs to the category of social autonomy. The promulgation of the Organizational Regulations of the People’s Mediation Commission in 1989 is a watershed in the history of the development of people’s mediation.3 3 See

Appendix J, The Organizational Regulations of the People’s Mediation Commission.

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Because the previous people’s mediation was based on policies and ideology, the 1989 Regulations stipulated three principles of people’s mediation: the principle of law, the principle of voluntariness and the principle of unrestricted litigation. From this, we can see the difference between people’s mediation and general civil mediation. The people’s mediation system has statutory organization, procedures and system provisions. Then, in September 2000, the Supreme People’s Court promulgated Some Provisions on Trial of People’s Mediation Agreement Cases, and in September 2002, the Ministry of Justice issued Some Provisions on People’s Mediation Work which made new provisions on the organizational form of mediation. People’s mediation committees may be established in the following forms: rural VCs, people’s mediation committees set up by urban (community) residents’ committees, people’s mediation committees set up by towns and streets, people’s mediation committees set up by enterprises and institutions and the regional and industrial people’s mediation committees set up according to their needs. This goes far beyond the scope stipulated in the Organizational Regulations of the People’s Mediation Committee promulgated in 1989, and thus forms an organizational form that is based on the residential (village) committee and the street (township) committee, supplemented by enterprises and institutions, mass organizations, industrial and regional people’s mediation committees. Four levels of work should be formed: street (town) mediation committee, residential (village) mediation committee, mediation team and mediator. China’s current mediation system mainly consists of three parts: court mediation; administrative mediation, and people’s mediation. The so-called people’s mediation, also known as extra litigation mediation, refers to persuading, educating and persuading the parties to civil disputes under the chairmanship of the mediation committee, on the basis of national laws, laws and regulations, policies and social morality so as to promote mutual understanding, compromise among the parties to the dispute and negotiate equally. Consequently, it is a kind of mass self-government activity to reach agreements and eliminate disputes voluntarily. People’s mediation is an important part of the current mediation system and a unique system in China’s legal system construction. It has been continuously improved and developed in the practice of socialist construction and has important significance for maintaining social stability and realizing mass autonomy. The advantages of people’s mediation in the new era lie in its close proximity to the masses, flexible and diverse working methods, rational working methods, conforming to China’s national conditions and fine traditions, making the parties not only exempt from litigation but also save a lot of manpower and material resources. Through regular investigation of social conflicts, disputes can be resolved in a budding state and the foundation of social stability can be strengthened. Especially in order to build a harmonious society, it is very important and practical to improve the mediation mechanism of contradictions among the people. In the early days of the founding of New China, dispute resolution was a kind of political behavior, and mediation was the manifestation of the Party’s ideology in practice. “Mediation has been developed as a tool of mobilization, linking dispute resolution with communists’ attempts to reconstruct society and adapting dispute

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resolution policies to the needs of socialist construction” (Qiang 2001: 312). Especially from the historical development of people’s mediation after the founding of the People’s Republic of China, we can realize that people’s mediation is a part of the construction of the network of state social security organizations, a further completion of the network of the ruling power organizations of the CCP, and a basic tool for the ruling party to directly govern society. But in the transitional period of Chinese society, due to the impact of market economy, the traditional moral and ethical norms, interpersonal relationship norms and values and beliefs in China have changed. Various social conflicts have increased greatly, and the subjects of conflicts are becoming more and more diverse. At present, China has not yet formed a western civil society, and social organizations are not fully developed. The types of civil disputes are also diversified, and the formation of disputes has changed from the contradiction between individuals to the contradiction between citizens and legal persons, between social organizations and between citizens and the government. In the transformation from unit person to social person, on the one hand, the formation and development of community has been promoted, and the social relationship based on contract form has gradually replaced the social relationship based on consanguinity, geography or unit. The change of interpersonal relationship from acquaintance society and local society to independent stranger society poses a new challenge to the traditional people’s mediation. The results of the Research on Conflicts among the People under the New Situation led by the Central Organization Department show that in recent years, conflicts among the people in our country have shown new characteristics of “increasing mass incidents”, “increasing antagonism”, “prominent conflicts of interest” and “more complex and changeable development trend”. In recent years, more and more mass incidents have taken place in China, the scale of which has been expanding, the form of expression has become intense, and the consequences and effects have become more and more serious.4 Since 1997, the number of mass incidents in China has soared dramatically. In 1993, there were more than 8,700 mass incidents. In 1995, there were more than 11,000 mass incidents. In 1997, there were more than 15,000 mass incidents. In 1999, there were more than 32,000 mass incidents. From January to September 2000, there were more than 30,000 mass incidents.5 Since 1997, the number of mass incidents in China has soared dramatically, and more and more people have participated, and tens of thousands of people have been a common phenomenon. According to the 2005 Blue Book of Society, the number of mass incidents involving more than 100 people in China increased from 10,000 to 60,000 from 1993 to 2003, and the number of participants increased from about 730,000 to about 3.07 million, with an average annual increase of 17%. According to the “Looking East” report, in 4 It

is worth noting that the survey organized by the Institute of Political and Legal Affairs of the Central Committee is consistent with this conclusion; see Quntixing shijian yanjiu zhuanji (The Collection of Research on Maintaining Social Stability) (Beijing: Law Publishing House, 2001). 5 Research team of Fujian Public Security Department, “Guanyu jianli jianquan quntixing shijian yingdui jizhi de diaocha yu sikao” (Investigation and Reflection on the Establishment and Perfection of Response Mechanisms to Mass Incidents), Gong’an Yanjiu (Public Security Research), 2010 (1), pp. 23–27.

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less than two months from 1 July to 20 August 2003, 19,000 people and 347 groups petitioned in front of the Beijing Municipal Commission, more than 10,000 people and 453 groups petitioned in front of the Commission for Discipline, an average of more than 100 people a day, up to 152 people a day at most. It has set a new historically high record since the reform and opening up.6 The deep-seated reasons for the sharp increase of collective disputes lie in the serious imbalance of the distribution pattern of social interests, the complexity of social conflicts, the increasingly prominent social injustice and corruption of rights in China during the transitional period, which leads to frequent occurrence of various political and social problems, as well as people’s distrust of the grassroots government which is prevalent in corruption and bureaucracy. But at the same time, in the face of the emergence of collective disputes, governments at all levels are also actively trying to reduce the emergence of collective incidents, and through mediation, arbitration and other ways to properly solve the incident and to prevent the intensification of conflicts as far as possible. The timely and effective resolution of social conflicts and the maintenance of social stability have become an important issue concerning the long-term stability of the country and the consolidation of the ruling party’s status. Most of the problems of mass petitions and petitions are civil disputes, which can be solved through people’s mediation. But now the people’s mediation work has also encountered new situations and problems, which are not compatible with social development. It is highlighted that the proportion of the total number of contradictions and disputes mediated by the people’s court and the number of civil cases accepted in the first instance has declined year by year, from 17:1 in 1980 to 1:1 at present. At the same time, the process of mediation is also greatly intervened by the government. To some extent, it will affect the neutrality and objectivity of the mediation process, and the results of mediation may not really solve the root causes of disputes and lead to the occurrence of re-conflict. This is also the dilemma and limitation of non-litigation dispute resolution. The current surging tide of petitions is closely related to the inadequate role of people’s mediation. Therefore, to promote the reform and development of people’s mediation is the objective demand of our society to seek development and progress in the real situation.

2 The History and Current Situation of People’s Mediation in Shanghai The development of community mediation in Shanghai is relatively perfect. The government also actively carries out the reform and exploration of the people’s mediation work and constructs professional, standardized and socialized people’s 6 “2003

nian zhongguo zaoyu xinfang hongfeng, xin lingdaoren mianlin feichang kaoyan” (China was confronted with a very severe petition peak, new leaders are faced of unusual challenge in 2003), 8 December 2003, http://news.sina.com.cn/c/2003-12-08/12571287932s.shtml, accessed 23 July 2019.

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mediation team. Professionalization means that people’s mediation work should have legal professional background and specialize in people’s mediation work. Mediators should have legal professional education and rich mediation experience. And socialization is to cooperate with social organizations, social institutions and social forces to resolve conflicts and disputes. As an administrative department, the government should not be in the first line of mediating conflicts but should adopt various means such as economic, administrative and social forces to actively support and support the people’s mediation work in order to form good social norms and self-discipline.7 On June 29, 1995, Shanghai “Pudong New Area Social Contradictions Mediation Center” was born, which is a professional institution accepting the responsibility of social contradictions mediation.8 In 1996, according to the Notice of the Ministry of Justice on Further Strengthening the Construction of People’s Mediators’ Association (No. 074, June 6, 1996), the Party-state actively promoted the establishment of provincial people’s mediators’ associations and the birth of Shanghai People’s Mediation Association.9 As mediation has the function of remedying judicial limitations in a country ruled by law, it can also provide space for the development of civil society norms. People’s mediation, as an important democratic legal system of self-education, self-management, self-service and self-restraint provided by the Constitution and law, should be self-governed by the masses. With the change of the concept of the administrative department, its main task is to provide financial support to the people’s mediation organizations, strengthen their support, enhance the autonomy and self-discipline of the people’s mediation organizations, and create favorable conditions and environment for their work. Shanghai has also taken the lead in implementing the People’s Mediation Agreement Audit System (2000), the Chief People’s Mediator System (2001), (Wen 2002), the District People’s Mediation Committee and the People’s Mediation Studio (2003).10 Particularly noteworthy is the policy of establishing people’s mediation studios at the street level in 2003, which also stipulates the measures of purchasing 7 The

Shanghai Municipal Government actively promotes the development of community people’s mediation work, and pays attention to improving the mediation network of social conflicts at the grassroots level of district, county, street (township) and residential (village) committees, establishing community people’s mediation tribunals, comprehensively implementing the system of chief people’s mediator, and effectively improving grassroots organizations’ ability to resolve conflicts among the people; see “Shanghaishi guomin jingji he shehui fazhan dishige wunian jihua gangyao” (Outline of the tenth five-year plan for Shanghai’s national economic and social development), http://news.eastday.com/eastday/zfgb/jhgy/userobject1ai14893.html, accessed 13 March 2019. 8 “Shanghai pudong xinqu chuangban shequ maodun tiaojie zhongxin” (The establishment of Community Conflict Mediation Center in Shanghai Pudong New Area), 16 July 2007, http://news. sina.com.cn/c/2007-07-16/161713458451.shtml, accessed 6 August 2019. 9 “Sifabu guanyu jinyibu jiaqiang renmin tiaojieyuan xiehui jianshe de tongzhi” (Notice of the Ministry of Justice on further strengthening the construction of the association of people’s mediators), 6 June 1996, http://www.110.com/fagui/law_354260.html, accessed 12 March 2019. 10 The examination and verification of people’s mediation agreement was first implemented in Yangpu District, see “Heqing heli huajie fenzheng, Shanghai quanmian tuixing qingshanghai xing’an weituo renmin tiaojie” (Reasonable and rational dispute resolution: Shanghai fully promotes the Commissioning of People’s Mediation in light injury criminal cases), 11 November 2008, http://www.legaldaily.com.cn/index_article/content/2008-11/11/content_978744.htm, accessed 12

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Table 1 Basic situation of lawyers, notarization and mediation in major years of Shanghai Index Year

1990

2000

2005

2006

2008

2009

People’s mediation work Full-time judicial assistant

386

416

608

736

683

613

People’s mediation committees (10 thousand)

1.18

0.89

0.62

0.59

0.60

0.60

Mediators (10 thousand)

5.50

3.55

3.58

3.13

3.01

2.91

Number of civil disputes mediated (10 thousand)

8.11

6.37

8.15

9.09

15.92

18.10

Source Shanghai Statistical Yearbook (2009) [SSB]

government services for some studios and implementing the operation of associations, thus reconstructing people’s mediation organizations and strengthening the strength and intensity of solving disputes at the street level.11 According to the statistics of people’s mediation in Shanghai from 1990 to 2009 (see Table 1), the number of mediators and mediation committees in general shows a decreasing trend, and the number of mediation civil disputes shows an obvious growth trend after 2004, which is related to the reform of people’s mediation organization system in Shanghai: The traditional large and inefficient streets, neighborhood committees and civil mediators have been reduced accordingly, replaced by more streamlined and specialized mediation agencies and mediators (such as the current “Chief People’s Mediator”).12 With the implementation of the community system and the disappearance of the unit system, various kinds of civil disputes have emerged in local community. According to statistics, by 2006, more than 100 studios of mediation committees had been set up in 93 streets and towns of 19 districts and counties in Shanghai. There were more than 6000 full-time people’s mediators and mediation directors of residential village mediation committees in the workshops, and a professional people’s mediation team had initially formed.13

March 2019; The establishment of people’s mediation studio, see “2003 nian benshi renmin tiaojie gongzuo gaikuang”, http://www.shanghai.gov.cn/shanghai/node2314/node11019/node11036/use robject31ai844.html, 24 July 2019. 11 See Appendix D, Measures for the Administration of Government Purchase Services (Interim). 12 The implementation of Chief People’s Mediator, see “Shanghaishi sifaju guanyu zhuanfa Shanghaishi renmin tiaojie xiehui ‘Shanghai shouxi renmin tiaojie yuan tuixuan banfa’ de tongzhi” (Circular of Shanghai Judicial Bureau on transmitting the selection measures of Shanghai chief people’s mediators by Shanghai people’s mediation association), http://www.chinalaw.gov.cn/art icle/dfxx/zffzdt/200502/20050200050538.shtml, accessed 18 July 2019. 13 See “6,000 zhuanzhi ‘laoniangjiu’ weimin tiaojie, quanshi 19 ge quxian 93 ge jiedaozhen yi jianli le 100 duo ge tiaoweihui gongzuoshi” (6,000 full-time ‘mediating uncles’ mediate for the people, more than 100 mediation committee studios have been established in 93 streets and towns of 19 districts and counties in the city), 14 March 2006, http://news.sina.com.cn/o/2006-03-14/085084 36864s.shtml, accessed 8 August 2019.

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The key area of this study—Shanghai N District is in the forefront of the reform of people’s mediation in Shanghai. The construction of people’s mediation organizations in this area has developed rapidly. A working network composed of residential (village) mediation committees, 10 Street mediation committees and 1 district joint mediation committees; 3 market mediation committees; 3 property mediation committees and 1 enterprise mediation committees have been formed (Fan 2005). Since 2003, N District has organized and established J Street “Lin Yue People’s Mediation Studio”, T Street “People’s Mediation Office” and B Street “Dispute Mediation Center between Suspected Refugees”. In May 2004, J Street clearly put forward the idea of government purchasing services and signed a contract with “Lin Yue People’s Mediation Studio”, which greatly promoted the reform of people’s mediation system. The main change of people’s mediation in Shanghai is on the organizational form. The former people’s mediation committees were mainly set up in autonomous organizations such as grassroots RCs and VCs and various units. Since the establishment of “mediation studios” in the streets and towns of each district in 2003, the organizational form of people’s mediation has undergone a process of restructuring, and the studio has become the main stage and symbol of the professionalization and socialization of people’s mediation. In 2003, people’s mediation studios were set up in various streets of Shanghai to promote the professionalization, standardization and socialization of people’s mediation. In 2006, at the “Congress of Members of the Municipal People’s Mediation Association” held by the people’s mediators in 19 districts (counties) of the whole city, the members and directors of the new association were elected from the representatives of professional people’s mediators. The judicial administrative cadres have withdrawn from the municipal people’s mediation industry organizations in an all-round way, thus completely changing the previous situation that the mediation association is attached to the administrative organs. People’s mediation is one of the diversified ways to solve disputes, but it does not exclude legal proceedings. The reason why Shanghai reforms the people’s mediation is that the community people’s mediation in the city has its necessity of existence and development. Firstly, the operation of mediation needs a certain social basis, that is, the community formed by the specific identity of the region or community members. The existence of the community is the need to form a common norm and dispute settlement mechanism, and also the basis for the residents to accept mediation to voluntarily recognize their jurisdiction and abandon their litigation rights. This community is formed by the changes of life style, values and social structure. The identity and cohesion of its members are the basis for its survival. Without such a community, the survival, operation and effect of community mediation will be weakened. If a community has good social capital, the higher moral constraints and good faith members have, the better the role of people’s mediation can play in such a community. And in some communities with specific cultures and customs, the choice of conflict resolution methods varies with the residents’ different ideologies. The nature of conflict and the way to deal with it also change with the change of community characteristics to a great extent. For example, there are more identity conflicts in community conflicts dominated by foreigners than in local communities,

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and the way they deal with them is less concerned about the maintenance of interpersonal relationships, because they are more mobile and have a weaker sense of belonging to the community. Secondly, the good operation of community people’s mediation also depends on the collaboration of people’s mediation agencies with other departments and related agencies. To solve social problems, especially confrontational disputes, it is often difficult for a single department to deal with complex conflicts. To enable people’s mediation to play an efficient role in resolving community conflicts, Chinese society needs the support of the government, at least to give policy encouragement to its establishment and operation. At the same time, mediation agencies can cooperate with other judicial, public security, social workers, NGOs and other professional institutions. In this way, we can give full play to the advantages of diversified social dispute resolution mechanism. Thirdly, Shanghai is a city where community conflicts are concentrated, especially collective disputes. Table 2 shows the statistical data of civil disputes settlement in Shanghai in important years. It can be seen that in recent years, all kinds of disputes have shown an increasing trend. Until 2009, only the total number of marital and family disputes has decreased compared with the 1990s, but there are still quite a few disputes. Every year, there are more than 20,000 mediation cases, accounting for nearly a quarter of the total number of disputes mediation. Disputes that related with compensation almost doubled from 1990 to 2000, especially after 2005. Among all kinds of disputes, the most frequent one is neighborhood disputes, housing construction. And other types of disputes have also increased a lot, which is the cause of mass incidents. Especially with the development of cities, many large-scale infrastructure reconstruction projects need to remove and rebuild dangerous houses in shanty towns. These urban construction projects inevitably bring the problem of relocation and Table 2 Classification of civil dispute mediation in major years (SSB 2009) Year

1990 (%)

2000 (%)

2005 (%)

2006 (%)

2008 (%)

2009 (%)

# Marriage and family

42,426 (52.34)

19,722 (30.98)

20,074 (24.63)

22,211 (24.42)

23,500 (25)

28,000 (24.63)

Neighborhood

22,658 (27.94)

25,064 (39.38)

33,244 (40.79)

34,975 (38.46)

46,900 (49.89)

50,400 (44.33)

Compensations

1,909 (2.35)

2,483 (3.9)

4,451 (5.46)

5,594 (6.16)

14,000 (14.89)

24,300 (21.37)

Housing construction

9,671 (11.93)

10,359 (16.27)

11,341 (13.92)

11,568 (12.72)

9,600 (10.21)

11,000 (9.67)

Others

4,412 (5.44)

6,025 (9.47)

12,385 (15.2)

16,592 (18.24)

In total

81,076

63,653

81,495

90,940

94,000

113,700

Category

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demolition to urban residents. When the demolition fees do not meet the expectations of residents, there are often many contradictions and disputes, which usually involve a large number of people in a certain area. Individuals who encounter the same problems and complaints may gather to demonstrate collectively to the government (Zhang 2002). For the government, the huge petition cases and the petitioner team have brought heavy pressure to the petition department. Failure to properly handle the petitioner’s appeals will lead to the accumulation of public grievances and the radical action of the people. However, the traditional people’s mediation is inefficient, and the quality of the mediator is difficult to deal with complex conflicts, making it difficult for the parties to obtain satisfactory results. Therefore, the government usually actively advocates diversified ways to resolve the conflicts in community disputes so as to solve social conflicts more effectively and further promote economic and community development. Therefore, the development of diversified civil dispute resolution mechanism is that the state hopes to reduce the pressure of litigation mechanism and promote the rationalization and diversification of dispute resolution mechanism by developing and adding new alternative dispute resolution mechanism. This attitude and policy behavior of the state is influenced by the traditional factors of oriental legal culture including China. Mediation has a long historical tradition and extensive social foundation in China, which is consistent with the traditional cultural values of “no litigation” (wusong) and “harmony is precious”. In Chinese society, the focus of dispute resolution since ancient times is not to determine or safeguard the rights of anyone, but to identify good and evil, weigh advantages and disadvantages, find reasonable solutions to settle disputes, restore ideal harmony and order organized in accordance with moral principles. Even today, such a cultural tradition can still arouse people’s latent sense of identity. Trials are difficult and cannot comprehensively examine and evaluate all the relationships between the parties. Only the disputed legal relations can be tried and judged, and the result of the judgment can easily lead to the deepening of the estrangement between the parties. With the intensification of antagonism, it is common for relatives to become enemies, friends to become strangers and partners to become competitors after litigation. Mediation not only takes into account the focus of disputes between the two sides, but also often takes the overall relationship between them into consideration. Instead of invoking the legal norms that may lead to the breakdown of their relationship, mediation seeks reasonable solutions from the overall situation and long-term interests. It avoids and reduces the emotional harm brought to the parties by the book court. It emphasizes that in a peaceful and friendly atmosphere, the two parties understand and compromise each other, and turn the fight into silk. Through mediation, a large number of cooperative and business partnerships can survive, family and neighborhood disputes can be properly handled, which is conducive to maintaining a stable and harmonious social order. In addition, compared with the high cost and time delay of official litigation, civil mediation can flexibly adapt to social needs, and is a buffer mechanism for the release of social conflicts. The existence and expansion of diversified civil mediation mechanism enlarges people’s freedom of choice in dispute resolution. At present, the

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Chinese government advocates that the mechanism of civil mediation is becoming more and more diversified. It attaches great importance to cooperation and reciprocity. It hopes that mediation can better protect the long-term relationship and move from win-lose to win-win outcome.

3 A New Mechanism for Resolving Group Disputes: Lin Yue People’s Mediation Studio The Lin Yue People’s Mediation Studio, located in N District of Shanghai, is a civil non-enterprise organization registered in October 2004. It belongs to an independent legal person according to law.14 The mediation service purchased by J Street Government of N District is based on the resident population of the street, which is about 60,000 in total, at the standard of 2 yuan per person. So at first, 120,000 yuan are allocated to the studio every year, and now it has increased to 180,000 per year. The studio also undertakes a considerable task of dispute resolution. It has signed a people’s mediation cooperation letter with the Street Judicial Office. The studio should undertake 40% of the ordinary dispute mediation in the street every year, and the success rate needs to reach more than 95%. It needs to complete 90% of the difficult dispute resolution work and the success rate should reach more than 80%. It also needs to guide and train the neighborhood committees, mediating cadres’ skills in dealing with conflicts and disputes as well as organizing and planning activities to maintain harmony and stability in the community. 1. Collective Composition of Studios and Embedded Work Network The studio as a collective whole, Lin Yue is the legal representative of this studio and has the leading power of the appointment of studio members, wages, welfare and job distribution. In addition to Lin Yue, who is the chief mediator, the staffs of the studio also have four mediators, all of whom are recruited by the public to join the studio. The age distribution is a group of old, middle and young people. Lin Yue is a woman born in the 1930s. She has worked in community neighborhood committees all her life and is an excellent member of the CCP. The other three mediators are all born in the 1950s. One of them has served as mediator director of the neighborhood committees and has rich community work experience; the other one is the post 80s graduate from the law department. They all cooperate to give full play to the advantages of combining theory with practice to deal with all kinds of disputes. The 13 neighborhood committees in J Street are divided into five sections. The task of the five staff members in the studio is that each of them is responsible for one section, that is, the dispute mediation of three to four neighborhood committees. At the same time, each person is also responsible for a mediation team to guide its 14 Data

of N District Judicial Bureau, Basic Thoughts and Operating Modes of Establishing “Lin Yue People’s Mediation Studio” in J Street, June 2004.

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work, and to assist the neighborhood committees to carry out special arrangements, receive visitors, calls, letters and online consultants, and conscientiously answer and guide in accordance with relevant policies to help eligible applicants contact legal aid. Since the registration of Lin Yue People’s Mediation Studio as a civil nonenterprise organization, it has played a positive role in exploring the way of professionalization, professionalization and socialization of people’s mediation team. The studio is located in the community service center of J Street. According to Director W of Street Justice Institute15 : Since the establishment of community service centers in the Street in 2005, the government has attached great importance to the needs of the people and should embody the practical action of “people-oriented” ruling concept. Lin Yue was originally the director of mediation of the neighborhood committee. She was well known in the community. Everyone served Aunt Lin. Later, she opened a mediation hotline to deal with contradictions and disputes in the community. The feedback was very good. The citizens needed it very much and solved many practical problems.

During social transformation, special agencies are needed to deal with mediation disputes. After that, the Shanghai Municipal Government opens a judicial service window to deal with people’s mediation and the two-way labor security gang (reform of labor reform personnel, re-employment, etc.) and directly faces the residents. Mediation directors of neighborhood committees are highly mobile and require competence, eloquence and certain legal knowledge for their own qualities, and they must be familiar with the community situation. There are various conflicts in the community, and people with certain qualifications and social experience are needed to deal with and settle them. Lin Yue Studio was founded in October 2003, named after her. First, because she has rich mediation experience, almost lifelong work in the community closest to the lives of residents, the residents trust and admire her. Second, she has excellent skills and means to deal with disputes, and has a strong working ability. Nowadays, residents’ awareness of safeguarding their rights has been greatly enhanced, and improper handling of contradictions and disputes will be threatened by exposure to media, which will easily cause adverse effects. Traditional mediation committees in SOs and RCs have been unable to deal with and resolve many disputes and community problems. A standardized dispute handling agency is urgently needed to effectively prevent and resolve conflicts and prevent the intensification of conflicts. In fact, the birth of the studio is the result of the decentralization of state power to the street level in the process of urban community construction. The purpose of the studio is to strengthen the work of the street mediation committees and to represent the transformation of the people’s mediation organizations in Shanghai. It is also the work of the original residents’ mediation committees, the RC mediation committees and the street mediation committees. Mediation agencies added to the network. This way of setting up people’s mediation studios at the street level has been popularized in the streets of other districts in Shanghai so far and thus formed a new working 15 Interview

in J Street, N District, Shanghai, July 2008.

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District Judicial Bureau

Street Judiciary Office The Police The Court

The Studio

Station

Residents’ Committee

Community Informants Fig. 1 The embedded work network of the mediation studio

mode. The working network of the studio includes the relationship between the studio and the streets (judicial offices), District judicial bureaus, neighborhood committees and information mediators vertically, and the support and cooperation of the public security departments, district courts and other NGOs in the community which are closely related to them in their work horizontally (see Fig. 1). With the reform of government institutions, the contradiction between the original separated strips and blocks (tiaokuai maodun) at the street level has been alleviated, and the various departments among the blocks have begun to cooperate extensively. Therefore, the studio is embedded in the social work network and institutional environment, both vertically and horizontally.16 16 “Strip”

(tiao) generally refers to the functional departments with the same business content from central to local governments at all levels, while “block” (kuai) refers to the governments at all levels composed of different functional departments. At the community level, the institutions that belong to the “strip” include the professional management organizations of public security, taxation, industry and commerce, environmental sanitation and so on. The “block” mainly refers to the comprehensive management organizations such as street offices. In order to solve the contradictions between the “strip” and the “block”, the Shanghai government has carried out the reform of community management system of two-level government, three-level management and four-level network since 1996 (liangji zhengfu, sanji guanli, siji wangluo). The two-level government refers to the municipal and district governments, and the three-level management refers to the three-level management of city, district and street (town) according to their respective responsibilities of the city management. The four-level network refers to the four-level network of cities, districts, streets (towns) and residential areas. Under the unified leadership of Shanghai, a “strip-based, combining blocks” management mechanism has been formed. The history of Shanghai’s block development is from “strong strip, weak block”, to “block-oriented” and then to “strip-block combination and strip accommodating to block”. At the same time, in the face of the growing demand for governance in urban grassroots society, the original government-led management model has been unable to cope with the surge of urban public demand, and the government-led community construction movement has begun. Shanghai’s community autonomy and development are at the forefront of the country.

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A. Relations between the Studio and Street Judicial Institute/District Judicial Bureau In the 1980s, J SO had offices, municipal departments, civil affairs departments, comprehensive management offices, cultural and educational departments, health departments, family planning offices and labor economy departments. In the 1990s, the Street officially established the CCP Labor Committee and its local offices. The CCP Labor Committee’s organizational bodies included secretaries, disciplinary committees, organizational departments and propaganda. The functions of the Section and the Young Women’s Organizations are to give overall leadership to the political, economic and social development of the community. When the author first arrived at J Street in 2005, the internal functional departments included the Judicial Institute, the Municipal Appearance Management Section, the Security Section, the Family Planning Office, the Organization Section, the Comprehensive Governance Office, the Propaganda United Front Section and the Social Development Section, as well as the Administrative Office, the Archives Office, the Community Affairs Duty Office and the Residential Committee Election Office. It is a typical bureaucratic structure of government (see Fig. 2).17 Among many organizations, the Street judicial office is the functional department directly responsible for and instructing the work of the studio, while the county judicial office is the dispatched agency of the county Judicial Bureau in the township people’s government (sub-district office), the functional department responsible for the administration of justice of the township people’s government (sub-district office), and the county district judicial office. The work is carried out under the leadership of the Judicial Bureau and the township people’s government (sub-district offices).18 The guidance of the judicial institute to people’s mediation is as follows: holding regular meetings of mediation directors at all levels regularly, carry out professional training of mediators, emphasizing the work of preventing disputes from intensification in light of the occurrence and development of civil disputes as well as the new situation and new characteristics in the region, organizing the investigation and special management of disputes in a targeted manner, and actively assisting and participating in the mediation of major difficult and easily intensified civil disputes. Therefore, as the functional department of the government dispatched agencies, the judicial office itself does not belong to the organizational setup of the people’s mediation system, but can be reasonably regarded as the superior organization of the people’s mediation committee. It is responsible for guiding the work of the People’s Mediation Committee, managing its organizational, ideological and operational construction, participating in the mediation of civil disputes, or supporting the work of the People’s Mediation Committee by coordinating the work of relevant departments (Gu et al. 2000). 17 Max

Weber believes that bureaucracy has five characteristics: specialization, hierarchy, regularization, impersonalization, technicalization and public-private distinction; see Economic and Society. 18 Opinions of the Ministry of Justice on Strengthening the Construction of Judicial Institutions, Ministry of Justice of the People’s Republic of China, Judicial Circular [1996] 081.

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Administrative office

Compre Executi ve office

Municip

Family

departme

al

planning

nt

branch

office

hensive

Social

Financial

manage

security

ment of

branch

The

Ministry of social

Econom

residents’

develop

ics

committe es

ment

public

Social Reprodu

Talk

Investment

disinfection

ctive

shows and

promotion

health

health

Table TV

center

station

service

assistance

Community

agency

station Labor and

for

service

family

organizations

planning

Commu nity cultural station

Community affairs

Community

acceptance

library

service centre

Party Working Committee

Party Committ ee Office

Organiz

Propagan

ation

da United

Departm

Front

ent

Division

Disciplin

Youth

e

Civilizat

League

Inspectio

ion

Working

n

Office

Commit

Committ

tee

Fig. 2 Distribution of street functional departments from 2006 to present

Labor

Women’ s

Union

Federation

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4 Historical Background and Development Process …

Both the studio and the judicial institute are part of the comprehensive management committee system. They are subordinate to the comprehensive management office and the superior departments as well as the district judicial bureau. In a survey conducted by Bloomberg in 2003, it was found that although there was only a guiding relationship between the district Judicial Bureau and the Street, the former could strengthen its “leadership” to the latter through the assessment and evaluation work, because the results of the assessment and evaluation were very important to the Street, and the quality of the results would directly affect the street government system of the judicial bureau. Yet due to the lack of direct affiliation, the control of the district Judicial Bureau on the Streets is complex, delicate and lack of stability. Given that the studio is a civil non-enterprise organization in law and does not belong to the state authority, if it wants to connect with the network of state organizations outside the judicial administration department, it must pass through the district Judicial Bureau as an intermediate link. In all major policies, the Judicial Institute also has the power to instruct the studio, and the cooperation between the studio and other departments in a horizontal way requires joint instructions from the Judicial Bureau and other departments. The “work regulations (trial implementation) of the studio” are also formulated by the judiciary. The vast majority of its funds, including the salaries of mediators, are determined by the judiciary. Some scholars believe that the reorganization of people’s mediation is not a subversion of the existing organizational system, but a patched incremental reform. On the basis of maintaining the original organization, the new organization of people’s mediation system has been added (Xiong 2006). Director W of the Institute of Justice also introduced the process and necessity of the establishment of the studio19 : The streets were initially handled by judicial assistants, and then a judicial office was established. In 2000, the Ministry of Justice called for the establishment of people’s mediation committees in various towns. In fact, this is meaningless and disputes still cannot be resolved. Because the Commission is composed of various government departments, such as trade unions, women’s federations and so on, it is impossible to deal with conflicts directly. Therefore, Lin Yue Studio is a working entity of the People’s Mediation Committee, which can deal with problems effectively. This new way of purchasing services by the government is also because the new leaders of the street draw lessons from foreign countries and apply advanced concepts and operational management models to the construction of Shanghai community. So it can also be said that the government initiated the implementation of this form not only to maintain social stability and harmony, but also to other regions as a model for reference. After the establishment of our district, it has been extended to other districts, and now it has been implemented in the whole city.

Although the Judicial Bureau manages the street judicial offices and studios, the upper government also gives the studios some freedom and power, because as a manifestation of pluralistic social organizations, it tries to give full play to the characteristics and advantages of NGOs and reduce government intervention in them.

19 Interview

materials on J Street, N District, August 2008.

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B. The Relationship between Studio and Neighborhood Committees and Community Informants Studio and neighborhood committees have close cooperation in dispute resolution, and their business is inseparable from the “fish and water” relationship. The studio needs professional guidance to the 13 neighborhood committees under J Street and training to the mediators of the neighborhood committees. Small disputes can generally be settled under the mediation of the neighborhood committees, which cannot be solved by the studio. After successful mediation, both parties need to sign a people’s mediation agreement with the studio with legal effect. The production of the agreement includes the procedures of evidence fixation and persuasion, consultation, record, signing agreement, delivery, performance and supervision, and strives to achieve legalization, procedural and standardization, reflecting the professionalization and institutionalization of people’s mediation. This work cannot be done by the neighborhood committee, and the professional terms involved in it are not fully understood by the general mediators of the neighborhood committee, so the neighborhood committee only plays a role in informing the news and solving some small disputes which are easy to handle. The main reason why the neighborhood committees are unable to solve complex disputes effectively, especially group disputes is that the mediators of the neighborhood committees are difficult to guarantee. Specifically, it includes: mediators are highly mobile. More than 30% of mediation cadres in J Street’s residential committees are transferred every year. Some of them have successively replaced three crops of mediation cadres, and the training cannot keep up with the flow and the work cannot be linked up. Moreover, the ability and quality of mediators are uneven, and too many of them take part-time jobs. With the emergence of various types of disputes, it is difficult for village mediation cadres to be competent for a large number of new types of Civil Disputes Mediation Office work. There are 1 mediation director and 10 part-time security directors in the neighborhood committee of J Street, accounting for 77%. The mediation work is difficult to ensure. Second, the role of the network is difficult to play. Last June, the Street established a mediation committee, forming a three-level mediation network of street mediation committee, neighborhood committee mediation committee and mediation team, covering the whole community. Street mediation committee is composed of judicial officers, leaders of street lines and directors of village committees. Because the staff come from various departments and the focus of work is still in the original unit, street and town mediation committee becomes “empty shelf” when confronted with disputes. Moreover, the village/residents’ mediation committees, which were not strong enough, were quite separate and lack of coordination, so that the mediation network could not further form a joint force, which leads to the inefficient and ineffective mediation of civil disputes. The government is still at the forefront of dispute resolution, which is not conducive to the transformation of government functions, nor to the development of people’s mediation organizations. In summary of the above situation, Street personnel believe that people’s mediation work must break through the

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traditional mode, innovate people’s mediation organization, mechanism and working methods within the current legal framework, and create a diversified community dispute settlement organization, thus establishing the “Lin Yue People’s Mediation Studio”. In addition to the neighborhood committees, there are also “nerve endings”— community mediation informants set up by community people’s mediation organizations in residential teams to assist studios in resolving conflicts. Their main role is to timely reflect the disputes among residents, especially pay attention to the collection of unstable hidden dangers which are still in the embryonic stage, and strive to eliminate them in the “seedling” stage, in order to avoid major disputes or conflicts. Lin Yue said20 : Information mediators are our activists. They do not have office hours and do not take a penny. They are obligatory and voluntary. The net here in Shanghai is very wide. Every building group has it. For example, in my own home, I am the head of the building group. I am also a legal propagandist, informant and mediator.

C. The Relationship between the Studio and the Courts and Police Stations According to the Civil Procedure Law and the Organic Law of the People’s Court, it is the duty of the court to guide the work of the people’s mediation committee.21 Courts also actively try to resolve disputes in the form of mediation before litigation, mainly in the provisions of people’s mediation before litigation and court entrusted mediation (pre-trial mediation). Pre-litigation people’s mediation mainly refers to some family disputes, neighbourhood disputes and other difficult disputes brought directly to the court without mediation by the people’s mediation committee. The court may recommend the parties to the dispute to apply for mediation to the people’s mediation committee in the street and town where they are located. The court will no longer file a case (He 2004). Therefore, the studio is coordinated with the administrative department to resolve contradictions, especially some group disputes in the community. They also have the system of the Administrative Committee on Coordination (ACC). Specifically, for various group disputes involving civil rights and obligations between citizens, citizens and legal persons and other social organizations in the community, the relevant personnel of the sub-district office shall convene the Administrative Coordination Committee under the leadership of the administrator, and all parties concerned shall participate in the consultation and mediation. After administrative coordination and with the consent of both parties, the latter is entrusted to the relevant people’s mediation committee for mediation. After the two sides have reached consensus and clarified the relationship between rights and obligations, the street people’s mediation committee (studio) shall make a mediation agreement, which shall be signed and 20 Interview

Records of Lin Le People’s Mediation Studio, July 2008. Shanghai Archives Government Public Information, File No. AB0105003-2004-007 and see Notice of the General Office of the Central Committee of the CCP and the General Office of the State Council on Transmitting the Opinions of the Supreme People’s Court and the Ministry of Justice on Further Strengthening the People’s Mediation Work in the New Period. 21 See

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sealed by both parties. On the one hand, people’s mediation can be coordinated by the authority of administrative departments; on the other hand, administrative coordination can establish a “buffer zone” through people’s mediation, and transform administrative will into a “agreeable contract” with legal effect. However, legal litigation dispute resolution has the characteristics of high cost, long cycle and rigidity, and the people’s mediation service in the studio is free as long as both parties are willing, and the cost is much lower than going to court to litigate. Justice, though impartial and authoritative, uses strict procedural rules to act according to the rules and regulations. It is rigid and lacks softness. Sometimes judgments seem to cut off the root of disputes but often bury the seeds of new conflicts. This is the embodiment of “a lawsuit brings about a hundred years’ feud” (yichang guansi baishichou) in Chinese culture. The studio pays attention to the mediation method which combines emotion, reason and law, and often makes the contradictory parties focus on the maintenance of long-term community relations with the moral and rational considerations of “good neighborhood, more precious than gold” (haolinli, saijinbao) and “distant relatives are inferior to nearest neighbors” (yuanqin buru jinlin). Another part of the studio’s work is the mediation response to 110 police calls.22 The studio is connected with 110 alarms. When residents in J Street administrative area dial 110 alarms, the public security faxes the 110 alarm telephone records to the studio. The telephone fax opportunity of the studio collects information immediately, and then transmits the alarm information to the neighborhood committee of the alarmer at the fastest speed, and dispatches it at the first time. The cadres of the residents’ deportation Committee rushed to the scene to conduct on-the-spot investigation and try their best to cooperate with the police in dealing with various disputes. The joint action with the public security system originated from the document of “110” joint action of public security and justice, which was implemented by the N District Public Security Bureau in 2000 in the N District Judicial Bureau. The scope of mediation of “110” linkage work includes all kinds of civil disputes, civil disputes arising from marriage and family, neighbourhood, support, debt, compensation for damages and other personal, property rights and interests among citizens in jurisdiction and other civil disputes in daily life. It also includes the mediation of group disputes such as laid-off, relocation, factories and stores. Its significance is to organically combine the preventive functions of mediation organizations at all levels with those of public security organs, complement each other’s strengths, and jointly build a new mechanism for maintaining social stability that meets the needs of the development of the situation and pays equal attention to prevention and attack. In practical work, the studio has explored the “grid management”. The studio takes 3–4 residential areas as a working grid. Each residential area establishes 7–9 people’s mediation committees, and cooperates with the information worker team in the residential building group to form the working grid of the people’s mediation in the studio-residential area-residential building group. The studio will interact with 22 The five main tasks of the studio are: legal consultation, dispute mediation, letting depressed people talk, 110 mediation reply and visiting agent.

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the director of residential mediation, the mediator of building group and the disputes informer regularly and under the grid of appointed staff, so as to arrange community disputes and participate in the mediation of disputes. In addition, the studio also has more cooperation with community legal groups, lawyers and volunteer organizations. Many spontaneous non-governmental mediation organizations have sprung up in J Street to safeguard community safety and make joint efforts for community stability and harmony. 2. Dispute Handling Characteristics of Studio: Combination of Emotion, Reason and Law With the rapid development of society, the cohesion of urban communities has declined. The warmth of families, courtesy of neighbours, honesty in the transaction process, social tolerance and sense of responsibility in the community have gradually lost their value in the social fashion of advocating money and material (Nisbet 2000). On the other hand, under the general policy of promoting the rule of law in an all-round way, the state hopes to deepen and internalize the concept of legal system and legal consciousness at the grass-roots level. However, when laws and regulations conflict with the existing social norms and order, they fail to provide a set of dispute resolution mechanism that can meet the needs of the people, which greatly aggravates the contradiction between national law and civil society. In this respect, people’s mediation has a strong cohesion on civil disputes in grassroots society, maintains the value of inheriting morality and traditional culture, promotes the governance of grassroots society and promotes autonomy, and serves as a bridge to coordinate national and folk customs. Shanghai’s community people’s mediation is characterized by the integration of modern law and social morality. Especially in the old urban area of J Street, residents are old neighbors who have lived for decades. Some of the old houses in local communities have to share electricity meters, public kitchens and so on. There will inevitably be a dispute over public goods among families. Seizure, sometimes even demonstrates immoral neighborhood disputes. There are many internal problems in families, such as leaking houses, quarrels between husband and wife, divorce and so on, will go to the neighborhood committee and the studio to seek help and solutions.23 When dealing with disputes, the studio pays special attention to “emotion, reason and law”, which is emphasize by the Chinese culture when managing social conflicts. While resolving disputes, the studio strengthens the residents’ sense of identity and cohesion to their communities, and maintains good relations in the community. The “sentiment” here includes “community sentiment”, “human sentiment” and “face”. As a third-party organization to solve disputes, the studio also needs a certain “face” to let the masses buy the mediator’s human feelings, and face is based on power status or social prestige, for the studio, it is authoritative. On the one hand, this authority is formally endowed, that is, the legitimate power is granted through 23 The results of the author’s questionnaire in J Street in N District show that the residents of J Street mostly turn to the neighborhood committee when they encounter disputes, followed by the street studio. See Appendix F, “Harmonious Community Questionnaire”.

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the government; on the other hand, in actual work, many residents admire Lin Yue very much, and the establishment of their human relations has developed a network of mutual trust, participation and support, which helps to form a mutually beneficial relationship between them. “Reason” here includes reason and jurisprudence, which is a common moral and legal compatibility strategy in the process of solving disputes in the studio. “Reason” more reflects the Confucian ethics of “harmony is precious” in traditional Chinese society. It is also the nature of people’s mediation itself. That is, when solving disputes, it is not only based on laws and policies, but also on social norms such as public morality, customs and reason. The use and dependence of these rules by people’s mediation actually plays a role in supporting traditional values such as Oriental etiquette and ethics, safeguarding public morality and interests, fostering social cohesion and healthy interpersonal relationships. The “law” here is the basis for the decision of the studio in the process of dispute settlement. Many cases cannot be solved completely by the moral preaching of mediators under the development of modern market economy. General principles of Civil Law, Marriage Law, Inheritance Law and other legal provisions play a supporting role in the process of conflict resolution, and the crux of many problems is economic compensation. Therefore, the law of the state is the criterion for mediators to make decisions, and the mediation of each case is justified. Facing different disputes, Lin Yue People’s Mediation Studio understands the characteristics of different family structures and the causes of disputes, and takes into account national laws and regulations, family ethics and public order and good customs. It hopes to arouse and cherish collective conscience while handling disputes according to law. We should adopt the principle of voluntariness of both parties, focus on the future development between neighbors, and try our best to make the parties reach non-litigation results.24 This way of mediation combining reason and law can make the mediation procedure standardized and flexible, because if the mediator only speaks the law and does not consider the feelings of the parties, it is easy for the parties to “drill the bull’s horn” (zuan niujiaojian), and the dispute mediation will also come to a dead end. If the mediator only talks about reason and does not talk about law, then reason has no foundation, and then people will not accept such “reason”. The purpose of studio mediation is ultimately to achieve the results of both parties’ satisfaction, sum up more than zero, build community cohesion and become an important force in community construction. In addition to the strategy of “emotion, reason and law” in conflict resolution, the studio also makes full use of its embedded work network to facilitate the coordination of all parties in conflict prevention and resolution. For example, the method of network arrangement in dispute prevention is to arrange the civil disputes in the area regularly through the three-level mediation network of streets, neighborhood committees and building groups. The information of the disputed households is provided by the building group, and then the disputes in this area are registered and classified by the RC. Then the situation provided by the RC is summarized and analyzed by 24 The

result of the lawsuit is zero, that is, one party wins the lawsuit and the other loses.

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the street, and the disputes which are easily intensified are listed, controlled and intervened in mediation in advance. In practical work, the studio implements “grid management”, which takes 3–4 residential areas as a working grid. Each residential area establishes 7–9 people’s mediation committees, and cooperates with the information worker team in the residential building group to form the people’s mediation work grid of the studio-residential area-residential building group. The studio will interact with the director of residential mediation, the mediator of building group and the disputes informer regularly and under the grid of appointed staff to arrange community disputes and participate in disputes mediation. Faced with complex disputes and fierce conflicts, studios also need to use resource integration strategies to quickly settle disputes, including administrative resources, legal and social resources, public opinion resources and so on. Among them, the integrated administrative resources of the studio include street governments, judicial offices, police stations, etc. Legal and social resources include advisory missions of judicial leading bodies at the urban level (such as courts, civil affairs bureaus, etc.), sociologists, lawyers and psychologists, which are the strong backing for the studio to carry out mediation, as well as enthusiastic participation in the community. The volunteer team of compulsory mediators and legal consultation should be built. The public opinion resources here are mainly among the acquaintances and neighbors in the old urban areas, especially some old-fashioned alleys. The public opinion of the residents has a great impact on individual behavior. In resolving conflicts, studios often persuade the parties to consider the influence of the public opinion of their neighbors, to think from other people’s point of view, and to combine the power of traditional culture and social morality, which can usually produce ideal results, and is of great help to the maintenance of long-term relations among community residents.

4 Summary This chapter mainly reviews the historical development and background of Chinese traditional civil mediation, especially introduces the development process and progress of Shanghai people’s mediation. Emphasizing people’s mediation as a special means of solving social contradictions and disputes has a long history in China. It is a very important way of dealing with disputes among the people. It is a concrete manifestation of Confucian culture that “harmony is precious” and emphasizes harmony and comity. At the same time, it introduces the new mechanism of Shanghai people’s mediation—Lin Yue people’s mediation studio, its embedded work network and its position and role in community dispute resolution, and shows the cooperative dependence between the studio and other organizations. The relationship network of this organization is also embedded in a larger institutional environment, which corresponds to the needs of the society for people’s mediation and the transformation of government functions. The studio undertakes such political tasks as mobilizing people to maintain community harmony, preventing contradictions from intensifying and participating

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in comprehensive social governance. Therefore, it has the nature and characteristics of performing government functions. Its essence is a typical representative of the diversified organizational forms of conflict resolution under the leadership of the state. The support and promotion of the state is also the dynamic mechanism of the studio. The fifth chapter will show the process of resolving urban community disputes through three specific community cases, and how the Lin Yue People’s Mediation Studio handles and resolves group disputes. It also shows the unique advantages of the studio in resolving disputes, as well as the shortcomings and problems.

References 2005 Shehui Lanpishu (Blue Book of Society 2005). Organizational research. Chinese Academy of Social Sciences, Social Sciences Literature Publishing House. Chen, W. (2008). Quntixing jiufen jiejue jizhi de duoyuanhua gouxiang (Diversified conception of collective dispute resolution mechanism). Shandong Jingshan Xueyuan Xuebao(Journal of Shandong Police College), 2, 49–52. Cohen, J. A. (1966). Chinese mediation on the eve of modernization. California Law Review, 54, 1201–26. Fan, Y. (2004). Shehui zhuanxing zhong de renmin tiaojie zhidu: Yi Shanghaishi N qu renmin tiaojie zuzhi gaige de jingyan wei shidian (People’s mediation system in social transition: From the perspective of the experience of the reform of people’s mediation organizations in N District of Shanghai). Zhongguo Sifa (China Judiciary), 10, 55–62. Fei, X. (1998). Xiangtu Zhongguo Shengyu Zhidu (Native China fertility system). Beijing: Peking University Press. Gu, J., Lin, S., & Wang, W. (eds.). (2000). Shequ tiaojie yu shehui wending: Shanghai Luwan Qu Wuliqiao Ge’an (Community mediation and social stability: A case study of Wuliqiao Street, Luwan District). Shanghai: Shanghai University Press. He, B. (2004). Lun minjian tiajie zuzhi zhi chonggou (On the reconstruction of civil mediation organizations). Zhongguo Sifa (Judiciary of China), 2, 24–27. Huang, Z. (2001). Qingdai de Falv, Shehui yu Wenhua: Minfa de Biaoda yu Shijian (Law, society and culture of the Qing dynasty: Expressions and practices of civil law). Shanghai Bookstore Press. Huang, Z. (2005). Renshi zhongguo: zouxiang cong shijian chufa de shehuixue (Understanding China: Towards sociology starting from practice). Zhongguo Shehui Kexue(Chinese Social Sciences), 1, 83–93. Liang, Z. (2002). Xunqiu Ziran Zhixu zhong de Hexie (Seeking harmony in natural order). Beijing: China University of Politics and Law Press. Lind, D. (2007). On the theory and practice of mediation: The contribution of seventeenth-century jurisprudence. Conflict Resolution Quarterly, 10(2), 119–128. Nisbet, R. (2000). The quest for community: A study in the ethics of order an freedom, in Don Eberly, E. (ed.), The essential civil society reader: Classic essays in the American civil society debate. Lanham, MD: Rowman & Littlefield Publishers. Qiang, S. (2001). Tiaojie, Fazhi Yu Xiandaixing: Zhongguo Tiaojie Zhidu Yanjiu (Mediation, legal system and modernity: A study of China’s mediation system). China Legal Publishing House. Shanghai Tongji Nianjian 2009 [SSB]. (2009). Shanghai Statistical Bureau. Wang, G. (2005). Renmin tiaojie zhidu shi jiejue shehui jiufen de zhongyao falv zhidu (The people’s mediation system is an important legal system for resolving social disputes). Zhongguo Sifa (China Judiciary), 8, 11–15.

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Wen, Y. (2002). Investigation and reflection on the trial implementation of the chief people’s mediator system in Shanghai. Zhongguo Sifa (China Judiciary), 3, 59–60. Xiong, Y. (2006). Renmin tiaojie de shehuihua yu zaizuzhi dui Shanghai Yang Boshou gongzuoshi de ge’an fenxi (A case study of the socialization and reorganization of people’s mediation at Shanghai Yang Boshou Studio). Shehui (Society), 6, 95–116. Yu, Y., & Liu, Z. (2008). Cong minjian tiaojie de lishixing yu xianshixing kan zhongguo faxue de fazhan (Viewing the development of Chinese law from the history and reality of civil mediation). Journal of Xuzhou Normal University (Philosophy and Social Sciences Edition) (1), 98–104. Zhang, T. (2002). Urban development and a socialist pro-growth coalition in Shanghai. Urban Affairs Review, 37(4), 475–499.

Chapter 5

Dispute Resolution in Urban Community: Three Cases

What are the characteristics of collective disputes in Shanghai community? How can Lin Yue People’s Mediation Studio, a state-led people’s mediation organization, resolve disputes? What are the differences in the way conflicts are handled at different levels? How much state control and independence do civil non-enterprise organizations have in dealing with community conflicts? Will it become a vassal and another leg of the government? What are the characteristics of state-led social organizations in conflict resolution? Collective disputes are very sensitive in Chinese society and attract great attention from the government and the media. It is necessary to conduct in-depth research on them. Participant observation and informal interviews are more convenient to understand the facts and obtain the most authentic first-hand data than questionnaire surveys. This chapter will show and discuss these problems through three specific cases.

1 Suppression and Resistance: Qingfeng Community Incident1 With the development of urban construction in Shanghai, community collective interest disputes are also increasingly frequent, among which “housing estate” accounts for a large proportion in all kinds of disputes. More importantly, this type of disputes is easier to trigger collective incidents than marriage and neighborhood issues. Because the housing conflicts often involve a large number of residents in a region. Once the conflicts, its social influence far exceeds that of neighborhood disputes and family disputes. The first case of this book is a serious collective incident of bloodshed and assault during the period of resisting the infringement of 1 For

the sake of confidentiality, aliases are used for the shop name, community and person name involved in all cases. © Shanghai People’s Publishing House 2020 J. Hu, Disputes Resolution in Urban Communities in Contemporary China, https://doi.org/10.1007/978-981-15-8644-6_5

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developers, because the public roads in the residential area were occupied by the developers of buildings, the space and greening of the homeowners’ houses were destroyed. Residents in the conflict were beaten several times by the city management team, which forced public security and police stations to launch a crackdown to maintain order. This eventually attracted the government’s attention and intervention. Only by making the representatives of homeowners, developers and district governments sign agreements together can the construction of the northern road be eased. But the ultimate solution to the conflict is that after the repression and resistance, petition and entanglement, the community HC still take developers and property companies to court. Until March 2008, the N District People’s Court decided to terminate the property service contract of the defendant C Real Estate Development Co., Ltd. and asked the defendant to provide copies of the housing equipment and other documents to the industry committee of Qingfeng Community. The incident took place in the “Qingfeng Community” of J Street, which is an early high-grade export real estate building in N District. The homeowners of the community come from many different countries, and a large number of Hong Kong, Macao and Taiwan residents and overseas Chinese relatives live here. Yet in such a middle-class residential area, which is also located in the central part of Shanghai, a large-scale mass incidents have occurred, affecting more than 500 households, resulting in tremendous infringement on the lives and property of citizens and threats to social stability. Although government departments quickly intervened and controlled the situation, they could not solve the problem through mediation and consultation, and ultimately adopted the compulsory judgment of the court. The consequences and effects of the incident on the homeowners and residents are self-evident. It has produced a huge shadow in their psychology and physiology, especially greatly weakening the trust in government departments. One day in May 2005, the homeowners of Qingfeng Community experienced a terrible day. Within 20 h, some residents were beaten twice by nearly 500 members of the city appearance supervision team who claimed to carry out the order of “protective construction”. More than 10 people were seriously injured and more than 100 homeowners were slightly injured. Their hard-earned homes have been destroyed, greening has been eradicated, and roads have become construction sites for developers. It is understood that the conflict is caused by a north-south road to the west of Qingfeng Commnunity, which is the main road for residents and vehicles in and out of the community, H Road in Nanlian and J Road in Beitong. After notarized purchase contract and planning acceptance confirmation, the road should be owned by the homeowners of the residential area after three years of actual delivery and use. At the same time, when the homeowner purchases the housing in this district, it clearly indicates and writes in the annex of the contract, which belongs to the public road of the majority of the homeowners, and the purchase contract has been notarized by the Shanghai Notary Office. However, in 2003, two years later, developers C Real Estate Development Co., Ltd. and Z Real Estate Co., Ltd. want to build a “Xiangying Modern Building” on the northern open space, intending to occupy the road. At that time, the residents who heard the news immediately informed the homeowners that

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the residents of the community unanimously protested against the violation of their collective rights and interests.2 Mr. Xu, a local resident who suffered minor injuries during the conflict, bought a unit in Qingfeng Community in 2001. He described the initial dissatisfaction of the homeowner3 : According to Article 49 of the Urban Planning Regulations of Shanghai, “After the completion of the construction project, the construction unit must apply to the municipal or district or county planning management departments for planning acceptance. If the planning acceptance is not qualified, the municipal or district or county planning administration departments shall not grant visas; and the real estate administration departments shall not register the real estate rights.” In May 2002, our landlord has obtained the real estate warrant.

This fully demonstrates that the distance between the wall, road, greening and the planned red line on the north side of the clear wind has been checked and accepted. But how can the developer company suddenly dismantle the fence, change the red line of planning, change the main road of the district, change the water supply and drainage main pipe, change the greening and landscape after three years? This is a fact that the homeowners cannot understand and accept. Another homeowner, Miss Lin, who had experienced the conflict, recalled when they discovered the problem4 : At the end of 2003, some of our homeowners found that the area occupied by the “Xiangying Modern Building” on the north side of the community included the main road and green belt on the north side (6,400 km2 in total). The developers of “Xiangying Modern Building” and Qingfeng Community are all C Real Estate Development Co., Ltd. To this end, our homeowners and C company need to negotiate and discuss whether their behaviour is illegal. In the appendix of the notarized “Shanghai Commercial Housing Pre-sale Contract”, there is a sketch map of the community. On the North side are the main road and the green belt of the entrance square of the community. But on the property rights certificate that the homeowner got later, this area has been drawn beyond the scope of the community by a red line, indicating that it does not belong to the common ownership of the residents of the district.

However, for the differences in the contract, the homeowners of the community went to Mr. X, the general manager of C Company. His attitude at that time was that the difference in the homeowner’s property rights certificate of the pre-sale contract was due to their careless negligence, and the plan on the pre-sale contract was wrong. Yet Miss Lin said that the pre-sale contract has stated that “Party A shall not arbitrarily change the planar layout of the district agreed with Party B, and Party B shall obtain written consent if necessary. Otherwise, it is necessary to restore or compensate 0.5% of the total house price.” The homeowners also said that in the first year and a half of the dispute, neither side wanted to solve the problem through legal channels. Because the homeowners know that even if they win the lawsuit through legal channels, they can only get more than 2,000 yuan of compensation for 2 In

addition to interviewing residents, part of the information comes from media reports and networks. For the sake of confidentiality, specific websites and related reports, including news links and video clips, are not disclosed here. However, the data in this paper are published after verifying the authenticity of all kinds of website information, in order to ensure the authenticity and reliability of the content. 3 Interview data of Residents in Qingfeng Community, August 2008. 4 Interview with residents of Qingfeng Community, June 2008.

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each household but they all hope to continue to use the main road. Moreover, under the objection of the homeowners, the building has not been able to construct. Since the situation has not deteriorated and the contradiction is not too sharp, there is no need to go to the court. The C company manager said that the icon on the title card clearly showed that the gate and green belt were “temporary”. He believes that the homeowners are accustomed to thinking that it belongs to them because they see this way when they come in. He is not afraid of the homeowners to appeal at all. In fact, both sides of the dispute hope to have a “reasonable and legitimate” way to solve the problem. Residents prefer to solve the problem through private consultation, and do not want to go to court. Yet the intensification of the matter is that the construction of the building by C company cannot continue because of the impact of complaints from residents for more than a year. The company can no longer afford the loss of funds and is ready to start construction again. It also posted an “Announcement for the People” in the residential area to inform the homeowners that the “Xiangying Building” project will be formally constructed in May. The notice was quickly torn up by the homeowner, and a red letter was posted next to it, “Refuting the Notice to Reassure the Public”. At this point, the conflict has reached an irreconcilable point, and this announcement has become the blasting fuse of mass incidents. On May 2005, something happened that made all the homeowners of the community unacceptable and indignant. Many residents who experienced and witnessed the violent clashes of that day expressed their lingering fear. Early that morning, because some residents of the community saw that C company started construction again in front of the building, they wanted to stop it. As a result, the migrant workers sent by the company pushed them off the main road. At this time, residents saw forklifts and pumping machines in the construction team, one knocking on the door, one pushing the wall, shoveling the green belt and the gate in front of the building. Then, the construction workers and soldiers in blue clothes divided into two routes. Some went forward to pull weeds and eradicate flower beds. Some put iron sheets on the newly pushed green belt to make a new wall. As a result, the main road to the north of the community and the gardens and green belts built on the side were allocated to the construction site to the north. In the mall opposite the construction site, the general manager of company C, the developer of Qingfeng Community, was sitting in front of the landing window of the high-rise cafe and watching it. In his view, it was just the “resumption of construction” this time. The manager, Mr. X, told reporters in a famous Chinese magazine afterwards that he clearly foresaw that the reopening of trade unions would lead to conflicts, so he had asked the personnel sent by them to fight barehanded, without any arms and cannot hit anybody. And he also emphasized that this restorative construction was a government action, as the head of the enterprise cannot speak on it.5 Homeowners strongly protested their actions. Many residents waved red flags to show their opposition. Especially some people wanted to enter the construction 5 Because

C company belongs to state-owned enterprise, it is invested and founded by enterprises affiliated to Shanghai government and enterprises affiliated to N District government.

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site to stop the construction, so they had a dispute with the defensive C company personnel. Around 9 o’clock, about 300 officers in the uniform of the City Appearance Surveillance Brigade suddenly forced their way into the community, followed by about 300 helmet-wearing migrant workers. Then, the city management personnel forcibly pushed the homeowners who stood on the road, and grabbed the red flag in their hands. When some homeowners expressed their dissatisfaction and shouted at each other with the city management personnel, they suddenly dragged them over and beat them. Under the chaos, as long as someone slightly protests, they would be immediately surrounded by more than a dozen of them, and were punched and kicked to the ground. Mr. Xian, who was beaten and injured at that time, recalled that6 : We can hardly imagine and believe that as managers, city managers would use violence against our residents and dozens of people against one homeowner. The homeowners who protested at that time were all beaten. Some people, like my wife, saw me beaten and wanted to go back to the police immediately. As a result, they (city administrators and company migrant workers) deliberately blocked the entrance and exit of the community and did not allow the homeowners to enter and exit freely. I remember another landlord who was dragged out of his car and beaten by him just because he had something to drive out at that moment. He was hit by kidney bleeding and lay in the hospital! This kind of behavior is absolutely not human!

After investigating and interviewing by media reporters, the situation reflected by migrant workers in Company C was revealed7 : We listened to our heads (C company leadership), they asked us to cooperate with the city management, at the same time to push the two bulldozers off the outside wall and build a temporary wall. The greening over there should also be removed. In this way, these greening and that road can be incorporated into the scope of construction.

Suddenly the whole Qingfeng Community went crazy, and all the residents were extremely indignant about the barbaric behavior of the city management. Violence against homeowners by urban management lasted for more than two hours. Dozens of homeowners in the community were injured to varying degrees. Six or seven of them were seriously injured, and countless of them were slightly injured. When the police learned of the brutal violence, they paid close attention to it and sent a number of police cars to Qingfeng Community to control the situation, to check the situation of the injured homeowners and to issue injury certificates for them. Some residents were also brought to the police station to assist in the investigation. Residents in the stable public security, the majority of homeowners immediately wrote to the N District Government, demanding severe punishment for beating people’s urban management personnel while terminating the C company’s right to Qingfeng Community property management. If the official coordination was not achieved, the homeowners would go to court to sue C company. Dozens of them went directly to the municipal government to petition, but only received the response of “we will tell the incident to the N District 6 Interview

with residents of Qingfeng Community, June 2008. company C was reluctant to disclose the actual situation at that time, the information disclosed by migrant workers came from the relevant news media and network information.

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Government.” With no other choice, they intended to keep petitioning level by level to the top authority until they got a fair return. The homeowner, Miss Lin, soon called Mr. L., the district government official responsible for coordinating the work, but he still called it “protective construction”. Whether or not the protective construction should be executed after the court’s decision, how did the urban management team become the executor of the protective construction? And in the absence of any formalities, can they break into private residential areas and beat up households? This official response was not convincing to the residents at all, let alone calming their anger. But more incredible things were still yet to come. We got to know from the residents that at about 7 o’clock that evening, the homeowners gathered together to hold a general meeting to inform all the homeowners of what happened in the morning. At this time, some of them were very emotional and angry, intending to knock down the temporary slab wall they built. As they approached the construction site, suddenly a large number of helmet-wearing city managers entered the community again and forcibly broke into the garden area in the center of the community. Homeowners spontaneously blocked the center of the community, demanding that urban management personnel withdraw from the community. As a result, the bloodshed happened again. Due to the darkness, the city managers beat the homeowners more recklessly. One of them, Miss Lin, said8 : Their usual trick is to drag people in, asking a dozen people to surround them. And the people inside would be beaten seriously. While the homeowners outside try to rescue the battered people, he or she would encounter a more frantic counterattack. After the locust-like fighters finished beating our homeowners, the dying ones lay on the ground. It was unexpected that they came to beat people again in the evening. It was extremely cruel. I saw a passer-by who just said a fair word and was immediately dragged in and beaten.

Since then, the events have become more serious and complex, the scope of influence has gradually expanded, and caused media attention and coverage. There are also a large number of foreign residents and Hong Kong, Macao and Taiwan residents in Qingfeng Community. After the incident, the overseas owners of Qingfeng Community have telegraphed their families abroad, and more owners have applied to their embassies for protection. As Z Company, one of the developers of “Xiangying Mansion”, is also the property management company of Qingfeng Community, soon the community HC began to act jointly and posted notices to encourage owners to refuse to pay property service fees, which resulted in the loss of revenue of the company about 1.2 million yuan. In the case of unsuccessful negotiations with the industry committee and difficulty in reaching an agreement, Company Z expresses its readiness to sue the court. Such chaotic Qingfeng Community and the persistent complaints of the owners have alarmed the N District Government. In January 2006, led by the government working group which was then stationed in the district to deal with the incident, a working coordination meeting was convened, including the district housing bureau, the residential committee and HC of Qingfeng Community, C Real Estate Development Co., Ltd. and Z Real Estate Company. At the meeting, the homeowners can only request the termination of the management 8 Interview

with residents in Qingfeng District, August 2008.

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services of C and Z real estate companies and transfer them to other companies and enterprises according to the current situation. But Z company is also very dissatisfied: the main idea of them is that property management services and handover should be carried out under the premise of abiding by the rules and regulations and the principles of the contract, and all parties concerned should fulfill their obligations and enjoy their rights and interests. For the unpaid property service fee of about 1.2 million yuan, the industry committee is required to post a notice to urge owners and users to pay. As for this proposal, in fact, the owner refused to pay the property fee in order to exert pressure on the property company to transfer it as soon as possible. So when some members of the industry committee heard the idea of Z company, they proposed to pay the 1.2 million yuan in advance with maintenance funds. And Z company also promises to hand over the money as soon as it receives it. The problem was that the proposal to pay in advance with maintenance funds was opposed by the owners and the real estate bureau at the meeting. Finally, the coordinating meeting reached several consensus: (1) the industry committee issued a notice to urge the owners to pay. (2) Company Z has stepped up the collection and strived for the early transfer, which should be made by the end of March at the latest. (3) The successful property company is suspended from stationing in Qingfeng Community. Although the meeting on the transfer of property management services in residential districts and cities was led by the government, there was no follow-up, no minutes of the meeting, no supervision and constraints on the implementation of all parties, and the achievements of the coordination meeting were aborted. Yet the homeowner’s resistance has not ceased. On the one hand, they resolutely refused to pay property management fees, and more than two-thirds of the owners signed to boycott the new winning district companies to settle in the district. On the other hand, the community HC filed a petition against Z property companies in court, demanding that they hand over information to the HC. At the same time, Z company also appealed to the court, prosecuting the Qingfeng Community HC by demanding that it pay the arrears of property management fees. Conflicts and grievances continued. In March 2008, t the N District People’s Court ruled that the defendant, Shanghai Z Property Management Company, should provide the plaintiff’s Qingfeng HC with copies of housing and equipment data, the owner’s household information and the residential property service income and expenditure books. But Company Z refused to accept the court’s decision and appealed to the First Intermediate People’s Court of the city. And in mid-March, Z company agreed to meet the Qingfeng HC, promised to formally terminate the estate management services in the district after three months. The main reason for its withdrawal was that some owners had been petitioning constantly, long-term refusal to pay property fees, and some media reports were not true, which had a great impact on the reputation and brand of enterprises, and had caused great obstacles to on-site management services. According to the relevant provisions of the Shanghai Higher People’s Court “Relevant Questions Relevant to Trial Property Management Disputes”, the representative of Z Company also said, “If a dispute arises due to the transfer of property management services, the maximum time of transfer shall not exceed three months”. The Shanghai

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Real Estate Company must handover even if it still failed to collective even a penny of the 1.2 million yuan service fee. Until May 2008, the Shanghai Second Intermediate People’s Court accepted the case of Z Property Management Company v. the owner of Qingfeng Community owed the property service fee and made a final judgment, which clearly confirmed that the management of Z Property Company in Qingfeng Community was lawful: “The Court believes that after the expiration of the service period stipulated in the property management service contract, the owner committee has not re-signed the contract with Z Company but Z Company still manages the service and the homeowners also accept it. The original property management service contract shall continue to be valid. And the parties to the contract shall continue to perform their rights and obligations as stipulated in the original contract but the service term shall be irregular. Therefore, after Z company provides property management services, the owner should pay the property management fee in full according to the contract.”9 On the appeal of the HC, in May 2008, the First Intermediate People’s Court of Shanghai also issued a judgment: revoking the civil judgment No. 18XX of the N District People’s Court of Shanghai (2007). The HC of Shanghai N District “Qingfeng Community” requests B Property Management (Shanghai) Co., Ltd. and Shanghai C Real Estate Development Co., Ltd. to hand over relevant property management data and other litigation requests are not supported. The fees for the acceptance of first and second trials shall be borne by the appellant. So far, facing the judgment of the court, the Qingfeng Community Incident has got the final conclusion and settled. During the investigation, the author interviewed Mr. Shi, the director of the HC of Qingfeng Community. He was a middle-aged man who always showed a kind of perseverance in his plain words. He told the author how he felt in the incident.10 I lived in Qingfeng for 7 years. Four years ago, when the HC changed its membership, I became the director. At that time, developers made unauthorized changes in the late construction, which angered the majority of homeowners. At one time in the community, the atmosphere was very tense. Homeowners hang huge slogans outside the windows of the building and petitioned for complaints. In fact, this was also a helpless move. At the beginning of rights protection movement, our HC has been looking for developers many times, hoping to solve the problem properly and avoid further intensification of conflicts. Yet the developers do not pay attention to the owners at all, and ignore the laws and regulations of the country, resulting in the gradual escalation of contradictions. Finally, developers pay far more compensation than the original homeowner’s request, it is really self-blaming. Yes, I firmly believe that evil should not be overruled!

The process of homeowner’s rights protection in Qingfeng Community can be described as “thrilling”, and the HC has been under pressure and resistance from all sides. In fact, this is a common case of property disputes in urban districts, but more serious than the general rights movement, in which bloodshed and violence occurred. The case shows that apart from the fact that the real estate developers are 9 The

content of the contract is provided by the interviewees during the interview. Because of the confidentiality of some documents and data, the interviewees did not provide the important original data and the original judgment. 10 Interview with residents of Qingfeng Community, September 2008.

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only interested in profits, ignoring the rights of residents, or repressing by barbaric and violent means, the incident is not difficult to deal with and very serious at first, because it has not been paid enough attention, and during this period, urban management intervened in illegal mining. Violence is the key factor to aggravate the conflict between residents and the government until it causes adverse social effects. On the other hand, this case shows that ordinary property disputes can rise to a very serious level, and when mass incidents rise to a certain level, the way of mediation has been difficult to resolve and eliminate contradictions, which requires the use of mandatory legal means to solve so that the parties to the conflict act in accordance with legal provisions. When the incident gradually eases down and the government attaches importance to and sends personnel to intervene, it is possible to establish a platform for talks. However, from this case, we can still see that the results of the coordination meeting are all in vain, and the specific measures have not been implemented. Therefore, compulsory means are also effective in resolving serious collective incidents, which can control the situation more quickly and effectively and make the parties to the conflict accept the results of the treatment and suppress the conflict.

2 The “Blockhouse” Movement at the End of the Century In order to show how to deal with and settle collective disputes of different degrees between officials and citizens, the author focused on tracing and studying a 14year-long case, the “blockhouse” incident, which is a community collective disputes caused by “historical legacy issues”. This is not uncommon in urban communities. It is not only the root cause of group disputes in one or two communities but also the rights protection movement in residential areas caused by illegal buildings. This mass incident and its treatment and solution are a good window to examine the relationship between the state and the urban community authority. As a matter of fact, the socalled “historical legacy problems” (lishi yiliu wenti) have appeared repeatedly in various state-building activities in China since 1949 (Ying 2001). Fourteen years ago, the former deputy director of J Street illegally constructed a four-storey house on the vacant land between two residential buildings by taking advantage of his functions and powers, which led to a 14-year-long collective dispute. The courts and governments at all levels cannot satisfy the residents through negotiation and bargaining. Finally, through the intervention of the Lin Yue People’s Mediation Studio, the cooperation and coordination with various departments and the mediation of the residents and the owners of the N Group, it has been basically settled so far. This “blockhouse” incident exposed many problems in the urban community, and the petitions of community residents also have its complex reasons and profound background. The occurrence of collective disputes does indicate that there are some symptoms of problems in the social organism, but the problems should not be on the people nor on the party and the government, but on the intermediate link between the people’s government and the people’s masses.

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As early as the end of the 20th century (1994), J Street in N District caused 14 years of community residents’ collective disputes because of the construction of a fourstorey “illegal building” in the residential area of B RC, which directly affected the lives of residents in the two public buildings.11 So far (2008), 84 residents of Lane 499, J Road, and 112 residents of Lane 165, have been organizing collective protests against the four-storey building sandwiched between their houses, which local residents call “blockhouse” (diaobao). They have tried to appeal and protest jointly to courts, municipal, District governments, streets and neighborhood committees. They are widely used in petitions, sit-ins, noises, demonstrations and collective petitions. They are required to be demolished or used as public resources for community residents, such as old age activity rooms and public reading rooms. They are firmly opposed to their being used as companies or dormitories in the community. However, the sustained struggle has not been successful. Located at No. 28, 499 Lane, J Road, this “blockhouse” occupied a small overall area but it has a negative impact on the residential and daily life of 196 residents in 499 Lane and 165 Lane in North and South China. As this “fortress” has four floors, and the buildings on both sides are not more than seven floors, it blocks the sunshine of 165 lane houses on the north, greatly affecting the lighting of residents below the fourth floor, and the residents on the ground floor cannot even get sunshine for a whole day. From the space distance between front and back, the shortest straight line distance between the “blockhouse” and 499 Lane residents in the south is 6, 6.2 m at the second corner and 6.3 m at the third corner. And there is a small yard belonging to 165 Lane residents on the ground floor between the residence and 165 Lane residents in the north. The small yard is 2 m wide and has some low greening. The shortest straight distance between the small yard and the “blockhouse” is 7.2 m and the longest straight distance is 9.8 m (see Fig. 1).12 In addition to the spatial impact, the “blockhouse”, after several business transfers, was finally bought by N Group Company. It uses the upstairs as a staff dormitory and downstairs as an office. The air-conditioning exhausts installed by the company, the noise generated by vehicles entering and leaving, the construction waste generated during the decoration of houses, the mosquitoes caused by the greening planted by the company and so on, all made the surrounding residents unbearable. For residents, the long-term collective struggle not only consumed energy and time but also was not voluntary and intentional to confront the streets and neighborhood committees. Instead, they illegally constructed houses on the streets at the beginning, and then legalized them through dark box operation. They had formal property rights certificates and business licenses, ignoring the negative effects that residents had suffered for a long time. The voice and the appeal forced the residents to make “oppressive response” (Yu 2006).

11 This

“illegal building” is illegal in the eyes of residents, but in fact it is now a building with legal certificates such as property rights certificate, housing certificate and so on. 12 The measurements and sketches are provided by Lin Yue People’s Mediation Studio.

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Fig. 1 Distance map of the blockhouse (No. 28 Lane 499 in the middle) between the residents’ buildings

Since the “blockhouse” stood between Lane 499 and Lane 165 14 years ago, the collective struggle in the J Street community began. Aunt C was one of the main representatives and petitioners of this event from beginning to end. She was an old local resident born in J Street B. She had lived for more than 60 years in the 165 neighborhood committee of J Street and has retired now. She was also a member of J Street Aged Association and was very enthusiastic about community work and services for residents. She often reported community information and disputes to Lin Yue, with the hope to contribute to the creation of a harmonious community. Every time Lin held a dispute mediation meeting, she would also come and actively put forward her views and opinions. Fourteen years ago, Aunt C suddenly discovered that the fortress under construction was located in the north of her residential building. After inquiring about the situation, she learned that once the building was built, it would block the sunshine on the second floor of her house and also had an impact on the surrounding residents. Moreover, the space distance between the houses in the downtown community was not very large. This fortress was located in the middle of two residential buildings, occupying a large area, which would be harmful to the environment of the whole

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community and residents’ lives. At that time, Aunt C went to know the builder of the house. She got to know that the house was built by the SO and was to be used by the police. But because there were railings and iron pillars around it, the space was too small, the vehicles could not pass, and the police station was not really opened, so it had to be closed for a long time. Aunt C reacted with the RC and the SO to protest against the building, but it was ineffective. At that time, the residents did not actively cooperate in the struggle13 : Fourteen years ago, in 1994, we told the RC that the house was illegal and should be demolished. Now it’s better to make an old people’s activity room or a community activity room for us when it’s empty. In fact, they were all from the street, which was given to them by the “coffin” (referring to the former deputy director of the SO). After the June 4th Incident, he was arrested for corruption. He had many women outside. Later, he was sentenced to life imprisonment.14 When we went to quarrel, the house was still an illegal building with no certificates or licenses. But the SO warned us not to protest and many residents were afraid of bringing troubles. I organized them (residents) to make a petition, but they said that that’s none of my business, so that’s all. Later, the SO sold the house to Group D. When their boss came to see it, I happened to meet him. I asked that what did you plan to do? They said they had already paid a third of the money to buy the house. As soon as I heard it, I warned them not to buy it. This house is illegal and there are no vouchers. If you buy it, our residents will always quarrel with you. He was so scared that he returned the money to the street. Later, we did not know how come, the staffs in the SO started to legalize the house, property rights certificates, and licenses have been sold to N Group. Now a few very active protesting residents now are actually not affected a lot. Ironically, they refused to walk out to say a word at that time, but now it is just for getting more money! How black heart they are!

Aunt C was still very concerned about the interests of the residents themselves. When she participated in organizing residents to go to the streets, she wanted to mobilize residents to safeguard their own interests. But in fact, many residents themselves only coveted interests and did not want to take risks. They refused to fight with Aunt C at that time. When they saw that compensation was available, they began to fight actively again. This is the same as the collective struggle of farmers. When Yu Jianrong studied the authoritarian struggle of farmers in H County, he found that most of them were self-interested. The incentive factors of their collective appeal were “apportioning the cost of appeal, sharing the benefit of appeal equally”, “giving material and social rewards to the representatives of appeal” and “punishing the non-cooperators” (Yu 2006; Liu 2005). Sociologist Olsen uses selective incentives to explain the motivation mechanism of “free-rider” behavior tendency in collective action. He believes that this incentive is selective because it requires that each member of the group be treated differently and “rewards and punishments are distinct”. They can be coerced by punishing those who do not bear the cost of collective action, or by rewarding those who contribute to collective interests. The realization of collective action can only be achieved by 13 Records

of interviewing Aunt C, July 2008.

14 Residents had great hatred for the former vice-director of the SO. After June 4th, he was sentenced

to prison for corruption of power. After that, the house was bought by the Industrial and Commercial Bank of China (ICBC) and resold several times. Residents have always called him a “coffin”.

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selectively facing the incentives of individual groups rather than indifferent to the whole group members like collective goods. Only in this way will those who do not participate in organizations established for the realization of group interests or who do not otherwise contribute to the realization of group interests be treated differently from those who participate (Olson 1995). In this “blockhouse” struggle, for those who wanted to be free riders, Aunt C said15 : Our residents have one heart for this house because it involves all the interests of everyone, we must unite together. There are a few people who are afraid of taking the risk, i.e. being suppressed by the “bandits” refuse to come. I told them that, “If you intentionally don’t come, you won’t get a penny at that time!” Later, basically all got involved in fighting for our rights and suing the “coffin”. Some people have no class standpoint, only consider their own personal interests, refuse to come out and think cheaply.

After the deputy director of the SO was sentenced for corruption, the “blockhouse” was sold by the street to Company C, from which a sum of money was obtained. Company C bought the house and left it idle for a period of time, during which residents complained and threatened to demolish the illegal building but did not actually protest. When Company C learned the story behind the house and knew that the operation would cause strong dissatisfaction among the residents, the manager dared not use it again so as not to cause trouble. Hence, he planned to resell it to Company D. When residents heard the news, they immediately sent a representative to warn Company D not to buy it, otherwise the residents would always make trouble to them and would not let them be peaceful. D was deeply disturbed when he got to know the situation and heard their statement. He returned the house he was going to buy to Company C. After that, C succeeded in selling it to the current N Group Company without specifying the background and community conditions. Before buying, Mr. F, the owner of N Group Company, had no inquiry about the community situation and housing background, and had no knowledge at all. He did not expect the complex background of the building, so he bought it hastily and began to decorate it immediately for office and staff accommodation. The long-term confrontation and protest of residents made it difficult for him to get rid of it and ignore it. Residents felt very angry when they saw the “blockhouse” starting to operate. In addition to Aunt C, there was another resident called “cat’s eye” (maoyan), who was also one of the petitioner representatives, members of the J Street Association for the Elderly and community dispute information officers. Several petitioner representatives called residents to the B RC first to make petition against the RC, requesting the mediators and the Party secretary of the RC to demolish the “blockhouse” or give it to the residents for public use. The Party secretary Y of the B RC, who took over the handling of the incident, said16 : A large group of them petitioned to the RC. They said that the RC should listen to the residents’ voices. I said that I have no ability to resolve this problem, so I absolutely cannot make any promise to you! How can we promise what we can’t do? To promise is to coax you and prevaricate you right? But they said that I, as the Party secretary, did not listen to 15 Records

of interviewing Aunt C, July 2008. record of Party secretary Y of B RC, August 2008.

16 Interview

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the people. Then they went to the director of mediation for help. As a result, Ling Ling (the director of mediation) agreed to receive them in the evening. As soon as I heard it, I was so nervous and worried. How could such a thing be acceptable? It’s just like asking for trouble, because we can’t solve it, how can you accept to receive it! Later Ling Ling was utterly complained and scolded by the residents and confessed that there was no solution to the problem. So I also scolded her, “who gives you this power to accept!” You deserve to be scolded by them and asked for it! Later, thirty or forty people were very active and sat in the office of the RC every day to request for our resolution. Most of them were working staff. They had time in the evening and some of them have been retired. But we really have no way to respond. Our promise is only to pour mud (Shanghai dialect: nonsense). I can only lead them the way–you go to Lin Yue.

It can be seen that the neighborhood committees are powerless in resolving this dispute. As mentioned above, their powers and working abilities are very limited, and they cannot make a legally effective settlement of residents’ demands. Party Secretary Y had also been troubled by this “blockhouse” incident for a long time. Although she was not the object of direct complaints from residents, she was also suffering a lot17 : I declared to the residents that it was impossible for me to get any money, impossible for a penny! I had no ability to do so but our RC will try our best to fight for the legitimate rights and interests of the residents. If the higher authorities can mediate, we will cooperate with them to calm the residents’ mood and resolve this conflict as soon as possible. This problem was not settled thoroughly when the “blockhouse’ was built, but now it is impossible to solve it. I said “I can’t solve it”, but I didn’t say “I don’t care about this.” Those residents still quarreled with me and said that RC didn’t care about them. How can I promise anything I cannot do? Aren’t I fooling them?

When the neighborhood committee clearly cannot give residents a satisfactory result, a large number of residents still visited the RC in the evening or on the rest day to exert pressure on the Party Secretary and the director of mediation, asking for mediation for the residents, at least to request the current F boss to compensate for the loss of residents, but it was all of no avail. So the residents directly pointed at the company’s boss. Several retired residents like old L, old T, who had more leisure time, called a group of old ladies to argue with the F boss. Mr. F is also extremely depressed and felt wronged18 : As if I had fallen into the mire myself, the dispute had been going on since I bought the house. I am dying of grievance. When I bought it, I didn’t expect the story behind the house to be so complicated. I regret that I can’t settle the conflict right now but I am legal. I have not done anything illegal to the residents directly. My property rights are protected by law. There is no reason for me to compensate them for their losses. Business hasn’t been done yet but there have been a lot of troubles! I cannot imagine it!

When everyone had his own excuse, some emotionally agitated residents, especially some petitioners in Lane 165, who were greatly affected, began to consider collective petitions to the district government, hoping to attract the attention of the 17 Interview 18 Interview

Record of Secretary Y of B Neighborhood Committee, September 2008. with Mr. F of N Group Company, September 2008.

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higher government and solve this big problem for the residents.19 So the “cat’s eye”, “Aunt C” and several other petitioner representatives mobilized the residents to “complain” to the district government, indicating that the illegal “blockhouse” could not continue to exist, and the residents should be compensated for the long-term adverse effects. This kind of complaint discourse was obviously part of the tradition of rule of virtue in Chinese society. After 1949, the power of the state has been penetrating into the grassroots level, while the traditional discourse device of complaint has become a new power technology in the new state machine (Qu 1981). Apart from the fact that various political movements are the convergence of scattered lines of power, there is also an important outlet in the daily lives of the residents - that is, petitions. For the disadvantaged citizens, to oppose those local authorities who infringe on the interests of the residents, collective petition is usually the only relatively economic and effective way without other effective solutions. It is also reasonable for them to choose petitions. The difference between petitions and lawsuits is that the establishment of petitions system, as the essential content of “people’s democracy”, has made people’s daily life a focus of political struggle in the ideological political parties and countries, and is the institutionalization and routinization of state power’s intervention in the daily life of rural society. Letters and visits not only emerge as a standard complaint system but also as a way of citizens’ expressing grievances in daily talks. It is worth noting that the petition itself is not necessarily an effective way to solve the problem. Because the task of national governance is too heavy and the problems left behind emerge endlessly, the prevailing prevarication and delays in bureaucracy, and because the petition department is not the key and power department in the establishment of state power, petition in practice is more as a kind of facade and safety valve mechanism of the country. Its importance does not lie in the solution of the problem of “one visit, one solution”, but in providing the opportunity for the masses to complain and setting aside a glimmer of light to solve the problem. Of course, patiently, experienced and savvy petitioners can also use all kinds of “rightful resistance” (O’Brien 1996) or semi-legal means to make the dawn fall on themselves. But this weapon of struggle in pursuit of its own interests will limit its possibility of resistance in an obscure way and become a new fulcrum of state power in an unexpected way (Ying 2001). At 5:00 a.m. one day in June 2001, a large group of old men and women gathered in the community, ready to go to the district government. Aunt C recalled the scene and said20 : We held a sign at the entrance of the district government, affirming our request for the demolition of the “blockhouse”, and some even lay there. At that time, the main entrance of the district government was on Y Road (later the main entrance moved to C Road). The entrance was very narrow, and the whole entrance to the outside street was full of complaining residents. Many people were still crying. At the beginning, the people in the district were very fierce and told us to go back. I said, “Please have a look! Many people here are of 70, 19 For the disadvantaged citizens, to oppose those local authorities who infringe on the interests of the residents, collective petition is usually the only relatively economic and effective way (at that time, J Street has not yet established the Lin Yue People’s Mediation Studio). 20 Aunt C’s interview record, July 2008.

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80 years old, and even some women with breast-feeding babies. We all hope that leaders can help solve the problem and stop violating residents’ interests. Some older residents were still sick, and some of them having strokes and high blood pressure.

In this collective petition, some emotional residents began to use the “weapons of the weak” (Scott 1985) when they saw people coming out of the area.21 They knelt, kowtowed, called, and asked the district chief to receive them personally. Within the boundaries of the “problem domain”,22 they use strategies and techniques to gain the attention of government leaders (Ying 2001). The district leaders were worried that a large number of residents gathered at the government gate would have a negative impact. They sent people to distribute drinks and bread to the petitioners on the spot to calm the residents and stabilize their mood. The “cat’s eye” remembered that the residents intimidated the government at that time23 : We warn the people in the district that if something happens to the old, the young and the old here, we’ll petition to your district governor and even to the city government! When we saw the district governor coming out, the scene was really horrible. Many people knelt down, a black-pressed head, together shouted “Bao Qingtian” (Judge Bao) and kowtowed to him. We also know that if it weren’t such a “frightening” show, they (the local authorities) would not have paid any attention to us.

Residents got reassured by the government and were also received by the district governor. They were touched by the local authority’s touching words since he promised to pay special attention to the matter and solve it as soon as possible. Only in this way can the residents be slowly moved to leave. But unexpectedly, when the SO was under pressure from the superiors to properly handle the problems of 21 Like peasants, the vulnerable groups in Chinese cities will use the weapon of the weak to resist and safeguard their own interests. The petitioners will also use the strategy of “stepping on the line and not crossing the line”, and adopt the strategy of “disrupting strategy”. That is, to disrupt the normal order of social life, to attract the attention of the media and the public and to exert pressure on the government is the most likely strategy to succeed. 22 Specifically, the “problem domain” includes not only the discourse boundaries of residents’ complaints about the legacy problems, but also the action boundaries of their “riots” to exert pressure on the government. The former is how to construct the legacy problem as a local social crisis rather than a structural crisis in complaint, which is the breadth or level of the problem domain; the latter is a problem that can not only make the government feel the urgency of the problem, but also cannot give the government the verbal use of violence. It is the depth or vertical level of the problem domain. The process of “problematization” is like a “game” between residents and the state: on the one hand, the state considers how to “open its mouth” (kaikouzi) as small as possible under the premise of restoring social order as quickly as possible; on the other hand, the residents are constantly exploring and looking for the possibility of “squeezing out” more compensation from the state. There exists a hidden boundary between residents and the state in their interaction around petitions and “disturbances”. It embodies in immigrants what “can be said”, “can be done” and “can be obtained”, in the government why “must be solved immediately”, when “can use violence” and “cannot use violence”. This boundary, which is usually inconsistent with the provisions of policy provisions and legal norms, is not determined unilaterally by the state or residents, nor is it clear and fixed. Its elasticity is constantly expanding with the interaction between the two sides. This is true in collective struggles in both rural and urban areas. 23 “Cat’s eye” interview record, August 2008.

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residential buildings, they once again put pressure on the residents, and were trying to prevent residents from protesting through bribing means. According to Aunt C,24 The Street asked us to “stop complaining and petition”. They asked me to talk alone and told me that if I accept to persuade other representatives (I’m one of the ten representatives) and console other residents to stop petitioning, they will give me some money. I would also like to console the residents to stop the riots. I strongly refused! How can I do this? How can I took the money to sell the residents? Isn’t it too mean? I will never do it.

Aunt C not only did not accept the benefits of the street but also told the residents about it. As a result, the residents of the community thought that she was a good person, which increased her prestige among the residents. Unfortunately, the commitment of the higher government to the residents had not been fulfilled in a short time, and the residents of B neighborhood committee were also vulnerable groups without any internal network, most of whom were elderly and people of low and middle income. They could hardly rely on vertical private networks to get information and help from authorities nor can they use the relatively “split” administrative system to create “political opportunities” for themselves.25 As a result, those residents with strong legal awareness began to appeal directly to N Group through legal channels. In September 2003, several petitioner representatives consulted and prepared to go to the court to appeal with the residents who know the law and are party members in the community. However, when lawyers saw that the property rights and property rights certificates of the “blockhouse” were legitimate, they suggested that the residents withdraw their lawsuits. But the residents insisted on prosecuting the SO. The SO said that now the owner of the “blockhouse” was not the Street, the residents should find out who was the defendant first! Afterwards, the residents sued the buyer N Group, but the court and the Land Bureau said that the “blockhouse” was legal and the transaction was normal, and finally the residents lost the lawsuit. For some time afterwards, many residents were reluctant to do it, because they felt that it would not win, and many people would not do it after a few people retired. Because all kinds of ways are ineffective, especially after the legal way cannot see the hope, although the residents have complaints and discontent, but there is really nothing they can do. But this deepened the residents’ resentment for the Street’s original concealment of the “blockhouse” to the company. Only after the establishment of the Lin Yue People’s Mediation Studio in 2004 did the demands of the residents 24 Aunt

C’s interview record, July 2008.

25 Shi Fayong found that the relationship network was an important factor influencing the emergence

and outcome of the urban grass-roots rights movement in his study of the collective struggle against Green Street in Shanghai. Due to the different scope of power and starting point of interests of government organizations at all levels at the grassroots level in China, there are many conflicts and “cracks” in the whole administrative system, including contradictions between superiors and subordinates, clauses, blocks and clauses, thus providing space for citizens to make use of the network of relations. Rights activists can take advantage of the “political opportunity structure” created by the “rift” between levels, that is, relatively powerless citizens can use the support of high-level functional departments to restrict the infringement of local authorities as another part of the country (Shi 2003).

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who had been struggling in the sea of disputes finally be substantially resolved. As a member of the community, Lin Yue has long been aware of and concerned about this famous community dispute. She was determined to solve this problem for the residents through people’s mediation and tried her best to protect the rights and interests of the residents and get compensation. (1) First step of settling dispute: easy one first, difficult one second, to persuade part of the residents In October 2007, the residents of the community saw that the “blockhouse” was being renovated again, iron railings were erected around it and more air conditioning was installed on the roof. They felt that the building would be put into use, which aroused strong protests from the residents again. However, N Group considered itself completely legitimate and did not accept complaints from residents at all. As a result, the residents began to take action to put pressure on the F boss again. He was not allowed to leave when he entered the “blockhouse” and asked him to stop the project and return the house or to give it to the residents for public use. The boss did not agree but he was also intolerant of being harassed by the residents every day. Finally, he came to Lin Yue Studio and asked for mediation. According to Lin Yue26 : In February 2008, so many residents of 499 Lane (84 households) and 165 Lane (112 households) had to petition to the government again. I received the news and immediately went to stabilize them. Riot cannot occur! I told them that the boss had promised to accept the mediation and you could also come to me for mediation if you wanted. We have held six mediation meetings for the residents of Lane 499. At first, many residents came, very angry, and slapping tables and cursing. When I offered them tea they even poured it out. It was so rude! So I asked them to send a representative, or else whom should I hear? Resident representatives could be recommended themselves or by others. According to the head of the Street Propaganda Office, Mr. L, residents were really angry. They also smashed bricks, took out knives, or even threatened to beat the Street officials. I asked them what can be resolved by violence. If you quarrel, you can go to court. Don’t make trouble with our SO! In fact, they had appealed before but because the house became legal, it was useless and the appeal has been failed with no results.

In response to the residents’ demand to demolish the “blockhouse”, Lin Yue Studio conducted another investigation on the actual situation before mediation. The house has now been sold to LH Company from N Group, but it still belongs to N Group. It is a legal property right transaction and is protected by law. Therefore, there is no way out for residents to make such a petition, which is unreasonable. Yet considering the noise, exhaust gas and illumination caused by the company’s vehicles, including the occupancy of space, it did have a great negative impact on residents. Lin Yue hoped that through mediation, the company could strive to make some “subsidies” for the loss of residents so as to make the two sides compromise and the conflict resolved.27 Because Lin Yue Studio is operated through the government purchasing services, it provides free people’s mediation services to residents and also has legal effect 26 Lin

Yue interview record, July 2009. Yue emphasized “subsidy” rather than “compensation”, because the company thought they were legitimate and did not admit that they should compensate for the residents. 27 Lin

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on the final signed people’s mediation agreement. Both parties to the dispute are willing to accept mediation. At the same time, as the RC has been complained and scolded by residents for a long time, this solution is also strongly supported and strongly encouraged residents to come to Lin Yue Studio. Secretary Y of the B RC also attended the mediation meeting, in her words28 : I’m very grateful to Aunt Lin. I know this hot potato is not easy to handle. We have also received numerous complaints and critics on the telephone calls, condemning that we cannot deal with it. I was also scolded by the residents, saying that how could I be a party secretary since I ignored the inhabitants here! Actually I know a lot about the Party members, activists, and residents of the community and tell them that only Aunt Lin can solve this problem because she has court lawyers that is notarized and she herself has full experience in dispute resolution. I admitted that I cannot solve it. It’s not that I’m insensitive or indifferent but powerless to solve it. Boss F also told me that this building is completely legal and reasonable, it is not his fault at all! But he should understand the outcome and must be responsible for the residents, at least to comfort and pacify them. He was grieved to death and regretted to buy the house. He felt that it was only condolence and subsidy rather than compensation in that he was legitimate and reasonable. But there’s no way now, just hope he can make concessions. Thank you, Aunt Lin! Without Aunt Lin, this cannot be settled!

The studio decided to adopt an easy-to-do approach and mediate in two steps. The 499 Lane residential building was located in the south of the “blockhouse”. Residents there could be invited first to cooperate with the RC since it was less affected by light and air-conditioning emissions. Residents’ representatives were invited to the studio to attend mediation meetings. Many residents who were actually not affected much and were not very active in the past protests just hoped to get some economic compensation. They were willing to compromise and reach consensus. At the same time, Lin Yue also went to F boss and told him that the she knew and understood his feelings and situation very well, but it needed to face practical problems and settle the conflicts among residents. Through communication between the two sides, the studio advised F boss to pay some money to subsidize residents. As for the residents’ request to deal with the problem of garbage cleaning caused by construction, the distance between the shelters can be written in the agreement in order to avoid future disputes. Since it was hard for the company to be in direct contact with residents, the studio acted as a third party to assist in mediation and communication. Till May 2008, 499 Lane residents and N Group finally reached a consensus. All 84 households signed mediation agreements. The “subsidies” they got was based on the impact of the “blockhouse”, mainly the degree of lighting, ventilation and noise

28 Interview

record of secretary Y of B RC, August 2008.

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that affected them. Those who were directly affected finally got thousands of yuan, with those of small impacts hundreds of yuan.29 According to Lin Yue30 : Every family came to me to collect the compensation. If they did not come, it means they would give up the money. Once they get the money, they have to sign the form and promise not to make troubles again. The company eventually compensated for 499 Lane residents less than 100,000 yuan, with the most two thousand and the least two hundred. Those 84 households are also of poor quality and only for money. They are psychologically comfortable when they got the compensation. Nevertheless, we also want them to make sure they do not make any more trouble when they receive the money. We have strict regulations here, with each agreement in every dispute and every step of progress. Every agreement has three parts. If any party violates the agreement, he or she can go to court to sue. This agreement is also legally valid. And in such mass incidents, I also want the informants to tell me about the opinions and reactions of the masses, and what actions to take. In fact, the RC also has a great responsibility for this matter but it was totally rejected by the residents in heart. Officials felt it no way to solve this problem, but only we can solve it.

Whether or not the results of the treatment could really satisfy 499 Lane residents, at least they terminated the action of safeguarding rights and got a certain amount of compensation. Therefore, after the event was handled, the residents jointly presented pennant to the Lin Yue People’s Mediation Studio (see Fig. 2). (2) Second step of settling disputes: competition at the mediation meeting After dealing with the disputes between 499 Lane 84 households and N Group, Lin Yue immediately contacted community informants and RC cadres. She invited 165 Lane residents to attend mediation meetings and informed them of 499 Lane residents’ satisfactory dispute settlement results. 112 households in 165 Lane are much more affected by the “blockhouse” than those in 499 Lane because 165 lane is located in the north of the “blockhouse”, which means that the light below the fourth floor is severely blocked, and the residents above the fourth floor cannot bear the heat of nearly 20 air conditioners exhausting at the same time in hot weather.

29 The People’s Mediation Agreement

signed by the residents of 499 Lane and the Lin Yue People’s Mediation Studio can be referred to Appendix 3. It can be seen that as a third party of mediation, the institution is still “N District J Street Mediation Committee”, which reflects the semi-official nature of the Lin Yue People’s Mediation Studio. It is not a completely independent institution. Yet the concept of government governance has changed from a management-oriented government to a service-oriented government. In order to realize the transformation of this function, “separation of government from enterprise”, “separation of government affairs” and “separation of government and society”, organizational entities are required to act as “intermediaries” connecting government with economy, government and society. Therefore, the studio in this study is a kind of semi-official organizations to undertake the government and society after the transfer of government functions. And it is one of the types of GONGOs (government operated non-governmental organizations). This is born in the socialization reform of community service in streets. In order to increase work efficiency and cater to social needs, the government transfers the functions of mediation of social disputes undertaken by streets through setting up such a studio. Streets and studios sign “contracts” to entrust non-profit organizations to engage in community services in a contractual manner. 30 Interview record of Lin Yue, August 2008.

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Fig. 2 499 lane residents pennant to Lin Yue People’s mediation studio

After the company’s operation, the noise of vehicles, the anti-theft camera at the door, the mosquitoes caused by greening plants in the courtyard, and office windows that are so close to residents’ house opposite that it may infringe the privacy of the residents all of which are the focus of complaints. In order to solve this dispute as soon as possible, Lin Yue studio has made great efforts to contact residents’ representatives and hold dispute mediation meetings so that everyone can put forward their ideas and requirements. And through the consultation between the studio and F boss, she tries to find ways to resolve the conflicts between the two sides. In June 2008, under the chairmanship of Lin Le, Ms. Zhang and another studio mediator, Ms. Zhang held the first 165 Lane residents’ mediation meeting. She took notes and assisted in coordination. The studio staffs were all wearing uniforms, and lawyers were also invited to attend the meeting in order to show fairness and facilitate residents’ representatives to seek advice. The residents’ representatives were 10 middle-aged and old people in 165 Lane, with 6 men and 4 women. Among them, Mr. Yang was one of the community elites and petitioner representatives as well as Aunt C, Mr. Zhang

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and Mr. Wang who had been over 70 years old.31 After the representative signed in, Lin Yue introduced the author as an intern in J Street and a doctoral student in university. At the mediation meeting, Ms. Zhang first introduced the recent progress of the work, exchanged views on the construction and use of the house and garden by communicating with Mr. F, owner of No. 28, 499 Lane, and rejected his unreasonable request. The studio also showed the drawings of the actual situation to the residents’ representatives (Fig. 1). It hoped that the residents would face the reality and stop making troubles. They could put forward their reasonable demands for rational negotiation and settle the matter as soon as possible through consultation between the two sides. In Mr. Yang’s opinion, most of the residents’ representatives were in favor of mediation because no one wants to struggle endlessly in the disputes. Since he was a teacher, his attitude was more moderate and rational. Although he was also concerned about the change of “blockhouse” from illegal to legitimate, he had no choice but to put forward his opinions on the standard of compensation32 : This house actually has little impact on some residents, especially those in 499 Lanes, since it did not obscure their light. But this group of residents had been compensated while 165 Lane had not yet, so it was easy to cause collective conflicts among residents. We feel that the compensation standard of 165 Lane should be higher than that of 499 Lane, because they are greatly affected. Today, the residents with the greatest opinions have not come yet. In fact, 165 Lanes are the main ones affected. After all, your staffs are not living with us, and they have no deep feelings. In my mother’s opinion, No. 22–30 are the most affected and should relatively get more compensation so that everyone’s interest will be balanced. In addition, people have always thought that this is an illegal construction, the question is who can we turn to manage this problem in these 14 years? I think that if we failed to grasp the main problem at the beginning, we should make it 10 years ago and maybe we can succeed. Now everything is legal, we can hardly sue them.

The biggest complaint of the residents was how this illegal building could remain here! But even if we knew that there might be some illegal problems, we had no evidence. Over the past five years, some of the residents had only been working with the RC and streets, but they had not directly addressed the problems of the building itself, making it a “fake building” into a “real building”. Especially when we petitioned before, some of us were not so united and gave up halfway. Later the house was empty for several years and the inhabitants had quieted down for five years, making it hard for us to go to court now. The buyer is not the first responsible person. I live in No. 30, the garden in the small yard has a great impact on No. 22-24, 31 90% of the residents’ representatives were CCP Party members. They had a strong sense of leadership and were willing to speak and act on behalf of the residents, reflecting the situation, thinking and conveying public opinion. At ordinary times, they would organize residents to participate in community work and activities, and they were more capable of speaking and leadership. Despite that some ordinary residents were not good at expressing themselves or some of them were unwilling to attend mediation meetings for personal reasons, everyone was very concerned about the outcome of this incident. 32 Lin Yue People’s Mediation Studio mediation meeting records, September 2008.

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and many mosquitoes are brought in. Some comrades with different opinions can also put forward your opinions and see how to deal with them. There are many radicals among the residents’ representatives, especially those who had lived for a long time and greatly affected. The old people who witnessed the emergence and evolution of the “blockhouse” were very angry. They almost shouted at the mediation meeting33 : We five houses, No. 22, 24, 26, 28, 30 in 165 Lanes, are greatly affected, and No. 28 even more affected! You (local officials) always say that you should and would pay more attention to the people’s livelihood, but we are very dissatisfied that you have not done anything! Many other people who have big complaints have not come today. How much troubles have we suffered since 1994-2008? The ground and second floor cannot get any sunshine and houses on the west side can get a little light for 45 min every day. It’s freezing to death in winter. This house is a “mischief-maker” in that we have complained countless times but always useless! You must understand the sufferings of the residents and have a confession to us.

With her long experience in mediating community disputes, Lin Yue would let the residents vent their dissatisfaction and opinions, which was also conducive to their emotional evacuation. Then, based on legal norms, human feelings and understanding, she explained and advised the residents in accordance with the law. At the mediation meeting, she also expressed deep sympathy for the inconvenience and interference that the residents had suffered for many years. But she always hoped that the residents would face the reality and only relied on the studio as the mediator since it was difficult to solve the problems through petitions and legal channels. She tried to talk to both of the residents and N Group Company, asking them to make concessions, with F boss offering subsidies to residents and residents stopping petitioning. But the key to the problem, or the most difficult part to solve was, as Mr. Yang said, this is a historical legacy, which involved the local government’s jurisdiction over the community and the violation of residents’ rights, but now it was difficult to fully investigate the whole problem. In order to confirm whether residents can rely on legal means to fight for their rights, the author interviewed Ms. M, a lawyer attended the mediation meeting. She told the author that the settlement of this dispute still had to reply on mediation because the house was legal in law, and it was difficult for the court to deal with it. Unless there is a clear proof of the standard of the space distance before and after the construction of the house, if it cannot exceed a certain distance, it can be considered that N company is illegal. Now given that the owner of the house had the legal title certificate, the residents usually would lose the lawsuit. Afterwards, the residents’ representatives returned to reflect the situation of the mediation meeting and the suggestions of the workshop to the residents. They also held a small meeting within them to reach agreement on the claim for compensation. During this period, Lin Yue also went to the community many times to talk with residents, and mobilized community informants and activists to mobilize residents to reconcile with their bosses, to settle the group disputes by giving compensation. A month later, they held a second dispute mediation meeting. In view of the close 33 Lin

Yue People’s Mediation Studio mediation meeting records, August 2008.

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links between Lin Yue Studio and other departments such as the Street and District Judicial Bureau, the superiors also attached great importance to this long-standing dispute and hoped to resolve it at the mediation meeting. (3) The third step of settling disputes: compromise, coercion until the problem is solved In July 2008, Lin Le Studio convened 165 Lane Resident Representatives to hold the third (and actually the last) dispute mediation meeting. The attending studio members are still Lin Yue, Ms. Zhang and another recording studio staff. But at this meeting, Secretary Y of the General Party Branch of the RC also came. Resident representatives were still middle-aged and the elderly people, with 7 women and 4 men, but there were several more new faces than last time. At this mediation meeting, the studio intends to emphasize to the residents’ representatives that they hoped to compromise to settle the dispute. If the residents could accept the compensation of the F boss, the two sides could sign a mediation agreement so that the problem could be settled thoroughly. It could be an end for everyone, and residents could stop spending time and effort in complaining for years. Lin Yue also told them about her difficult and interesting “debt collection” experience in communicating with F boss: I’m also trying to ask the boss for debt and settle this dispute. As soon as he saw me, he slipped away quickly and said that he was going on a business trip. I, an old lady, immediately jumped into his car and threatened him, “If you don’t promise me, you do not want to go on business, I’ll go with you in your car!” It’s a real shame for me! This money is really not easy to get. I cannot get a penny from it since mediation is paid by the government, all of the services are free. It is undeniable that the company’s air conditioning emissions, greening odor and so on are harmful to the health of residents, I hope he can consider compensation at his discretion. I’ve done it so far that my teeth are falling off! Of course, I know many residents still trust me. I hope everyone can cooperate with me. Today is the last mediation meeting!

With Lin Yue’s efforts in mediation and coordination, both sides eventually agreed to settle disputes by means of economic compensation. This was also because most residents, after failing to see the possibility of successful legal proceedings and petitions, understood that only by people’s mediation can they get more or less compensation. However, a few residents who fought for 14 years still refused to accept the mediation. For those better negotiable residents, Lin Yue went on to discuss with them about the issue of the distribution of compensation. Because different floors were affected differently, the standard of compensation should be graded. Lin Yue made suggestions after communicating with F boss. The biggest impact in Lane was No. 26–28. The “blockhouse” is a four-storey building. Therefore, there was no compensation for the buildings below the 4th floor of 165 Lane. Residents from the 4th to the 5th floors would be compensated for 900 yuan per household, and those from the 6th to 7th floors, which were more affected, would be compensated for 2000 yuan per household. If the residents are no longer satisfied, they could ask professional organizations to measure and evaluate, or go to the court to appeal. Aunt

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C, the resident representative, also agreed with the compensation standard, but she told me that some residents were not satisfied with it.34 Most residents are reasonable. They accepted the compensation just for the hope to stop the uneasiness and grievances in the community all day long. But in fact, it is also clear that many residents are not satisfied with the result and are still angry with the illegal behavior of the SO. I am also very helpless about this, to tell the truth! But there are some people who are very blackhearted. The more money they can get, the better. The demands they put forward are not in line with the extent of their influence. They say they would not stop complaining unless they get tens of thousands of dollars. Is that possible? And those who have been petitioning for 14 years are unwilling to stop! I also understand that but the key problem is that 100 per cent that they would lose the lawsuit if they go to the court. In fact, they would not get a penny without Aunt Lin! Those people are so eager to get money. They were happy to get compensation at first, but later they want more and more. There is no end to it.

Following the mediation meeting, Lin Yue Studio also discussed with the Street Judicial Office, which directly guided them, how to better settle the mass dispute. Everyone hoped that the residents would be free from 14 years of struggle, although some problems had not been completely solved, that is, the legitimacy of property rights caused by the legacy problems. The root cause was the imperfection of the system and the shortcomings of the system, and the lack of proper supervision and punishment for government officials who failed to perform their duties. But in order to quell disputes and settle long-standing confrontations, the streets and studios will join hands and take tough measures against the uncompromising residents, especially those “activists” who take the opportunity to riot, to persuade them to sign on their own initiative. According to Director W of the Institute of Justice35 : Now the problem is that three Party members (all heads of the building) prevent the masses from coming to collect money and sign agreements. They say that none of our Party members has taken it. How can you take it? And even exaggerated that they would pay them later! They hold emergency meetings in the evening, forbidding residents to collect money. Many residents dare not go to (Lin Yue Studio) to get it. Now the residents are a little afraid of them although some of them don’t believe them, making those who come to get money and sign the agreement become underground parties. Some residents still wanted to come. They cheated the party members by pretending to go out at night and actually got money from Lin Yue. Now I’m worried about the deceived residents, who promised to go to court and thought that they would win. The cost of litigation is more than 40,000 yuan and they are definitely ready to waste their money in vain. Although the RC is also doing their work, but they also have headaches for the die-hards since they are Party members themselves. They also promised that they would not make trouble, but they did not help us and the RC but even incited fire in the conflict. In fact, they were also for money. Those who claimed to use the “blockhouse” an activity room for the elderly are just seeking excuses because they want to get more compensation. Now we must take coercive measures against them!

Lin Yue was also determined to settle the dispute. She told the residents who insisted would not be able to stop them. But the problem was that the defendant was 34 Aunt

C’s interview records, August 2009. record of Director W, Justice Office of J Street, September 2008.

35 Interview

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unclear. Although some of them claimed to solve the historical problem, but in fact, the historical problem had passed. In view of the legitimate property right houses, we could only try our best to get compensation. Only by compromise could we solve the conflicts. Through Lin Yue’s coordination and persuasion to both sides, together with the RC’s mobilization, many residents accepted mediation agreement and went to the studio to receive compensation and sign agreements. By mid-late July, 79 residents of 16 Lanes had accepted the mediation results, received compensation and signed three copies of people’s mediation agreement with the studio. Only 5 out of 91 households were not contacted due to the absence of their owners, while the remaining 7 households still insisted on resistance. At the end of this “blockhouse” incident, although the studio has appeased most of the residents, there were still many die-hards among the masses, and the results were not satisfactory to everyone. Several residents who came to 165 lanes to receive compensation said36 : Basically, every family comes to sign the agreement. It’s very formal and each party will have one, one for the residents, one for the studio and one for the boss. When we went to get the money, especially when some families got 2,000 yuan, we were very grateful to Aunt Lin. We were very satisfied. Old J, who had little contact with Lin Yue before, said excitedly when collecting money in his studio: You are Lin Yue? You are so famous and admired by us! Up to now, the SO is fully unable to resolve this conflict and it is all led by you. The RC has no practical ability to solve this problem either. I really appreciate it.

These residents can accept and thank Lin Yue mainly because they did not participate in the collective petition and struggle at the beginning, and their families were not the most affected, so they were satisfied with the fact since they could get some benefit compensation. However, several families who had experienced long-term protests and were seriously affected by the “blockhouse” still refused to sign the agreement. Among them, the elder M was also a “big problem” and he still could not accept the compensation standards and treatment methods37 : Aunt Lin is kind enough to get us out of this long-standing dispute, but some problems cannot be solved just by a little money. In fact according to law, this illegal building should be demolished! We would appreciate it if Aunt Lin could solve it, I can even kowtow to her! But if it is not solved, we will continue to do it from generation to generation!!

As the head of N Group, the owner Mr. F, who calmed 499 Lanes, has already paid more than 100,000 yuan as compensation. Now he had to pay nearly 100,000 yuan to 165 Lanes. Besides grievances, he did not understand why he should compensate residents for his completely legitimate property rights transactions. In his own words38 : I did pay for a big lesson, but it was too expensive. It’s just that I paid the contract lightly without knowing the background. I’ve lost a lot of money before my business started. And I’ve been upset by them for a long time. That’s terrible! 36 Interview

records of community residents, August 2008. record of Old M, September 2008. 38 Interview record of Mr. F, July 2009. 37 Interview

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It is understandable that the F boss’ willingness to compensate for the residents was also a compromise made for the sake of social stability. Everyone in the community had always been concerned about the “fundamental” legacy of history, but helpless. But from the point of view of the mediator of Lin Yue Studio, Ms. Zhang of the studio told the author39 : This result has been ideal and it has been handled very well already. In fact, a few of them (diehards) are trying to seek their own interests under the disguise of seeking justice. They are making unreasonable complaints and just asking for more money.

Of course, this is a common idea as a third-party mediator. Lin Yue even thinks that it is unreasonable for some residents to offer unreasonable compensation amount, and it is impossible to satisfy and realize all of their wishes. For those residents who wanted to continue protesting, Lin Yue told them that they could continue to fight lawsuits, but there was no way out. At the same time, taking a building near the “blockhouse” as an example, the surrounding residents had also protested for it greatly affected their lives. The compensation price they wanted was very high so they could never accept the amount of the developer’ compensation. Unfortunately, the final result was that the residents cannot be compensated for a penny. The failure of mediation could not benefit any party. Through this case, we can see that there has always been a power struggle between the people and officials, and there is a clear power imbalance between the two sides of the struggle. Although residents rely solely on petition to pressure the government and the SO, it is not guaranteed that their interests can be protected and secured. In the next few months, as the Olympic Games were held in China in August 2008, the major cities took maintaining social stability and harmony as the priority to create a good environment for the successful hosting of the Olympic Games. Therefore, the streets did not mobilize and persuade the seven unresolved residents to prevent them from intensifying their emotions and taking radical actions.

3 Backdoor Storm of Fumanlou Restaurant The third long-term dispute settled by Lin Yue People’s Mediation Studio was a community collective dispute caused by serious pollution of the community public environment at the back entrance of a hotel in the community during its business period, which posed a threat to the safety of residents and seriously disturbed their daily lives. A large number of residents had also protested against the damage of their interests and the infringement of their homes through petitions, collective sitins and demonstrations at the government gates, demanding due compensation and punishing hotels. Compared with the previous two cases, the complaint was not directly related to government agencies because it did not involve historical issues. It was much easier for the mediation studio to intervene quickly and settle it. It also 39 Records

of Ms. Zhang’s interview, August 2009.

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had greater freedom and discretionary power compared with the previous two cases. The government and the streets would not interfere with the process of the studio. Moreover, residents were more satisfied with the results of the settlement, leaving no latent danger of subsequent disputes. The Fumanlou Hotel was located in the east of J Street. There were two doors in and out of the hotel. The back door connects with the community residential area, and the problem lies in the back door. According to Mr. Lin, a resident who participated in the dispute at that time40 : There are rules in the community that the back door of this restaurant must be locked and closed regularly, and only their staff can use it at most because backdoor mobility will affect the safety of the people behind us. The doors in front of the hotel are the main access inside. But the reality is that since 2000, the hotel has kept the door open. More than a dozen employees come in and out through the back door, sometimes transporting materials, sometimes carrying food for delivery. What’s unbearable is that they always pour leftover food and garbage out of the back door. Later, the back door is completely empty and everyone could enter it at will. The environment is dirty and disgusting. Soup is poured underground and leftovers from bones are poured directly to the roadside. As soon as it gets hot, flies and mice are coming. Of course, people have very strong opinions. We used to have a lot of people come to the store to ask to see their boss, but the boss avoided seeing them. He just sent a manager to apologize to us and tell us that they would deal with it as soon as possible.

If the boss of Fumanlou Hotel apologized when it received the residents’ kind advice and friendly reminders, and took action to improve the environment as soon as possible, stopped the negative impact on residents’ lives, there might be no fierce collective conflict afterwards. Yet whether because they did not inform their bosses at all or the bosses simply ignored the complaints of residents, they not only continued the previous “pollution behavior” and but also made the situation even get worsen. According to another protesting resident representative, Mr. Chen41 : At that time, people were very calm and just asking questions. The hotel was advised to pay attention to hygiene and consider the situation of the residents. Residents hoped that they would understand that the environment of the corridor was unbearable, but the staffs of the hotel simply ignored it. Later, I went to the RC to complain that they must stop throwing rubbish in the back door. When the mediation director of the RC came out, he saw that the situation was serious and really dirty and asked the “Fumanlou” to close the back door in order not to destroy the public environment of the community. Under pressure, the hotel boss also agreed to install electronic doors, promising to pay attention to the health situation and ensure the safety of residential areas. But very soon, the electronic door became a pure ornament. It was originally installed to ensure boss kept the door open with a stick until one or two o’clock in the evening, and the safety of the people was still not guaranteed. And they (hotel cleaners) actually threw the leftovers such as shrimps and bones on the ground of the backyard, resulting in cats and rats running in the evening. Even worse is that many people urinate there as I can see! That place will never dry. Every morning when we get up, the shrimp skin is in piles and rats are running to the residents’ houses. We really hate this so much! How can such behavior be tolerated? Where have all the government law enforcement agencies gone?!

40 Interview 41 Interview

records of community residents, July 2008. records of community residents, July 2008.

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The back door of the hotel had seriously affected the hygiene, safety of the residential area and the noise generated by night entrance and exit. Residents of the community insisted that the hotel close the back door but despite this incident existed for many years, the RC had not been able to deal with and had not been properly handled it. Yet with the increasing development of Fumanlou’s business, it is almost unbearable to the residents. In 2006, the residents, led by several representatives, went to the district government to petition collectively. From the community residents, we knew that the owner of the hotel paid much attention to business but lacked morality. He not only ignored the environmental pollution of the restaurant and the damage to the community residents’ lives but also emitted loud laughter and noise which seriously affected residents’ life since it opened till very late every night. When the residents came to the district government to submit a complaint letter, the district government transferred the letter to the street. The street also reported the matter to the owner, but there were still no substantive requirements and penalties for the hotel. The situation had not been changed and improved. Until June 2008, when residents kept protesting, the street reflected the situation to Lin Yue Studio. The studio attached great importance to and took the initiative to intervene. It immediately assigned Ms. Zhang, the agent of petitioners, to take charge of the matter. She tried to calm down the residents and control their anger to prevent their excessive behavior while informing them that they could come to the studio for discussion and making sure that everything could be solved through the mediation of the studio. First of all, the studio made a preliminary statistics through the survey. There were 40 residents affected by the back door of Fumanlou Hotel. They heard that Lin Yue studio could solve this problem since Lin Yue is so famous for resolving disputes in the community, so they came to the studio with a large group of people. When everybody was angry and noisy, Lin Yue asked them to send residents’ representatives who were impartial and could reflect the opinions of the masses and had authority to speak. Therefore, the residents sent eight representatives, including Lao Chen and several middle-aged men. Lin Yue first stabilized their emotions and told them that their task was arduous and challenging. In dealing with disputes, everyone could not be satisfied, but we could work together to achieve perfection, so that all parties had a satisfactory result. Thus, at the preliminary meeting held in the studio, eight representatives sorted out their opinions and general requests. After understanding the problem, key points, difficulties and residents’ ideas, the studio quickly communicated with the hotel owner. Lin Yue went to the boss and told him42 : You are for profit, it is no fault! The common people are for a safe life and a comfortable living environment, it is also no fault right? Their purposes are different but normal. But if you damage people’s interests in the process of making profits, I have to say something for the people. Boss Zhao, What if you live here, would you be happy? Will you feel comfortable? You run business to make money, it is all right! But you run until 3 to 4 a.m. and with a lot of noise, do the people around still need to sleep?! 42 Interview

record of Lin Yue, August 2008.

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According to Lin Yue, when the studio met the hotel owner for the first time, the owner was very arrogant and unfriendly. He did not respond directly to Lin Yue’s advice. After listening, he only said: “We are taxpayers, we paid taxes, and our rights should be protected!” But Lin Yue believed that all of the public goods in the community also belonged to the taxpayers. She still persuaded boss Zhao43 : It is your duty as a food industry to pay taxes to the state. What’s more, paying taxes is not equal to infringing on the interests of the others! If you try to persuade people by reason, you cannot say that because I pay taxes so I have the right to infringe on the interests of the residents. Our government will not ignore this! Now we have not asked you to close the door since I also want to protect your rights. You should have a clear mind and do not make mistakes!

After listening to Lin Yue’s persuasion and warning, the boss seemed not afraid at all. He asked the studio to ask the Tax Bureau to come and if the Tax Bureau asked the hotel to close the back door, they would then close it. In response to the boss’s attitude, Lin Yue further warned him44 : Good! It’s not hard for us to do that. If you insisted (on the wrongdoings), your business may be affected. Residents here have already hated you so much that they are ready to make trouble with you in the long run. Now we can control their emotions and tell them to stop making troubles to you. We can mediate them but in case you do not cooperate, I cannot guarantee your interest later on. Don’t ask me to mediate then!

Threatened by Lin Yue, the boss thought that it might seriously affect his business. He said that he could not allow the residents to make troubles and began to make concessions. At this time, Lin Yue seized the opportunity to tell him45 : You should listen to me. There are more than one restaurant in this community. They can close their back doors always but why cannot you do this? Should we only consider the convenience for ourselves but lack of social morality and ignore the living environment of the residents? You should think about this clearly and don’t cause yourself more unnecessary trouble!

Under the warning of the studio, boss Zhao began to compromise and asked the studio to make the residents stay away from the hotel. He promised to close the back door as soon as possible. But just before the back door was sealed and the migrant workers and materials were ready, there were twists and turns. The boss actually asked the migrant workers to fight with the residents. According to Lao Wang, a resident who fought with hotel workers at that time46 : This boss is absolutely not a man! At that time, they promised to close the door. As a result, a large group of them came out and said that our boss said the back door could not move! Of course, we are very angry because the studio said that the boss has promised to close the door and told us not to quarrel with them. Now, he has no credit at all! So I was afraid of him then! Everyone started fighting. They hurt my back because they were carrying tools. 43 Ibid. 44 Ibid. 45 Ibid. 46 Interview

records of Lao Wang, August 2008.

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As soon as the residents were beaten, the conflicts between residents and hotels became more and more serious. Lin Yue led the studio members to meet the owner immediately and told him that now the SO supervised and paid for the construction and it must be carried out as soon as possible to guarantee safety and peace for the people. The boss has lost his credit given what he promised cannot be fulfilled. Even worse is to let the migrant workers to fight with the people, which seriously undermined the safety and order of the community. The studio also told the boss47 : People are so angry that they threaten to duel with you. The SO has also paid close attention and urged to manage this matter. The deputy secretaries have all come forward to ask, do you agree or not? Do you still want to continue your business? Should we wait for the public security to deal with it?

Under the pressure of both the studio and the government, boss Zhao finally agreed to mediate and negotiate with the community residents to compensate for their loss and undertake to improve the backdoor environment. At the coordination meeting, Lin Yue again persuaded the boss to follow the rules in business and the community. Taxpayers are not barbarians! She also warned him again that if he did not behave uncivilly again, the Bureau of Industry and Commerce would stop the business right of “Fumanlou”. If he wants to continue, he must keep his promise and stop destroying the environment of the community and affecting the daily lives of the residents. In order to solve the dispute thoroughly, Lin Yue contacted the street leaders and went with them to the N District Tax Bureau and the Commercial Committee together. They went to the scene, accompanying with studio staffs, to supervise the boss to block the back door and asked him to promise not to open again. At this time, the residents’ representatives applauded and cheered together, expressing appreciation and thanks for the handling and settlement of the studio. Mr. Wang, who joined the disputes, told Lin Yue that he felt it was his duty as a member of the community to stand up and speak for the residents. He also lamented afterwards48 : Many residents cannot bear it anymore and have to fight. I also do not hope that the situation would get deteriorated and serious incidents happen. We should all convince people by reason rather than by cajoling and fighting with others, otherwise the conflict will intensify! This boss is so cunning that he has cheated us many times! We are also very grateful to Aunt Lin Yue, who acted as an intermediary to help us resolve the conflict. We residents cannot contact the official but she make the problem resolved and the boss dare not resist at all. After so many years of trouble, this matter has finally been solved. On the contrary, it strengthens the unity of the residents in our community. Everyone will work together to take care of everything in the future.

So soon after the second coordination meeting which was held in the studio, the two sides signed a mediation agreement. The Fumanlou Hotel agreed to close the back door and the goods would not go from the back door any more. As long as the back door was closed and the use of the goods was prohibited, the people would have no objection. The whole thing lasted from the Spring Festival to the summer, the boss began to disagree with closing the door so his strategy was to delay. And the 47 Studio

interview records of Ms. Zhang, September 2008. with Mr. Wang, September 2008.

48 Interview

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studio also flexibly seized the weakness of the boss in mediation, warning him that his business would also be unable to do if he violated community rules and infringed on the rights and interests of residents, letting him understand the strictness of his behavior. This dispute has finally settled and the community residents got a peaceful and clean home. In the process of resolving this conflict, Lin Yue took advantage of the support of the SO to deter the hotel boss with strong profit-making mind and succeed in preventing further adverse impact on local people’s lives. During this period, due to the lack of credit of hotel owners, his repeated deception of residents, and constant fighting with the residents, it led to years of disputes that were hard to settle. Lin Yue Studio, in collaboration with the streets, tax authorities and business commissions, jointly put pressure on the hotel owner to make concessions and keep his promise to block the back door. This reflects that in the process of community governance and conflict resolution, Lin Yue People’s Mediation Studio has close cooperation and contact with government departments and can get support and assistance from superior departments when necessary, which has direct and obvious effects on quickly resolving mass incidents and controlling collective disputes within the community. This is precisely the role that the government needs the studio to play so that the conflicts between residents and the government have a buffer zone, reducing residents’ direct complaints against the government. When disputes are settled, residents feel satisfied, it also increases the trust, satisfaction and support of the people to the government, which is a good result of dispute settlement. As Director W of J Street Justice Office said49 : Lin Yue Studio has solved this collective dispute very well. Otherwise, we can imagine that the residents will make more fierce conflicts with the hotel owner in the angry mood, resulting in more severe impact and make the situation out of control. Our aim is to maintain the stability and harmony of the community. We should stop the hotel’s illegal behavior but it cannot be too arbitrarily and forcibly. Now Lin Yue studio can combine law and reason together and make the boss happy and convinced, and the people are also satisfied, this is quite ideal. We also admire her capability of dispute resolution!

4 Analysis on the Differences of Dispute Handling Ways Among Different Levels of Social Disputes Previous studies on differences in conflict management in different cultures have shown that in the face of interpersonal conflicts, Chinese people tend to use smoothing and avoidance to deal with conflicts and pay more attention to the maintenance of interpersonal relationships than Americans (Ting-Toomey et al. 1991; Chen and Ma 2002:130, 131). Affected by the collective culture’s emphasis on unity (Bond et al. 1985) and the Chinese are unwilling to take radical approaches to face-to-face negotiations but preferring to resolve conflicts through mediation (Jia 2002; Clarke 1997; Wall 1990) in order to ease tensions between the parties to the conflict, it is conducive 49 Interview

with Director W of the Justice Office in J Street, July 2009.

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to the maintenance of long-term harmonious relations, while Americans use a direct attitude, as long as the matter is resolved to allow the existence of confrontation or even fierce confrontation (Tse et al. 1994). Yet through the observation and study of collective conflicts in this book, it is found that in Chinese society, when the number of people involved in conflicts reaches a certain scale, i.e. when there is a collective conflict, the opposing parties, especially the party whose interests are damaged, tend to face up to the conflict directly and ask to negotiate with the other side, trying to find out specific solutions or even “seek justice” and fight for a long time. On the contrary, they will not try to avoid or smoothing which stressed interpersonal relationships but turn to violent fighting and beatings, repression and other means to try to defeat each other. At the same time, we can see that in Chinese society, due to the flawed legal system and the inadequate communication channels between the government and the people, when it is difficult for residents to protect their rights through mutual consultation or mediation by government departments, they will resort to law to seek mandatory ways to solve the problem, but usually this is not their preferred way of solution.50 Moreover, the book’s investigation and research finds that in Chinese cities, not only the way to deal with conflict is affected by the level of conflict but also the way to administer mediation agencies is not limited to the five ways in Blake and Mouton’s original model, which has more connotations in specific situations. This book will make a concrete analysis by combining the cases and model, and adjust and modify the original model to make it more suitable for interpreting the situation of conflict management in Chinese society. Through the concrete demonstration of three cases of collective conflicts in J Street, N District, Shanghai, this book reflects the characteristics of collective disputes in different degrees in Shanghai community and the differences in the ways of dealing with them. At the same time, through the process of mediation of the two disputes after the intervention of Lin Yue People’s Mediation Studio, it reflects its important role in connecting the people and the government. The studio not only calms the resentment and discontent of the residents for a long time but also provides a way for the residents to solve the problem in the system and out of court, and recover the corresponding compensation for their lost interests. Through the process of concretely resolving community disputes, we can see that the intervention of Lin Yue People’s Mediation Studio in resolving disputes is a new mechanism and strategy adopted by the government to deal with social disputes, and to a large extent is an extension of the administrative means of the government. This kind of “half official and half civil” organization is one of the diversified ways to solve disputes that the Chinese government is facing with a large number of collective disputes. Lin Yue herself has been named “the hero of peace” (pingan yingxiong) many times and has 50 In Chinese culture, civil mediation has been more used to solve social disputes because court decisions are regarded as a way to settle disputes that destroy interpersonal relationships and cost a lot. Legal actions are usually taken under compulsion and thus become mandatory means of managing disputes because the parties must execute the judgment result. Residents will not choose to litigate in the first place when they encounter disputes but to seek the assistance of mediation agencies or government departments to coordinate and resolve disputes.

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been strongly trusted and supported by the residents. Because she has rich mediation experience and enthusiasm for work, a broad network of community residents and gains people’s trust and support, the government will pay more attention to and support Lin Yue and the establishment of a studio named after her by investing fixed funds and political resources. This is also a manifestation of the state’s conscious cultivation of social elites to serve them. Three cases also show that under the state-led system, serious collective interest disputes will have a huge negative impact on the life and society of community residents, and induce more the government interventions. The party whose interests are infringed will prefer to adopt a more coercive approach (court decisions) rather than mediation to solve the problem. For moderate or general disputes, in order to reduce the amount of litigation, the Party-state advocates the development of diversified people’s mediation institutions operating in the way of government purchasing services and the resolution of conflicts by means of people’s mediation institutions other than strict laws. Relatively speaking, mediation agencies pay more attention to the feelings of the parties in the way and means of dealing with disputes, trying to reach consensus through consultation between the two sides, and try to make the problem solved satisfactorily. However, when there is a difficult, deadlocked situation or it is difficult to form a consensus, the mediation agency will not rule out the use of mandatory means to require both parties to accept the solution and stop the conflict. For example, the studio in the case takes “settlement demonstrates the skill” (baiping jiushi shuiping) as the concept of dealing with social disputes. The government needs to rely on the studio to deal with and resolve the daily conflicts in the community, especially collective disputes, not only because the studio can act as a “safety valve” and “buffer” for all kinds of disputes but also for its direct and effective resolution of neighborhood disputes, marital and family disputes, compensation disputes and other interpersonal conflicts in the community. Reasonable solutions are the guarantee of community safety and stability. As a “third party” of mediation, this role cannot be replaced by anyone in that in addition to the basis and social prestige that the mediator himself should have to convince the residents, he or she should also need to have the authority formally entrusted to him or her. The authoritative basis of independent mediation in studio comes from the government’s promotion and support. It also enjoys a smooth cooperation with the courts, police stations and other agencies to intervene in the resolution of disputes. In the actual mediation process, the studio combines the organization’s “authority” with Lin Yue’s personal face and prestige, and when it cannot solve the problem independently, it turns to the government departments and other relevant agencies to solve the conflicts together. As a civil non-enterprise social organization, the studios often highlights that they do not rely on the independence of the government in order to more effectively resolve community conflicts. But in fact, the relationship between the studio and the government’s “as if they are separated”, to a certain extent, reflects the characteristics of the state-led community mediation agencies in dealing with disputes, i.e. half official and half civil (banguan banmin) and the combination of officials and people (guanmin jiehe).

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The case shows that dispute mediation is greatly influenced by Chinese traditional culture, especially in the way of dispute resolution and understanding, as well as the result of dispute resolution. In dispute settlement, the studio pays great attention to the factors of Chinese traditional culture, such as human feelings and face, besides analyzing the problems from the legal point of view and considering from the standpoint of both sides. Although residents of J Street live in Shanghai, an international metropolis, the traditional concept of harmony and non-litigation is still deeply rooted in the hearts of the people because everyone considers that living in a community, the maintenance of friendly relations is a long-term goal, while resolving disputes, we need to pay more attention to the future neighborhood friendliness. And such ideas and discourses can really play a role in the settlement of community conflicts. Therefore, Lin Yue also pays special attention to the use of “emotional, rational, legal” combination of working methods, in view of the local situation and culture of the community, more effectively solve disputes. After the conflict is settled, both the evaluation of the outcome of the conflict and the understanding of the way to deal with it are affected by the specific environment. In some cases, coercion may solve the conflict more effectively and satisfactorily than compromise, while in some cases, more moderate means are needed (Rahim 1997). This is consistent with the hypothesis behind Blake and Mouton’s five conflict-handling models, reflecting that the way conflicts are handled varies with time and place (Van De Vliert et al. 1999). Moreover, in the specific environment of urban communities in China, the commonly accepted ways of coercion and avoidance in western society have different meanings, and people have different understandings and feelings about them. Based on the “three-dimensional classification map of the severity of group conflict” designed in Chap. 2 (see Fig. 2), the rank of group conflict is divided into general conflict, moderate conflict and serious conflict according to the score. The model corresponds to the three cases in this chapter. According to the above criteria, the violent conflict in Qingfeng Community involves more than 500 households. When the conflict broke out, hundreds of urban administrators and migrant workers from development companies participated in the suppression of residents, so the number of people exceeded 1000 (3 points); Violent assault on residents in the conflict resulted in serious personal injury of some residents, so the degree of violence is very high (3 points). Behind the incident, there is the relationship between real estate developers and government departments (city management brigade), which is closely related to the government (2 points). The three aspects are combined into 8 points, which means it is a serious conflict. In addition, the incident is also sudden, and the intensity of the conflict rises sharply in a short period of time, which belongs to a serious violent conflict. The second case involved 112 households of 499 lanes and 165 lanes of B neighborhood committee in J Street. The number of residents was nearly 600 (2 points). Although violence and assault were not used during the conflict, residents tried to appeal, petition and various complaints against neighborhood committees and streets, so the level of violence was low (1 point). The source of the “blockhouse” incident

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(Degree of Violence) Fumanlou (general conflict) Qingfeng Community (serious conflict)

Blockhouse (moderate conflict) (Number of people)

(Relationship with the government)

Fig. 3 Distribution chart of seriousness score of collective disputes in three cases

was the long-lasting community disputes caused by corruption by street government officials, which had very direct relationship with the government (3 points), so the overall score is 6 points, belonging to moderate conflict. The third case is about the “Fumanlou” Hotel’s back door environmental problems which triggered community conflicts involving 40 affected households but less than 100 people (1 point); this conflict has no direct relationship with the government (0 points); but during this period, the hotel owner instructed employees to beat complaining residents, involving moderate violence (2 points). So the comprehensive score is 3 points, belonging to the general conflict. Figure 3 shows the score distribution of three collective disputes. From the cases, we can see that the severity of collective disputes has a great impact on the means of dealing with disputes. At the same time, the relationship between the content of the dispute and the government will also affect the degree of attention and involvement of the local government. When the content of the conflict is “closely related to the government”, the people’s mediation agencies will adopt more coercive means to solve the problem, and if the conflict has little or nothing to do with the government, mediators will also try to compromise and accept the mediation plan through negotiation and conciliation. In the “Qingfeng Community” incident, the residents caused conflicts because of their resistance to the developer C company since it occupied the public roads in the district. They were beaten and repressed by the city management and company personnel. After the bloodshed incident, it caused the strong anger of the residents. After the outbreak of the conflict, because the incident affected many residents and had a great impact on the whole city through media coverage, the public security and armed police launched a compulsory stop to the recurrence of violence in order to stop it from escalation. But this was not the outcome of the incident. Facing the strong conflicts and the fierce confrontation

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between residents and developers, the government has attached great importance and assigned special personnel to investigate and coordinate the incident in an attempt to solve the problem through mediation. However, the residents could not accept the coordination of the government after suffering from interest infringement, strong grievance and injustice, and finally resorted to law to solve it. In the view of residents, the legal approach was the most mandatory means, which could make developers stop infringing on the interests of residents and recover justice. The “legitimate violence” belonging to vulnerable groups is an explicit repression. Of course, it needs to be explained here that the solution of law is different from that of oppression. To be exact, coercive means to calm conflicts is to achieve the goal by repression with physical attacks. Sometimes, in order to control the situation, such repression will lose its moral correctness. The moderate collective conflict of the “blockhouse” incident lasted for 14 years, but because the residents themselves only used the “weapon of the weak” to fight and did not use violence, the studio tried to adopt the “problem-solving” approach in dealing with it. Through negotiation, the two sides reached an agreement on the more “moderate” residence. For the more “moderate” residents, compromise can resolve the conflict. Although it cannot solve the fundamental “legacy problems”, it can at least stop the resistance of the community residents and also enable the F boss to get rid of the residents’ entanglement and trouble-making. But for a small number of diehards, because the incident involved the illegal actions of the street government many years ago, the studio, as a mediator of the government purchasing services, jointly warned them in the official name with the street that they destroyed the harmony of the community and deliberately nurtured disputes. If they did not compromise, they would take coercive measures to deal with them. Although the studio did not actually force residents to accept the mediation scheme, the warning and pressure used by the studio can be considered as implicit repression. In the process of dealing with and coordinating the street-related conflicts, people from the Street Judicial Office have also been involved in the mediation meetings. The director of the Judicial Office also indicated that the government should work with the studio to resolve the conflicts. The studio is also given specific independence for coordination and investigation, with the SO just provides necessary resources and support to it. The collective conflict caused by the back door of Fumanlou Hotel was of low severity, which was caused by the general community collective dispute due to the hotel’s ignoring the community environment and its business seriously disturbing the normal life of residents. In the whole process of handling the incident, the government basically did not interfere and participate in the mediation led by Lin Yue studio, which took into account the interests of both sides of the conflict, combined the “emotion, reason and law” in local culture, and tried to settle the dispute by solving the problem while maintaining the community interpersonal relationship as far as possible. The studio also tried to maintain the interpersonal relationship in the community while stopping disputes by attaching great importance to people’s feelings during dispute resolution. Although the conflict inevitably damaged the relationship between residents and business operators, it also strengthened the unity within the community residents to a certain extent. As Mr. Wang, a resident involved

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in the case, said, “After all these years of trouble, the final solution had enhanced the unity of our community residents.” The positive function of this conflict was also fully reflected in two other cases (Coser 1956). This also overthrows the previous findings. Yu (1997:82) shows that Chinese people often regard conflicts as destructive and negative. In fact, Chinese cities are similar to Western societies. Conflicts are considered to have many positive functions, which can motivate people to take better ways to solve long-standing problems (Millgate et al. 1974:5). Although the cases in this book are insufficient to prove and cover all cases of collective disputes, they can, to certain extent, reflect the general situation from the typical case analysis. When facing disputes in different situations, the degree of violence and the relationship with the government will greatly affect the way of handling disputes and the degree of government intervention. These jointly determine the extent to which the government gives freedom of managing disputes to social organizations. Serious collective disputes tend to be settled by compulsory means in order to prevent the deterioration and further intensification of conflicts, resulting in huge social hazards and adverse effects and destroying social stability and harmony. When the conflict is moderate or the severity begins to weaken, people’s feelings will be more concerned in handling it. Mediators will give more consideration to meeting individual’s wishes and requirements within the allowable scope. The combination of coercion and compromise is the more adopted way. For general conflicts, both the people and matter will be taken into account when dealing with conflicts so as to maintain and restore interpersonal relationships while resolving disputes through “problem-solving”. Of course, in the face of various and complex disputes in reality, no matter the conflicting parties or mediators will integrate various means of management and make flexible response to specific circumstances. Ultimately, the unanimous goal pursued by all parties is to achieve the most effective way to settle disputes (Hu 2011). Current cases of collective disputes in urban communities in China confirm that authoritarian countries lack mature civil society, social organizations are rather weak, and community resistance has strong spontaneity and low degree of organization, which makes it difficult to supervise the government. With the flaws in the rule of law development, the legitimate rights and interests of residents cannot be effectively guaranteed. In particular, when serious conflicts occur, the government or mediation agencies will use more coercive means to deal with disputes, because such conflicts will lead to crisis management and difficult to control the situation, threatening national security and social stability. The government will pay great attention to and intervene in the incident, and even use the army, armed police and public security to help settle disputes and stop deterioration. But this only happens when it has no choice, because the cost of violent repression is also very high, and may lead to bloodshed or involve the safety of the people. While moderate conflicts or when serious conflicts gradually ease down, the degree of government intervention will be reduced or not involved at all, while the courts and people’s mediation agencies will deal with them. In the way, they will also shift their attention from solving problems to emphasizing people’s feelings and adopt means of compromise and conciliation,

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but it does not rule out the use of coercion when necessary. For general conflicts, the participation and involvement of the government is usually less. It is generally handled entirely by people’s mediation agencies and some social organizations recognized by the government in an attempt to achieve satisfactory results for all parties to the conflict. In addition, the way conflict is handled is not only affected by the severity of the conflict but also closely related to the specific social background and environment. Applying Blake and Mouton’s five conflict resolution models to the analysis of urban community disputes in Shanghai, we can find that they are influenced by local culture and social environment and their meanings and understanding are different from those in the western environment. First, in the original model, forcing refers to imposing personal will or goal on others’ will in order to achieve the goal of resolving conflicts. The study in this book finds that in Shanghai community, the means of “forcing” in different situations have different connotations. When the two sides of the conflict are unequal in power, the strong side can force them to obey their own arrangements for conflict resolution through their own strength, regardless of the wishes of the other side. And there are explicit and implicit coercion, that is, the specific act of forced obedience and verbal warning of the other side. They will need to bear the result if they do not obey.51 The original meaning of compromising is to achieve mutually acceptable solutions through concessions made by all parties. Yet in the specific situation of Chinese cities, coercion and compromise are often two-way interaction between the parties. When one party adopts coercion while the other party is conditional to counter-coercion, they can make concessions to each other. And Most of them achieve the minimum cooperation between the two sides (such as signing documents). From the conflict of “Qingfeng Community”, we can see that the public interest of the residents - the road of the district was occupied by the developers, and the residents were prepared to forcibly stop the company from starting construction in the case of unsuccessful consultation while the company was also taking forcible violent confrontation. This resulted in a compulsory verdict of the court, which both sides had to be accepted and enforced. The warning of studio to the stubborn residents who refused to accept the mediation scheme in the “blockhouse” incident is a kind of implicit compulsory way, because the studio has got the support of the government and also fulfilled the task of resolving the conflict in the community. Its strength and status are always higher than that of the ordinary community residents. But after the verbal warning, the studio still adopted a “compromise” to ask residents to compromise and accept the solution. This can be referred to the analysis model of Shisei’s dispute resolution process. He established a compromise-compulsion baseline. The components of compulsion or compromise in interpersonal disputes flow according to the strength, supporters, interests and participation of both sides (Takashio 2004:7–14).

51 Xu

Xin’s (2005: 126–129) interpretation of compulsion in Sili Jiuji (Private Relief) includes behavioral compulsion and psychological compulsion, direct compulsion and indirect compulsion.

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Secondly, although the cases in this book do not mention how to resolve conflicts by avoiding and smoothing, in Chinese urban society, avoidance is not only a deliberate avoidance of conflict events, other parties or situations but also include a “cold treatment” of events by delaying. At present, the common situation is that when the collective conflict directly involves the government, although the petition department or mediation agency will investigate and intervene according to the degree of the incident, it will often be shelved by the government. In the “Qingfeng Community” and “blockhouse” incidents in this chapter, the affected particularly the injured residents all had petitioned against the government in the past, most of whom in the way of letters and visits, but they had not been able to get concrete solutions for a long time after being accepted. This seemingly “non-confrontational” approach can actually have a fatal impact on social relations because it ignores the accumulation of the parties’ discontent. The result of procrastination is often the failure to resolve disputes but intensification or transfer of confrontations, which is actually more likely to lead to more serious violent incidents when the parties lack rational minds In addition, the study of this book also finds that smoothing can be regarded as a rational choice of the parties after weighing the pros and cons. Because in fact, the way to appease the interests of others over their own interests or goals is usually in the case of great disparity between the two sides of the conflict, one side dares not or cannot resist, the strong side makes the weak side stop fighting by giving benefits or compensation for interests. For example, in the case of the “blockhouse” incident in this chapter, some street personnel tried to calm the incident by bribing residents’ representatives and petitioners’ elites but they were rejected by the other side. In addition, mediation can also be used between people who are close to each other in neighbourhood and family disputes (Xu 2005:124–126). In collective disputes, the infringers are far more than one person, often reaching hundreds or even thousands of people. In the deindividuation environment, the sense of self-awareness and responsibility will also be reduced. It is easy to participate in collective disputes and even make violations of social norms (Zimbardo 1970) but less tolerance to give up the pursuit of personal interests in order to safeguard personal interests and rights. Thirdly, problem-solving, that is, to form consensus through dialogue and consultation among the parties to the conflict while meeting the interests and needs of all parties. It is a widely pursued but difficult way to achieve in reality because the interests and backgrounds involved in conflicts, especially collective conflicts, are complex. Even if the studio tried its best to mediate in the case of Fumanlou and the residents could get a relatively satisfactory result, on the one hand, although the hotel did harm the public interests, they would never accept the results from heart. This requires supporting legal system, public morality and citizen quality as the basis in order to reduce and avoid such disputes in the community in the future. The results of this book also show that when the interests of vulnerable groups in China are damaged and their demands are difficult to satisfy, they will adopt more radical ways: first, to seek coordination and adjudication from the grassroots government or relevant government departments to solve the problem through the administrative path; second, to submit to the legal department and try to resolve the disputes through judicial path. If these two paths cannot work, they will try to make complaints

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and seek help from higher government departments or even the central government. If even petitions cannot solve the problem, the vulnerable people will take direct resistance in the case of helplessness and intolerance. The usual way is to sit and demonstrate in groups to show the protest, and usually directly impact the location of the complaint object, such as the door of the government or enterprise. Sometimes the conflicts between employees and enterprises because enterprises refuse to solve the contradiction positively while ignoring employees’ demands and protests, they will go to the government to petition, sit-in and demonstrate. The target of resistance has thus shifted from the original target of business operators and bosses to the government. It is expected that the government will exert pressure on the enterprises to achieve the purpose of solving the problem. More radical people will even directly destroy the social order (such as blocking roads, disturbing, etc.), selfmutilation (suicide, self-immolation, self-mutilation and other extreme ways), as a means of coercing the government, forcing the government to come forward to solve the problem. By studying the status quo of social collective disputes in China and the way to deal with them, we can find that the root of the problem is the influence of power relations among different groups. Hofstede (1980:81) confirmed that power distance was an important factor affecting the way conflict was handled when he studied the conflicts between organizations. He believed that the extent of power gap depended on the degree of centralization and leadership dictatorship within the organization. The lower levels of organizations with large power gap had strong submissiveness and dared not challenge the upper levels. In his later research, he further found that in organizations with large power gap, the disadvantaged groups depended heavily on the strong groups while in organizations with small power gap, the superiors and subordinates were almost equal (Hofstede 1991:81). On this basis, Ting-Toomey (1988) found that members of organizations with large power gap lack trust, and subordinates dare not oppose their superiors, so when confronted with conflicts, they either avoid or compromise, and have a more submissive attitude. The superiors also tend to use coercive means to deal with conflicts and less direct communication with subordinates. The state is also a huge organization and the equality of its internal power relations will largely affect the nature of social conflicts and the way to deal with them. Under China’s realistic political system, the conflicts between the rich and the poor, labor and the boss, urban and rural areas and between regions have become the concrete manifestations of the main conflicts in contemporary Chinese society. In the first 20 years of China’s reform and opening up, various social conflicts were relatively scattered. In terms of handling methods, some leading cadres have a deeply-rooted idea of “power is authority” and the way of handling conflicts has not changed fundamentally, with supporting measures (laws, strict regulations, citizen supervision and other mechanisms) lacking. They often rely too much on the organizational channels of formal power, especially the channels of state power. Through top-down mandatory implementation, it has resulted in the single-means of conflict resolution and the disengagement from the masses, which objectively blocked the normal interest expression mechanism and easily triggered various social conflicts.

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The deep-seated reason is that the Chinese government has not fully adapted to the requirements of the development of a harmonious society in terms of effectively handling social disputes and resolve them satisfactorily: on the one hand, the channels of interest expression are not smooth and efficient and the interests and requirements of different strata are difficult to be effectively expressed and maintained; on the other hand, there is a lack of government-citizen interaction in the process of government administration. Some local governments neglect the right of citizens’ participation, expression, discussion and information for their own convenience. Only by facing these problems squarely can we find a fundamental solution to social conflicts and make the realization of a harmonious society really possible. Therefore, in a society dominated by the state, local governments with the primary objective of social stability and economic development, facing a large number of complex social conflicts, will suppress destructively in order to achieve social stability and calm down turbulence. For those who can make compromise through preaching and consultation, they will combine smoothing and pressure to defuse the conflict. Citizens would also not blindly avoid and compromise. They usually play a direct game with the authorities to safeguard their own interests or even take more radical and destructive collective action.

5 Summary In this chapter, three specific cases are used to illustrate the situation of collective interest conflict in Shanghai community, the causes, process, internal interlaced complex relations and different ways of dealing with and resolving results of collective resistance. At the same time, through the process of Lin Yue Studio mediating and settling the “blockhouse” protest and the “Fumanlou” dispute, it shows that the pluralistic social organizations, which are besides the government and the law, use their unique conflict handling methods to solve the long-standing and complex conflicts through people’s mediation. “Lin Yue People’s Mediation Studio” is a typical case of community dispute resolution. It reflects the pluralistic development of society under the guidance of the state and the cooperation between the government and society. It is worth our attention and in-depth exploration of the institutional basis of its existence, the orientation of social organizations, and the judicial and institutional constraints faced in dealing with disputes.

References Bond, M., Wan, K., Leung, K., & Giacalone, R. (1985). How are responses to verbal insults related to cultural collectivism and power distance? Journal of Cross-Cultural Psychology, 16, 111–127. Chen, G.-M., & Ma, R (Eds.). (2002). Chinese Conflict Management and Resolution. Westport: Ablex Publishing.

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Clarke, D. C. (1997). Dispute resolution in China. In T. V. Lee (Ed.), Contract, guanxi and dispute resolution in China. New York: McGraw-Hill. Coser, L. A. (1956). The functions of social conflict. New York: Free Press. Hu, J. (2011). Weiquan zhengti xia de chongtu jiejue: Shanghai shequ quntixing chongtu de jingyan yanjiu (Conflict resolution under authoritarian regime: An empirical study of collective conflicts in Shanghai communities). Zhongguo Xingzheng Pinglun (China Administrative Review), 18(2), 113–144. Hofstede, G. (1980). Culture’s consequences. Berverly Hills: CA, Sage. Hofstede, G. (1991). Cultures and organizations: Software of the mind. London Norfolk: McGrawHill Book Company UK Limited. Jia, W. (2002). Chinese mediation and its cultural foundation. In G.-M. Chen & R. Ma (Eds.), Chinese conflict management and resolution. Westport: Ablex Publishing. Liu, W. (2005). Nongmin jiti shangfang zhong de ‘xuanzexing jili’ (Selective incentive in farmers’ collective appeal), Shiji Zhongguo (Century China) 4. Millgate, I. H., Olson, R., Schmidt, W. H., & Thomas, K. W. (1974). Management of conflict training program. New York: Xicom Inc. Olsen, M. (1995). Logic of collective action. Shanghai: Shanghai Sanlian Bookstore, Shanghai People’s Publishing House. O’Brien, K. J. (1996). Rightful resistance. World Politics, 49(1), 31–55. Qu, T. (1981). Zhongguo Falv yu Zhongguo Shehui (Chinese Law and Society). China Book Company. Rahim, M. A. (1997) Styles of managing organizational conflict: A critical review and synthesis of theory and research. In Current topics in management, (Vol. 2, pp. 61–77). Greenwich, CT: JAI. Scott, J. C. (1985). Weapons of the weak: Everyday forms of peasant resistance. Yale University Press. Shi, F. (2003). Networking, struggling with law and contemporary urban collective action in China. In Presented at an Academic Conference Sponsored by the Asian Institute of National University of Singapore (ARI, NUS). Takashio, S. (2004). Jiufen de Jiejue yu Shenpan Zhidu (Dispute Settlement and Trial System) (Wang, Y., Trans.). Beijing: China University of Political Science and Law Press. Ting-Toomey, S. (1988). Intercultural conflict styles: A face negotiation theory. In Y. Y. Kim & W. B. Gudykunst (Eds.), Interethnic communication: Current research (pp. 75–88). Beverly Hills, CA: Sage. Ting-Toomey, S., Gao, G., Trubisky, P., Yang, Z., Kim, H. S., Lin, S. L., et al. (1991). Culture, face maintenance, and conflict styles of handling interpersonal conflict: A study in five cultures. International Journal of Conflict Management, 2(4), 275–296. Tse, K. D., Francis, J., & Walls, J. (1994). Cultural differences in conducting intra- and intercultural negotiations: A Sino-Canadian comparison. Journal of International Business Studies, 25, 537–555. Van De Vliert, E., Nauta, A., Giebels, E., & Hanssen, O. (1999). Constructive conflict at work. Journal of Organizational Behavior, 20(4), 475–491. Wall, J. A. (1990). Mediation in the People’s Republic of China. In Rahim, M. A. (Ed.), Theory and research in conflict management (pp. 109–119). New York: Praeger. Xu, X. (2005) Lun Sili Jiuji (On Private Relief). Beijing: China University of Political Science and Law Press. Yu, X. (1997). The Chinese ‘negative’ perspective of Mao-Dun (conflict) and Mao-Dun resolution strategies: A qualitative investigation. Intercultural Communication Studies VII, 1, 63–82. Ying, X. (2001) Dahe Yimin Shangfang de Gushi: Cong “Taoge Shuofa” dao “Baiping Lishun” (The Story of the Appeal of the Migrants in the Great River-From “Asking for a Reason” to “Settling and Resolving it”. Beijing: Sanlian Bookstore.

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Yu, J. (2006). “Jiti xingdong de yuandongli yanjiu: Jiyu H xian nongmin weiquan kangzheng de kaocha” (Research on the motivation mechanism of collective action - Based on the investigation of farmers’ rights defense in H County). Xuehai (Academia Bimestrie), 2, 26–32. Zimbardo, P. (1970). The human choice: Individuation, reason, and order versus deindividuation, impulse and chaos. In Arnold, W. J. & Levine, D. (Eds.), Nebraska symposium on motivation (Vol. 17). University of Nebraska Press.

Chapter 6

State-Society Cooperation in Dispute Resolution of Urban Community

The last chapter analyses the specific cases of collective conflicts in Shanghai community and how they are handled and solved. This chapter will return to the core issue of this book—social conflicts and how they affect the relationship between the state and social organizations. This part focuses on the institutional basis, mechanism and characteristics of dealing with social conflicts, as well as the state-society relations and existing problems reflected by the operation mode of Lin Yue People’s Mediation Studio, a pluralistic social organization. It also puts forward a theoretical framework of “state-led social pluralism” to explain the interaction between the state and social organizations embodied in dispute settlement. Finally, it discusses the strategies and rational choices of all parties in the settlement of social disputes in the struggle for and balance of interests and puts forward some thoughts on the dilemma and institutional constraints faced by the diversified development of urban social organizations in China in order to explore ways and means to achieve the goal of harmonious community.

1 Operational Logic and Institutional Basis of People’s Mediation Studio Lin Yue People’s Mediation Studio is a civil non-enterprise organization operated in the form of government purchasing service. Its handling of collective disputes shows that the studio has certain independence in dealing with disputes, but at the same time it keeps close contact with the higher authorities and relies on financial funds and power. There is still a strong dependence on the street government in terms of financial funds and power. When dealing with complex and difficult conflicts, the emergence and authority of the official is more conducive to the resolution of disputes. From the standpoint of the government, the director of the Street Justice Office also indicated that the purpose of setting up the studio was to lighten the heavy burden of letters and visits from the government, to open up a more effective way to © Shanghai People’s Publishing House 2020 J. Hu, Disputes Resolution in Urban Communities in Contemporary China, https://doi.org/10.1007/978-981-15-8644-6_6

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solve the complex and frequent group disputes in the current social transformation period, and to provide free and legally effective people’s mediation services for community residents. Accordingly, a GONGO was established with the support of the civil affairs department. In fact, the studio also represents the government to a certain extent in the agency of conflict resolution. Lin Yue also shows the attitude of “government should be in charge” when dealing with disputes, which reflects the state embedded in society of Joel Migdal. But in Chinese society, the state is still in the leading position and the studio also undertakes to complete a specified number of conflict resolution tasks every year. Therefore, it can be said that the socialized operation of community mediation organizations is the mode of operation that the state gives the social organizations space for development but regulates them under its own control. Through the case of community collective disputes in this book, we can see that NIMBY protests in Chinese cities. Residents’ radical protests are also aimed at protecting their homeland from infringement. It is a collective action or collective behavior to appeal for common interests and goals in the form of groups.1 This is in the period of social transformation in China, with the deepening of reform and opening up and the adjustment of interest pattern, the social conflicts caused by the replacement of the unit system by the community system have intensified. However, ordinary citizens are in a vulnerable situation with poor network and powerless. Faced with authoritarian countries and imperfect legal system, many people resort to mass petitions, repeated petitions, overstepping petitions and collective petitions, which is becoming increasingly frequent and serious. As a legal system with Chinese characteristics, people’s mediation is the first line of defense to maintain social stability and community harmony, which is an effective means of resolving disputes outside litigation procedures. This is also the difference between China and the West (the United States, Europe) in dealing with social conflicts. It is caused by the differences in social situation and political system. More conflict resolution mechanisms are needed to deal with disputes beyond the law. The studio’s handling of specific cases shows that in Shanghai community, people’s mediation and administrative control are combined to solve mass petitions and collective disputes (see Fig. 1).2 When conflicts arise, RCs and the mediation studios will cooperate to intervene and try their best to resolve conflicts in the community through civil coordination in order to prevent the emergence of collective activisms. When the conflict escalates or the severity rises, it will cause the SO to intervene or participate in the settlement and provide administrative support to solve the problem focusing on both sides of 1 There

are differences between collective behavior and collective action. The former refers to the spontaneous, unsupervised, non-definite purpose and short-term fanatical behavior that occurs when people are in a situation of unclear, inadequate and conflicting cultural norms. It is also called mass behavior (Marx and McAdam 1994); while the latter refers to organized and sustained action (such as social movements). 2 This is not only confined to the B RC of J Street but also has similar people’s mediation studios in other streets of N District. At the same time, other districts in Shanghai, such as Y District, have set up dispute mediation studios named after individuals after the establishment of Lin Yue People’s mediation studio (Xiong 2006).

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The judicial regulation (N district courts)

Administrative control (sub-district offices)

Civil coordination (neighborhood committee and people's mediation studio)

Complaint reporting

Conflict of interest and expression of interest

Fig. 1 Community resident interest expressing agency—letters and visits with administrative mediation and people’s mediation

the conflict through administrative means. If mediation is difficult to meet the needs of the parties, or the situation is very serious or has a great social impact, it will be compulsory through legal means to stop enforcement to resolve conflicts, but this is often the choice of community residents. Another way is through petition, i.e. letters and visits, which is a system of political participation and rights relief with Chinese characteristics (Yu 2005). It plays a role of rights relief in listening to the voices of vulnerable groups in society and realizing socialism in a certain period and to a certain extent. Nowadays, whether in rural or urban areas, the settlement of collective disputes is characterized by residents’ special dependence on letters and visits. In fact, letters and visits are not only a way out of the system but also a way for the government to make the people reflect their opinions and problems to the government, aiming at the defects or failures of the existing system and the defects and barriers of the relevant information (Chen 2016). They are also a supplementary form to the imperfect legal system.3 Moreover, letters 3 Letters and visits refer to activities in which citizens, legal persons or other organizations by means

of letters, e-mails, faxes, telephone calls and visits, report to the people’s governments at or above the county level, make suggestions, opinions or requests for complaints, and are dealt with by the relevant administrative organs according to law. Letters and visits convey people’s livelihood demands, and governments at all levels have always attached great importance to them. People will face various encounters and situations in life and work. When they feel dissatisfied or unfair, letters and visits become a way for many people to seek solutions.

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and visits have a certain ultimate nature that is superior to the existing administrative system. The petition departments at all levels have the power to inspect and supervise the work of the lower administrative departments and the mediation schemes for the conflicts in the communities concerned. This power endows it the status of final adjudicator of community conflicts in the actual operation and in the minds of the parties involved in the dispute.4 To be dissatisfied with the result of mediation, regardless of the specific form of the decision, the parties can appeal indefinitely to the higher authorities to intervene in the result of the decision of the lower departments in order to change the mediation opinions including court decisions (Gu et al. 2000). However, excessive reliance on petition will lead to a serious burden on the government’s petition department. Once it is difficult to solve conflicts in time, it will further intensify public sentiment and cause excessive behavior. Lin Yue People’s Mediation Studio not only undertakes the mediation of various kinds of disputes in the streets every year but also has a special mechanism for solving collective disputes, i.e. the agent of petition (xinfang daili). The purpose is to resolve many social conflicts at the level of people’s mediation. Since collective actions will have a great impact on the image of the government and social stability, the government also attaches great importance to the handling of mass petitions and gives strong support in policy and resources. Take the “blockhouse” incident in this book as an example, according to Article 75 of the General Principles of Civil Law: “Citizens’ personal property, including citizens’ legitimate income, housing, savings, household goods, cultural relics, book data, forest, livestock and other legitimate property permitted by law, citizens’ legal property is legitimate. Legal protection prohibits any organization or individual from embezzling, looting, destroying or illegally sealing up, seizing, freezing and confiscating.” As for the building of No. 28 Lane 499, J Road, which was the “blockhouse” claimed by the residents, the owner F had the property right of the house now. Therefore, he had the right to own and use his own property according to law and had the right to choose the mode or the operation of his own house. He also had the right to supervise anything related with the house. Therefore, legally speaking, he could use law to safeguard his rights and did not need to make any compensation to the residents. Yet, in the Chinese culture, this kind of conflict is not only related with law and cannot only be settled by law. Through people’s mediation, the studio integrated compromise, comfort, coercion and other means into human feelings and understanding so that the current boss finally agreed make appropriate subsidies for the affected residents and the two sides could basically compromise and reach consensus. Therefore, in China’s actual national conditions, it can be clearly seen that residents ultimately rely on the government, judicial channels are difficult to solve some complex and special disputes. In practice, the members of the studio are not only people’s mediators but also petition agents. Mediators are involved in the mediation of civil disputes and petition agents are in contact with relevant departments to deal with petition matters. On 4 Placing

letters and visits above court arbitration is a realistic impression drawn from the actual operation mode of this work system (Gu et al. 2000).

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the one hand, the studio reflects the problems on behalf of the people to the higher authorities as a communication medium and bridge between the government and the people; on the other hand, it cooperates with the government departments to solve the conflicts between the officials and the people and plays a role of linking up and dispatching, which also reflects the characteristics of the “third party” of the studio (see Fig. 2). As a result, the communication network between the masses and the government established in the community has become a buffer mechanism for social conflicts, playing the role of a safety valve. In the process of people’s mediation and petition agency for community collective disputes, the studio shows that it relies on political resources, legal resources and social resources, integrates state power, formal system and informal system, and pays attention to traditional Chinese cultural traditions. Only by doing so can the “blockhouse” incident lasting 14 years be made possible. The Fumanlou Hotel back door incident, which had been in dispute for many years, was basically resolved. Reception & registration

If it has been settled or should be settled through lawsuit arbitration or administrative reconsideration according to law, the party concerned shall be informed to submit it it to the relevant organs in accordance with the procedures prescribed by relevant laws and administrative regulations.

Verify through investigation

People’s mediation: 1. Direct mediation; 2. Participation in mediation; 3. Transfer to a competent mediation committee

If mediation succeeds, then make people’s mediation agreement and supervising its implementation

If mediation fails, then provide counseling and lead to litigation

Revisit after the mediation edns within one week

Letter and Call Agent: Agents act on behalf of the parties to contact the authorities that have the power to deal with, and the processing departments will conclude within 60 days, with a complex extension of no more than 30 days. If a party refuses to accept the result of the settlement and submits a request for reexamination within 30 days, the agent accepts the entrusted party’s request for reexamination opinions from the higher authorities. If a party refuses to submit a request for review within 30 days, it shall submit the request on behalf of the party to the higher organ of the review organ. The review organ shall inform the review opinions within 30 days

Make a file of mediation case and a letter-visiting agent’s closing document

Document filing

Fig. 2 Flow chart of community people’s mediation petition agent studio

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At the same time, some potential informal rules, such as morality, public opinion, acquaintance network, which are used by the studio in mediation. It play a role that the formal law (national law) cannot achieve in solving disputes in actual mediation. The community people’s mediation system combines the informal latent rules, the flexibility of social norms and the rigidity of the state’s formal law, which makes the state’s formal authority and grassroots society interact in a complex way. The authority of community people’s mediation mainly comes from the authority of the government, the support of national law (jurisprudence authority), civil customs, morality (traditional authority) and social relations network, etc. It can be said that it is the third area where a complex country and society intersect. After the combination of people’s mediation and petition agency in the studio, the studio interacts with the government departments on behalf of the people. The purpose is to help the SO and local governments to settle the conflicts in the community. In fact, to some extent, it is performing some functions of the state. But at the same time, in order to expand its influence in the community and its ability to solve disputes independently, the studio also tries to enhance self-governance and independence by other means, such as private donations, corporate sponsorship, and so on, and reduce its dependence on the government. Therefore, the operation of Lin Yue People’s Mediation Studio is a concrete manifestation of “cooperation between the state and society”. People’s mediation belongs to a grassroots dispute settlement mechanism established in grassroots social organizations, which not only has the lowest degree of institutionalization and standardization, but also has the characteristics of civility, grassroots and locality. The operation of this kind of grassroots people’s mediation organization of civil non-enterprise embodies the diversified dispute settlement mode in Shanghai community in the interaction of state law and civil society norms and to a certain extent reflects the development of social autonomy. The people’s mediation studio promoted by the government is the embodiment of the state’s support for the socialization of people’s mediation organizations. Yet it is named after Lin Yue, which shows that the state intends to cultivate community elite to strengthen the effective governance of society. It also reflects the working concept and strategy of the CCP “from the masses to the masses” (cong qunzhong zhong lai, dao qunzhong zhong qu).5 Lin Yue is the representative of the community elite, many similar social elites need to have a broad social foundation, high prestige and organizational ability in order to get the support of the state. At the same time, the community elite also has a grassroots character. They live in the community and share the same life style and ideology with the residents. They can fully understand and express the demands of the masses and gain the trust of the masses. In China’s urban communities, many community elites were formerly state cadres, who worked in community service after retirement. Therefore, they have accumulated a wide range of social capital and relationship networks dealing with the government before they are granted the status of community cadres by the state. They can control their 5 Pareto, an Italian scholar, defined the elite as a group of people with special abilities and outstanding

abilities in certain aspects or activities (Coser 1977: 396–400).

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behavior according to their special powers. Their former special status facilitates community work after their retirement. But at the same time, because of their close contact with the government and past work experience, they have established a good relationship of mutual trust with government departments, which is conducive to the development of mediation work. Those who exercise leadership, management, coordination, arbitration, integration, organization and other functions in the public sphere of society can be regarded as social elite. Informal influence, such as wealth, prestige, ability and knowledge, is the main influence of the social elite. Taking Lin Yue as an example, as a community elite and chief people mediator, she has a high prestige in the community. With her high interpersonal skills, mediation experience, skills and a wide range of social networks, especially close cooperation with government departments, she has successfully solved many complex disputes outside the streets and jurisdictions. At the same time, in the 19-year-old community dispute settlement work in J Street, she has established a high reputation and is trusted and loved by the residents. Her special work experience, excellent mediation performance and social prestige make her have strong personal charm, which can be transformed into organizational resources and power resources to facilitate the work. In addition, the media’s vigorous propaganda of the “peace hero”, the praise and affirmation of the leadership and the public’s good reputation also play a positive role in the successful settlement of mediation disputes. Lin Yue’s combination of charismatic authority and legal authority has established her multiple authority in the community, which is conducive to the development and self-development of the studio mediation work as well as the integration of resources.6 With prestige, ability and experience, Lin Yue has become an elite figure in the mediation field, making the studio an independent social organization from the initial judicial window, signing a purchase service agreement with the government. Lin Yue is the agent of the state, which executes and interprets national policies on behalf of the state. At the same time, through mediating disputes among the people, she has become the spokesperson for the people to express their interests to the government. Just as Liang (1996) believed in the study of customary law in Qing Dynasty that the intermediary between customary law and national law—local officials and intellectual elites also played the role of linking up, Lin Yue acted as a bridge between the government and the people in the mediation of disputes. If we look at Lin Yue in the context of China’s reform and opening up, it reflects China’s 6 Weber

defines authority in three ways: traditional authority, jurisprudence authority and charismatic leadership authority. Traditional authority is characterized by observing sacred traditions (habits) and personal arbitrariness; the rule of jurisprudence is characterized by the appointment or selection of the authority through legitimate procedures, and the compliance of the people with non-individualized written norms and laws; and the charismatic authority with extraordinary talent is mostly the product of crisis and fanaticism. Material has the characteristics of emergency meeting the needs of supernormal principles. Among them, the traditional authority and legal authority are regarded by Weber as a lasting authority structure, which meets the daily needs of the community; the charismatic authority of leaders is extremely unstable because of its difficult succession and emergency characteristics.

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top-down reform by absorbing civil elites in the process of democratic development. “The state, the elite ruling by the people and the people are the three basic structural factors in the social structure. The relatively stable interactive relationship formed by these three factors is one of the basic frameworks of social structure” (Sun 1994). Sun (1993) summarized the relationship between the state and society in China since 1978 with the model of “State—Civilian ruling elite—People”. He believed that the emergence of the diminishing civil elites after the reform in the 1950s and 1970s was the inevitable result of the state’s retrenchment of social control. In the study of this book, the state is also looking for suitable agents in order to increase its ability, which requires a large number of trusted community elites to serve it. The state provides the public identity of community elites, such as supporting the establishment of studios named after them, supporting them to manage and act as chairmen of geriatric associations, and so on, and stabilizing their public power and responsibility in the community by granting them public identity. These community elites themselves have high prestige in the local area. Their actions can influence and drive a large number of people. They belong to the “capable people” of the community. Therefore, the government employs many community elites in the grassroots governance to consolidate its governance foundation. The survey found that there are also many voluntary organizations and social organizations such as geriatric associations, no matter where Lin Yue studio is located or in other areas of Shanghai. The motivation for the establishment of these organizations is that the SO and government departments, through conscious guidance, promote the emergence and development of NGO, that is, the mode of organizational mobilization. It is obvious that China’s current social organizations are in a state-led diversified development. Their establishment and promotion are also the result of “cooperation” between the government and community elites. The Party-state has endowed these organizations with legitimate resources for their existence and operation. In his study of Hong Kong’s political model, Kim Yao-kee proposed that “administrative absorption politics” (xingzheng xina zhengzhi) refers to a process in which the government assimilates the political power represented by social elites or elite groups into the structure of political decision-making, thus achieving a certain level of elite integration. This process gave legitimacy to the ruling power, thus enabling a relaxed but integrated society to be established (Kim 1997: 27). The case study in this book also reflects that the Chinese government absorbs community elites, reflects the concept of government serving the community at the grassroots level, and makes these community elites serve as a bridge between the government and society and increases the governance efficiency of the government. On the other hand, the government’s absorption of Community elites is also reflected in the process of the government’s transformation from a “pressureoriented system” to a “cooperative system”. In the past, China’s grassroots political system was a typical “pressure-oriented system”, which is also called “political contracting system” (zhengzhi chengbaozhi) (Rong 1998). In the pressure-oriented system, the higher government organs formulate various economic development goals, concretely and digitally, and then distribute them to the lower units in the form

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of pointers and tasks and take the completion of these pointers and tasks as the main basis for evaluation and assessment. The lower level is under great pressure from the higher level. Moreover, the pressure is coded from the top to the bottom, and the higher the pressure is from the bottom. But it cannot be ignored that there is still a “decompression mechanism” in the operation of this pressure system. This mechanism is actually an informal system, including interpersonal relationships, statistical methods and means. By using these two means of decompression, subordinates can bargain with their superiors when signing the target liability statement or make false statements and exaggerations by means of false statistics. The existence of this decompression mechanism provides a reasonable way for organizations and individuals under the pressure system to evade their responsibilities. Similar to the management organizations in urban grassroots communities, the SO and government departments are under constant pressure of fulfilling various political tasks. In order to release this pressure, the Party and government departments in the streets should not only complete the tasks assigned by the higher departments but also strive to innovate in order to achieve better performance in their daily work. To develop community NGOs and innovate social governance is one of them. Therefore, the SO and government departments should not only mobilize residents to promote community participation but also absorb community elites to ensure the sustainability of such community participation. Moreover, under the leadership of the CCP, these organizations have ensured correct political direction and get political trust from the streets. For example, the legal representative of J Street Association for the Aged People is not the president of this association but a cadre of the Street Committee for the Aged. This is the distrust of the non-institutional elites who may political risk for the local government. Only when the elites of these organizations have been transformed into the elites within the system can they basically let themselves act as the judicial persons. However, China is transforming from a “pressure-oriented system” to a democratic “cooperative system” so it is reasonable to promote the diversified development of social organizations. First of all, the government should let social organizations have a certain degree of independent operation space. In fact, it is a system that local governments are responsible for both of the top and the bottom. It is conducive to reducing corruption because the leaders of social organizations not only need the favorite objects of the government but also have a certain public reputation. Secondly, we can reasonably divide the financial and administrative powers between the government and social organizations, clarify the rights and obligations of social organizations, so as to mobilize the enthusiasm of the government and social organizations in all aspects. Thirdly, the cooperation between the state and social organizations is also a win-win system of non-zero-sum game. By purchasing services, the government alleviates its huge and complicated social burden and social organizations are also seeking support and resources from the government. Only by completing their own task guidelines can they obtain corresponding benefits and create opportunities for the development of their own independent space in the interaction with the government.

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The studio can issue people’s mediation agreement with legal effect for the parties to the conflict. The legality of this agreement is embodied in three aspects: First, as a legal people’s mediation organization, an agreement reached under the auspices of the people’s mediation organization shall be binding on the parties concerned and the parties concerned shall perform it; second, the agreement is reached in accordance with the law and binding on the parties who are at fault to perform their obligations prescribed by law; third, if the obligated party neither fulfills the obligations stipulated in the agreement nor applies to other state organs for settlement, then the party shall bear all the legal consequences arising from it. Yet, diversified dispute resolution mechanisms also have the mission of communicating national laws with civil society norms, such as local customs. The nature and effectiveness of people’s mediation agreements have not been clearly defined by law for a long time, lacking binding force and enforcement force. The people’s mediation system has long lacked the authority to solve disputes thoroughly, which leads to the weak effectiveness of people’s mediation. The lack of effective protection of the legitimate rights and interests of the parties resulted in the intractable situation that although many disputes that have reached mediation agreements finally, it still needs to be settled through litigation. This actually and unavoidably leads to an increase in the cost of dispute resolution, the reluctance of residents to choose people’s mediation and also seriously inhibits the enthusiasm of people’s mediators (Xu 2008). Meanwhile, the Provisions of the Supreme People’s Court on Trial of Civil Cases Involving People’s Mediation Agreements promulgated on 16 September 2008, has the content of civil rights and obligations reached through the mediation of the People’s Mediation Committee and the mediation agreement signed or sealed by both parties, which has the nature of a civil contract. The parties shall perform their obligations in accordance with the agreement and shall not alter or terminate the mediation agreement without authorization. This is the first time in China that people’s mediation agreement has been defined as a civil contract in the form of judicial interpretation.7 This diversified dispute resolution institution, its extensive community network relationship and flexible dispute resolution strategy with legal effect can more effectively and timely cope with various conflicts frequently occurring in the current transitional society and make up for the shortcomings of traditional dispute resolution methods.8 In a word, community people’s mediation organizations, under the leadership of the state, participate in the stabilization of community as intermediaries connecting the government and society and form a cooperative mechanism with various institutions. On the one hand, public services should be jointly carried out with the government to form an organic unity model. On the other hand, as a community 7 “Renmin

tiaojie xieyishu jiang jubei falv xiaoli” (The People’s Mediation Agreement will have legal effect if confirmed by the court), 23 June 2010, https://www.chinacourt.org/article/detail/2010/ 06/id/414831.shtml, accessed 9 August 2019. 8 “Renmin tiaojie xieyi jiang ju falv xiaoli, youguan sifa jieshi jiang zhixing” (The People’s Mediation Agreement will have legal effect and relevant judicial interpretations will be implemented), 28 September 2002, http://www.chinanews.com/2002-09-28/26/227550.html, accessed 6 August 2019.

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dispute mediation agency, the studio is a third-party, expressing the interests of the people, and interdependent with the people and other community NGOs to form a community cooperative partnership.

2 State-Led Social Pluralism and Its Institutional Foundation As for the theoretical explanation of the relationship between state and society, the existing views mainly include the following five theoretical schools. Firstly, state-centered totalitarian theory (Weber 1997; Reuschemeyer and Evans 1985; Mann 1986; Hall and Ikenberry 1989; King 1986) mainly emphasizes the omnipresent ability of the state. It holds that society and individuals are almost powerless in front of the state and that the whole society and other groups are dependencies of the state. A vassal of the family. In fact, although there is not much political space for each group under national governance, each group has its own interests and different interests also affect the implementation of national policies. The totalitarian theory seriously neglects the influence of social individuals and different organizations on the state and fundamentally ignores the pursuit of their own interests by different interest groups. Secondly, the theory of social-centered pluralism (Dahl 1961; Migdal 1988; Shils 1982, 1991; Diamond 1994, 2008). It emphasizes that the state is the arena where different groups compete and influence the implementation of national policies according to their own interests. The theory of pluralism emphasizes the mutual penetration of the state and society and the use of opportunities by social organizations to seek their own interests. This idea is inspired by the theory of civil society. Its advantage is to see the emergence of different forces in society, which may herald the birth of a civil society. The shortcomings are that: (1) although groups can pursue their own interests, they must be within the framework of the existing system and within the permissible scope of government policies; (2) the emergence of NGOs and GONGOs may not necessarily lead to the formation of a “civil society”. The emergence of various types of organizations and groups implies that the diversity of social life but the future of this diversity is not yet clear. Both theories follow the idea of “state-society” dichotomy. Under the guidance of this idea, the study of the relationship between the state and society in China has roughly gone through a process of “State repression—Compromise between the state and society—Mutual penetration between the state and society”. But there are the following problems in this way of thinking: (1) Overemphasizing the relative power of the state or one of the societies means that the state and society are antagonistic; (2) According to this model of understanding the relationship between the state and society in China, a general conclusion is that the image of “strong state

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and weak society” is caused by the ubiquitous oppression and infiltration of the state. Social organizations under the rule of the state do not have much room for free development; (3) There is not a balanced interaction between the state and society but an attempt by one side to completely control the other. The result of understanding China’s state and social relations in this way is that no social organization or interest group has any possibility of grasping the right to speak. Thirdly, the view that the state is embedded in society (Migdal 1988, 2001; Migdal et al. 1994). Migdal believes that the state and society are not completely separated and it is likely that there will be unusually complex situations. Perhaps there is a great division between the internal composition of the state and the internal structure of the society. These elements of division form a combination of different powers according to the specific situation, if used in this case. The dichotomy of “state-society” is rather weak in distinguishing the relationship between them. Fourthly, corporatist scholars attempt to recognize the penetration of state power while emphasizing the enhancement of bargaining power between societies and the state (Schmitter 1974; Unger and Chan 1995, 1996). However, although the perspective of corporatism can well depict the characteristics of top-down control and show the process of citizens being integrated into the vertical structure, it is easy to risk ignoring the important elements of the change of state-social relations and simplifying the dynamic process. Fifthly, the concept of “state-led civil society” (Frolic 1997). According to Frolic, in Chinese or Asian societies, unlike civil society development in Eastern Europe, social organizations exist in the form of state-owned enterprises or non-Western public ownership organizations, and their actions are managed and controlled by the state (Unger and Chan 1995: 29–54). Yet due to the needs of the Party and the government, many Asian countries have also restricted state power within an appropriate range, slowly allowing some independent groups and individuals to form organizations but still under the premise of state-led, thus forming a state-led civil society. These organizations, in fact, still support their rule as a national governance machine and are an alliance between the state and society.9 However, as social organizations, they can play a key role in communicating between the state and society, helping the state to spread ideology and policy (White 1993: 79). At the same time, they can mobilize social organizations to participate in public affairs and thus can be said as the embryonic form of “civil society” in the western sense. Because they only assist the state in controlling the society without becoming the center of citizens’ opposition to powerful government (Frolic 1997: 57).

9 The

development of China’s modern civil society can be said to be germinating and developing at most. However, due to the difference between social system and cultural tradition, it is impossible for China’s civil society to behave in the same way as the West’s, whether now or in the future, see “Gongmin shehui, hexie shehui he dangde zhizheng jichu” (Civil Society, harmonious society and the ruling foundation of the Party), http://news.cntv.cn/special/tanzi/20110124/104115_1.shtml, accessed 9 August 2019.

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Nowadays, the world is becoming more diversified in politics, economy and culture. For China, with the reform and opening up and the economic development, the original simple state-owned and collective ownership has evolved into the coexistence of state-owned, private, foreign capital and joint-stock economic components. The change of economic composition has directly led to the differentiation of social status and strata. And each stratum has its own relatively independent interest demands and tries to maximize the interests of its own strata. Thus, the struggle for scarce resources among different strata, including political power, economic resources and ideology, becomes an eternal social phenomenon. Part of the current state social relations in China can be explained by Migdal’s theory of “social embeddedness and interaction of the state” because since the reform and opening up, the state has actively promoted the development of diversified social organizations while controlling the society. And social organizations are also seeking their own independent development space in the interaction with the state. However, the process of the evolution of China’s state-society relationship has its own particularity, which is the process of the state re-shaping its social control system. The independent space given by the state to society is conditional. Organizations that can be set up are those that can meet the needs of the government or local society promoted by the state. Therefore, some civil non-enterprise social organizations with independent legal personality, which are purchased by the government, are also starting from the government’s standpoint in order to undertake the heavy task of dispute settlement by the government. The manifestation of its diversity can also be said to be another way to solve social conflicts established outside the judicial, market and government departments of letters and visits. In this case, the interaction theory of state embedded in society may not be entirely suitable to explain the current state-social relations in China. Firstly, the Chinese government still implements different control strategies for different types of social organizations. For example, some opposition organizations are forbidden resolutely; trade unions and community organizations are directly included in the government series; double management of large NGOs is implemented; grassroots NGOs are excluded from the social legal persons so that they cannot enjoy the corresponding preferential conditions. For informal organizations, they are either left to their own devices or indirectly controlled by their units or communities (He and Guo 2007). Secondly, the intensity of government control over various types of social organizations is different. This depends on the nature of the social organization itself, the source of funds and the main social functions it undertakes (Wu and Chan 2013). Public welfare and charitable social organizations usually reassure the government that its control is only in a routine state. However, if social organizations are involved in sensitive issues such as human rights protection, human rights and labor issues, the government’s control over them will be greatly increased and censorship and supervision will be upgraded. Moreover, if social organizations are purchased by local governments or financed by civil affairs departments, the government’s control over them will be reduced due to the reliability of these organizations. However, if the main operating resources of social organizations are foreign funds, the government will

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greatly increase its control and supervision. The more important the social functions of social organizations are, the more urgent the local governments need this function and the less the government controls it. For example, the social organizations of dispute resolution have established strong contacts and mutual communication and trust with the government because they assist the government to undertake a large number of functions of conflict resolution. The government is more confident that they can participate in social affairs. In addition, the state’s control over society is to safeguard the vested interests of the ruling group. And the most fundamental vested interests of the ruling group is to monopolize political power so the state will choose and implement control strategies according to the potential challenges of social organizations. At the same time, the state also assumes the function of providing public goods and if it fails to perform this function well, the stability of its regime will be seriously threatened. So the state will choose and implement control strategies according to the social functions of social organizations. In this model, the state does not appear to be “rigid”, but rather “very smart”, strict, loose and uncontrollable. In fact, “uncontrolled” is itself a kind of “control mode”.10 Thirdly, social organizations in China are becoming more and more diversified and operate in a more independent form. Especially, the dispute mediation organizations with the characteristics of government purchasing services are vigorously promoted. Their greatest feature is to emphasize the essential distinction between government and social organizations and avoid the confusion between government public functions and social and non-governmental functions (Fan 2004a). These social organizations are not directly presided over, intervened in or invested by the government, but “purchased” their services with the government’s investment, without changing the civil nature and social functions of the people’s mediation. Government’s support to social organizations through purchasing services is different from the investment in judicial resources through financial allocation because it is not to equip the government’s own institutions and functions nor to invest in national judicial resources, but to be supported and encouraged by government funding without changing the nature of people’s mediation. Its positive role and development, so as to provide a convenient and economic way of dispute resolution for the parties, promote the diversification of dispute resolution mechanism. Therefore, the three stages of the evolution of the relationship between the state and society in China are from the first stage, when the state exercises overall control over the society (before 1976) to the second stage, when the state cooperates with the society but the state is in a dominant or dominant position and social organizations play the role of “the second administrative system” (i.e., when the state exercises overall control over the society); and to the third stage, the society gained full autonomy and independence and the third sector developed highly. At the same time, social organizations cooperated actively with the government to establish an effective system of social cooperation (Kang and Han 2005). 10 Kang and Han (2005) proposed that the Chinese state should adopt a “classified control” approach

to social organizations, which is a system in which the state uses the “non-governmental mode” to exercise overall control over society in the new economic environment.

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Therefore, the book proposes that “state-led social pluralism” (guojia zhudao de shehiu duoyuan zhuyi) embeds the relationship between the state and society into the specific social and historical period of “China’s social transition period”, emphasizing the dominant role of the state and the institutional basis behind the diversification of social organizations. It holds that the diversification of social organizations and the development of community autonomy to a certain extent are actually the result of state-led. If we start from the logic of functionalism, the existence and development of social organizations with independent legal personality can be attributed to the fact that they meet the needs of the government or local society. At the same time, nowadays, the use of the Internet to participate in major events and express their own demands is becoming a political lifestyle that more and more Chinese netizens are accustomed to. The impact of the Internet on the external real world is increasing with the expansion of the number of netizens. However, these organizations that organize contacts and exchange ideas on the Internet are now referred to as Chinese-style “NGNO” (“non-governmental” and “non-organization”) by newspapers and online media abroad. Therefore, from the perspective of the capacity of social organizations themselves, it is still largely dominated by the government. State-led social pluralism has three important premises and four theoretical assumptions. The three prerequisites are the dominant position of the state (government), the cooperative relationship between social organizations and the state, and the rational choice and maximization of interests in the respective actions of the state and social organizations. Specifically speaking, first is the pluralistic social organizations promoted by the state support the state, not oppose it, and state-led is the major prerequisite. Second, these organizations serve as intermediaries and bridges between communities, citizens and governments. Third, its diversified forms and the organizational leaders trained by the government embody the cooperation between the state and the society so as to achieve the goal of maintaining social stability and building a harmonious society vigorously advocated nowadays. Fourth, without threatening the authority of the state, both the state and the social organizations are competing and compromising to maximize their own interests. At the same time, there is a trend: the state is gradually weakening and the social organizations are becoming stronger. Four hypotheses are as follows: First, social organizations are under the leadership and supervision of the national government in their establishment and operation, and do not challenge the government’s dominance. Second, social organizations are established and operated in different forms. To a certain extent, their tasks and objectives can make up for the inadequacy of the institutional capacity of government departments and undertake the task of government management of society. Thirdly, social organizations voluntarily communicate with the people and the government, and do not create antagonism between the officials and the people and intensify contradictions between the officials and the people.

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Fourth, the state and social organizations support and depend on each other. Although the state is in a dominant position, social organizations also have a certain space for independent operation and play. For example, the Lin Yue People’s Mediation Studio, a social organization shown in the case of this book, undertakes the mediation of government’s social conflicts and acts as a bridge between the government and the people. Because when there is no normal communication channel between the government and the citizens, the upper and middle classes of the society can seek their own interests or achieve their own goals by establishing relationships with government officials through private networks. But the voice of the interests of the lower and middle class is weak, because they do not have enough money and opportunity to make friends with government officials with decision-making power and resources at the upper level. And their voices are easily drowned out by the voices of the upper and middle class. This makes them in a disadvantaged position in the distribution of social interests, and the infringement of interests is inevitable. When they know that their interests are seriously infringed and that justice cannot be achieved through legal and clear channels, they tend to take extreme measures, or take actions such as violence, demonstrations, petitions, hoping to attract the attention of the upper class; or take self-abuse measures to obtain the sympathy of the limited public for themselves. Another extreme way is to remain silent under repression, but this “calm” image only temporarily hides the crisis, and when appropriate, it will erupt in a more intense form. Generally speaking, in a society without normal channels of expression, these actions will cause social instability and become potential crises. The intermediary organizations can transmit the scattered voices of social members into effective information to the government, resolve the contradictions between the people and the government as soon as possible, and ease the tension. To a certain extent, they can make up for the structural vacancy of communication between the government and the members of society, thus promoting social stability. This is exactly Coser’s point. The theory of “safety valve” embodies in solving social conflicts. This is also the reason why the government attaches great importance to intermediary organizations, vigorously advocates the socialized operation of community people’s mediation organizations, makes them register as an independent legal person and gives certain financial support in order to strengthen the control of social organizations and guarantee stability and harmony through cooperation with social organizations. But in fact, this will make social organizations integrated into the government system, becoming a derivative of the government and affecting its independence. Although this form has greatly improved the function of information integration, it has strengthened the government’s control over social members and enhanced the degree of centralization of government system. Therefore, if communication intermediaries want to truly play their role of decentralization, they must first acquire independence. Otherwise they are only a tool for the government to control society. As for how to promote the practical application of the state-led diversification model of social organizations in urban communities in China, it should mainly focus on two key links, namely, relatively independent countries and a diversified society. In order to realize this model, the state must have appropriate empowerment to the

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society, and the pluralistic social organizations should assume certain responsibilities to the state to realize it; thus forming a cooperative mechanism of two-way communication and mutual assistance between the state and society, which can be divided into two aspects: one is mutual supervision between the state and society; the other is mutual supervision between the state and society. On the other hand, it is the mutual support and promotion of the state and society. Of course, it is obvious that the state still plays a leading role in the legitimacy and scope of action of social organizations but it is no longer complete control and oppression. It is a pluralistic cooperation mechanism between the state and society that gives social organizations some autonomous space to cooperate with them to solve social problems.

3 Action Orientation of State and Social Organizations To explain people’s action meaning from the perspective of sociology is mainly that it contains behavior intention, consciousness and goal. T. Parsons defines action and social action as: we call any person’s attitude or activity action, whether external or internal, failing to take action or passive acquiescence. The actor(s) places a subjective meaning on his attitude or activity. Social action refers to the actions and attitudes of others in terms of their subjective meanings to the actors (people) and the actions oriented by the attitudes and actions of others in the course of action (Parsons 2003: 717). Weber divides the social action orientation into four categories: the first is the action under the purpose rationality, using the most effective conditions or means through accurate calculation in order to achieve the purpose of the achievement that he reasonably strives for and considers. This is a policy of action derived from utilitarianism or instrumentalism. Logic, science and economy are typically manifested in bureaucratic organizations. The second is action under value rationality, that is, pure belief in unconditional intrinsic value through conscious interpretation of a particular behavior - ethical, aesthetic, religious or any other interpretation - is the pursuit of value rather than calculation, regardless of achievement. The third kind of action is emotional action, which is caused by the current emotional or emotional situation. The fourth type is traditional or authoritarian action, which originates from customary practices or actions taken out of respect for authority (Weber 1997: 56). The classification of these four actions is only a tool for sociologists and an ideal type of specific actions defined by Weber. If these explanatory models of social action orientation are applied to the analysis of the handling and resolution of collective conflicts in Shanghai community, we can see that whether as the parties to the conflicts between the opposing parties or as a third party mediator or government agency, they have rational action choices to achieve their own goals. As vulnerable groups and victims of interests, community residents take action by weighing the advantages and disadvantages, combining the “weapons of the weak” and trying various possible ways, in order to make up for their loss of interests, and let the other party who infringes on their interests accept corresponding punishment. But when all

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their efforts fail or even pay more costs, residents tend to become irrational and take emotional action instead. Especially in the case of large numbers of group conflicts, the factors of de-individualization tend to make events full of violence and destroy personal safety and social harmony. As a mediation agency, the people’s mediation studio of Lin Yue should deal with at least two or more parties of people. Its action is a product of mixing rationality of value and rationality of purpose. All the members of the studio are willing to make efforts and efforts to safeguard the peace of one side, especially Lin Yue’s selflessness and dedication to community work, which can also be said to be a combination of their personal feelings and ideals for the community and dispute resolution. And the studio signed a contract with the street, shouldering the task of resolving difficult disputes and daily conflicts in the community and fulfilling the targets stipulated in the contract became its most basic purpose of action. At the same time, the characteristics of civil mediation is not lack of emotions and the orientation of traditional Chinese moral concepts so the social action of the studio includes the four orientations that Weber classified. The government supports the socialized operation of mediation organizations because it fully recognizes that it can act as a buffer between the government and the people and is the “civilian court” (buyi fating) for the bottom people to resolve disputes. The importance of this role in the Chinese community and the concept of finding the government when people in traditional Chinese culture encounter a lot of problems. If there is no studio involved in dispute resolution, the government will inevitably have to face the pressure of dealing with and resolving a large number of disputes concerning the interests of the masses directly. However, if the government does everything in order to achieve social stability, it will inevitably fall into the predicament of being unable to stop, which will lead to the unlimited responsibility of the government and the emergence of governance crisis. In the words of the street government, it will be “all day long in resolving various disputes among the masses and unable to get away from doing other things and undertaking local economic construction”.11 Yet social stability is an important management task of the grassroots government, so the government entrusts thirdparty organizations to resolve conflicts is actually the transfer of the function of maintaining stability. Starting from the real feelings of residents, because the studio has established a cooperative relationship with the government to some extent, they feel that looking for a studio is just looking for the government. And the mediation results can be guaranteed by a legally effective mediation agreement, which greatly improves the confidence and support in the hearts of residents. However, looking back on the background and process of the establishment of Lin Yue People’s Studio, it is a model for Shanghai local government to try to establish diversified social organizations by means of government purchasing services. This is the rational choice made by the state to deal with the social contradictions in the transitional period, in order to solve and reduce various social contradictions (Fan 2004b). According to the official definition of organizational socialization 11 Interview

with Director W of J Street Justice Office, September 2008.

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(zuzhi jigou shehuihua) in Shanghai, it refers to the use of social organizations, social institutions and social forces to resolve disputes. As an administrative department, the government should not be in the first line of mediating contradictions. It should adopt economic and administrative means to actively support and subsidize the socialization of people’s mediation work and form a standardized and orderly social self-discipline mechanism (Miao 2004). In order to promote the diversified and socialized operation of people’s mediation, there are still many difficulties and limitations in the actual operation, especially the problem of funds. Government purchasing people’s mediation is a kind of direct support and support to people’s mediation through the investment of funds under the leadership and support of the government, which is as important as policy support. Therefore, it can be said that the studio is the product of the socialization of the people’s mediation under the leadership of the state. Although it still belongs to the institutional dispute settlement mechanism and is under the leadership or guidance of the government and the people’s court, its nature belongs to the civil mediation. And the greatest feature of government purchasing people’s mediation is that it always emphasizes the essential distinction between government and social organizations, avoiding the confusion between government public functions and social non-governmental functions. It does not directly use the government to preside over, intervene in or invest directly but “buy” through investment, without changing the people’s mediation of their own non-governmental nature and its social function. In the past, all kinds of dispute settlement agencies often fall into survival dilemma due to financial problems, and easily lead to disorderly competition among various institutions. The dilemma faced by various mediation organizations is that it is difficult to ensure normal operation and development without charge and it is difficult for the people to benefit from the charge. If mediation fees are charged, most of the parties prefer to go directly into litigation rather than choose mediation. Therefore, the investment of government funds can not only enable people to get rid of the predicament of their own development and ensure their operation but also enable them to insist on not charging the parties so that the people are more willing to choose this low-cost dispute resolution (Fan 2004b). It means that the registration of studios for the social operation of civil non-enterprises is a need for social development. It also proves that mediation can also be taken by private professional institutions. The registered fund of the studio was 100,000 yuan, which was paid by the street. The main financial source of the studio is the government because the government has purchased the service of the studio and the studio is responsible for the street. Second, it has great reliance on administrative authority and resources. Although the Constitution stipulates that the people’s mediation organizations are self-governing, in the actual operation process, residents come to the studio to mediate disputes because they still think that the studio is an institution established by the government and has the legitimate authorization of the government. Especially when the studio combines the letters and visits agency with the people’s mediation, it adds more administrative color to the studio. In addition, the studio also relies heavily on the legitimacy and authority of the government in resolving disputes because it can provide many conveniences for resolving disputes and help to carry out work.

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In addition, the normal work of the studio needs government support to provide office space, activity funds, human resources and so on. These show that the studio is not totally independent of the state but belongs to the third domain between the state and society, and is an organization with certain autonomous space under the leadership of the state. Its socialized operation mode is actually a quasi (semi) socialized form because the state’s transformation of the people’s mediation organization form has not fully decentralized to the people’s mediation organization for selfdevelopment and self-service but as a variant of non-governmental organizations. Although government purchasing services is the embodiment of the transformation from government’s business functions to management functions, it is only a transfer of functions. The result of this is that the studio in the form of NGOs is actually a variant of the “same quality but different form” of government agencies or NGOs under government administration. Yet although the studio relies on the government in many ways, it also actively exerts the initiative of the organization itself so that the organization can flexibly change and control the environment. For the staff recruitment and internal management of the studio, the streets are entirely responsible for Lin Yue herself. She is also the legal representative of the studio. The studio is also trying to find funds and resources from other places. For example, it has received 2,000 yuan from the chairman of Y Industrial Co., Ltd., a private enterprise, for the successful settlement of disputes, in order to improve office living facilities. The diversified social operation of the studio is also reflected in the fact that its dispute resolution service is geared to the whole society, not only the disputes of the local community but also the consultation problems such as letters and calls from the whole country and the settlement of disputes across regions or even across countries. The studio also tries its best to combine social resources, absorb volunteers, and gather various social forces to solve conflicts and problems. In any case, throughout the history of China’s development, the state has maintained its intervention in public affairs. After the reform and opening up, although the state’s control over society has weakened and cooperation with social organizations has begun to increase, the main premise is that the state is still in the leading position, and social organizations only play the role of the second administrative system. After the 21st century, the reform led by the Chinese government has achieved great results. The government has become an efficient form of political organization and has begun to give more space for social autonomy. Social organizations have begun to cooperate actively with the government to establish a cooperation model with Chinese characteristics (Kang 1999). Lin Yue People’s Mediation Studio, as a civil non-enterprise organization operating in the form of NGOs, is one of the diversified forms of organization led by the country in the period of social transformation. It not only presents the characteristics of NGOs in form but also has inextricably linked with the government in terms of funds, personnel and operation. Although there are many restrictions on the freedom of action and development, it cannot be denied that it is moving towards a more independent and autonomous direction.

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When the author interviewed the director of J Street Justice Office, he also hoped and supported that the organization could develop more independently.12 It is hoped that (social organizations) can gradually get rid of the government, whether it is power relations or sources of funds. More enterprises can invest and sponsor, establish more NGOs in the community instead of the government to deal with community problems. For example, Lin Yue belongs to the older generation and her ideas and operation methods are not so advanced. We needs new generation to replace her later. Mediators are hoped to be college students, professional social workers with a high level of knowledge and those who can be engaged in practical work so as to embark on the road of professionalism. After all, the people’s mediation committee has been an organization existing for a long time. We cannot throw it away. It can be used as a supplement for the judiciary to undertake the jury work. The final decisions and work should all be handed over to mediators and social workers. Nowadays, in other areas and streets of Shanghai and other cities in China, the mode of resolving social disputes through diversified social organizations has been gradually promoted. For example, the Standing Committee of the Xiamen People’s Congress of Fujian Province formulated the Decision on Improving the Diversified Dispute Resolution Mechanism in March 2007, which was the first attempt to implement the diversified dispute resolution mechanism through local legislation in China. In addition, many provinces and municipalities have begun to set up social organizations featuring government purchasing services, such as medical service institutions in Wenzhou Zhejiang Province,13 social work institutions in Dongguan Guangdong Province,14 the professional services committee of Xinhua Street, Changning District15 and Yang Boshou People’s Mediation Studio, Yangpu District,16 Cai Xiangyun People’s Mediation Studio in Zhabei District in Shanghai,17 etc. Shanghai’s government purchasing services are mainly realized through the operation mode of “government undertaking, directional commissioning, contract management, evaluation and fulfilment”, relying on the establishment of crosssectoral work coordination mechanism, exploring diversified purchasing services, 12 Interview

with Director W of J Street Judicial Office, August 2007.

13 “Caizheng touru jizhi zhuanbian, xin yigai fang’an tuixing ‘zhengfu goumai fuwu’” (Transforming

the financial investment mechanism and promoting “government purchasing services”), 6 April 2009, http://news.66wz.com/system/2009/04/06/101184748.shtml, accessed 9 March 2019. 14 “Dongguan:Yiban shehui fuwu jigou chengjie zhengfu goumai fuwu”(Dongguan: Half of the social service organizations undertake government purchasing services), 12 December 2018, http:// www.csix.cn/2018/1212/946193.shtml, accessed 9 March 2019. 15 “Jiejue shequ shiwu jishou nanti, zhengfu goumai gongzuoshi zhu yewiehui” (Solving the difficult problem of community affairs, government purchase studio’s services to aid committee), 26 June 2018, http://sh.sina.com.cn/news/20080626/110492574.shtml, accessed 9 March 2019. 16 “Shanghai 001 hao tiaojieyuan sheli tiaojieshi, renmin tiaojie maishang zhuanzhihua zhilu” (Shanghai No. 001 mediator setting up people’s mediation studio, people’s mediation is on the fulltime road), 10 November 2004, http://sh.eastday.com/eastday/shnews/fenleixinwen/qita/userobjec t1ai640728.html, accessed 10 March 2019. 17 “Chunfeng huayu jiaoguan ‘hexie’ hua” (Spring wind and rain irrigates “harmonious” flowers), http://www.shouxian.gov.cn/openness/detail/content/5b8345ee68b750fa129690f6.html, accessed 2 April 2019.

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broadening financial channels, expanding the scope of purchasing services, and strengthening capital supervision and performance evaluation.18 First of all, in order to ensure the smooth development of purchasing services, cross-sectoral work coordination is essential. The government purchases the services of social organizations, involving project approval, fund allocation, result publicity and effect evaluation. Jing’an District in Shanghai has set up a public service evaluation committee for government purchasing social organizations, led by the deputy director in charge, with the participation of relevant departments such as the Social Construction Office, the Civil Affairs Bureau and the Finance Bureau. All the departments have clear responsibilities, division of labor and cooperation to jointly promote the government’s purchase of social organization services. The Social Construction Office takes the lead in grasping the overall situation, the Civil Affairs Bureau is responsible for qualification auditing and expert recruitment, and the Finance Bureau is responsible for budget auditing and fund allocation. Secondly, the channels of funds for purchasing social organization services should be broadened. At present, Shanghai districts (counties) mainly purchase services in three ways: directional entrustment, public venture capital and public bidding. And the resources of government purchasing services mainly come from special funds, budgetary funds and lottery public welfare funds. Therefore, in the process of purchasing social organization services, it is necessary to explore innovative ways of purchasing services according to local conditions. Thirdly, the scope and scope of government purchasing services need to be continuously expanded. For example, the purchasing of social services by the government in Pudong New Area starts with entrusting social organizations to manage the citizen centre, and extends to many public service areas such as pension, education and training, social correction, ethnic integration, education of children of migrant workers and so on. In practice, Shanghai actively responds to the diverse needs of modern society and establishes a two-way interactive way to determine service items. Government departments would either put up “demand items” or social organizations’ design “innovation projects” independently, which can also be incorporated into the scope of government purchasing services. Fourthly, to strengthen fund supervision and performance evaluation. It is necessary to establish a multi-party project fund supervision model. Through special evaluation, including internal and external evaluation, performance tracking and multiparty evaluation of the project implementation effect are carried out. At the same time, through multi-party co-supervision, fairness, transparency and standardization of purchasing services can be ensured and the efficiency of the use of funds and social benefits can be maximized. According to the principle of “who buys, who supervises”, we can clearly define the supervisory responsibility units, establish the information disclosure system and the complaint system of social supervision. Project

18 Haibing He, “Zhengfu xiang shehui zuzhi goumai fuwu de jingyan, wenti he duice yanjiu” (Experience, problems and countermeasures of government purchasing services from social organizations), http://www.chinanpo.gov.cn/700109/92651/newswjindex.html, accessed 10 March 2019.

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audit should also accept the supervision of the NPC and CPPCC and establish a joint law enforcement mechanism and a four-level early warning network. It can be seen that the operation mode of “government-led promotion, autonomous operation of associations and multi-participation of society” has sprung up in all parts of Shanghai and other cities in China. This is also a response to the obvious shortage of public services provided by the government to the society. We must establish and improve a new system of cooperation between the government and NGOs and improve the government. It is imperative for the government to reform the new mode of purchasing services from NGOs. And the research shows that the state-led diversification model of social organizations can innovate the model of social management and community governance, meet the diverse public service needs, reduce government administrative costs, and promote the capacity of social organizations. Although the case in this book is not enough to represent and illustrate the situation of all group disputes, especially the conflicts caused by differences in identity and attitude, it can at least reflect the forms of collective interest conflicts prevalent in Chinese cities and some characteristics of the development of pluralistic social organizations under the control of the state. Therefore, in the long run, the government will strongly support the studio in resolving community conflicts and maintaining harmony, and guaranteeing policy support and financial support for the studio. The idea of J Street is to gradually develop the quasi-socialized studios into the “socialized” NGOs. Undoubtedly, it is of great help to effectively enhance community autonomy and enhance the efficiency of dispute mediation agencies. But it still involves many policy and system amendments and improvements. It is necessary to further increase the openness of the media and reduce government intervention in society so as to ensure the rights and interests of citizens, safeguard the authority of the state and make social harmony possible.

4 Summary On the basis of in-depth analysis of collective disputes in Shanghai communities, this chapter focuses on the core issues of the study, the characteristics of collective disputes and the changes in the interaction between the state and social organizations reflected in the way they are handled and solved. This paper puts forward the theory of “state-led social pluralism” and its explanatory framework to analyze the current relationship between the state and society in China, to illustrate that social organizations tend to develop independently with the support of the state. At the same time, they are under the control and influence of the state and they are allowed to expand their areas of action as far as possible. Both the state and society are making rational choices to maximize their own interests. It can also be seen from the case that both the parties to the conflict and the studio as a mediator make rational choices about their action orientation in the interests of confrontation and interaction. The diversified development of Shanghai people’s

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mediation organizations and the intentional cultivation and support of the community elite by the state have always played a dominant role in the state-led social governance. This mode is of great and far-reaching significance for the reconstruction and development of the social relations of China’s urban countries.

References Chen, J. (2016). Useful complaints: How petitions assist decentralized authoritarianism in China (Lexington Books, 2016). Coser, L. A. (1977). Masters of sociological thought: Ideas in historical and social context. New York: Harcourt Brace Jovanovich. Dahl, Robert A. (1961). Who Governs? Democracy and Power in an American City. New Haven: Yale University Press. Diamond, Larry. (1994). Rethinking civil society: Toward democratic consolidation. Journal of Democracy, 5(3), 4–17. Diamond, Larry. (2008). The spirit of democracy: The struggle to build free societies through the world. New York: Columbia University Press. Fan, Yu. (2004a). “Tiaojie de chonggou: Yi fayuan tiaojie de gaige wei zhongdian” (Reconstruction of mediation: Focusing on court mediation reform). Fazhi yu Shehui Fazhan (Legal System and Social Development), 2(3), 90–108. Fan, Y. (2004b). “Jiji de changshi, kunnan de tansuo” (Positive attempt, difficult exploration). Fangyuan, 7. Frolic, B. M. (1997). State-led civil society. In T. Brook & B. M. Frolic (eds.), Civil society in China. Armonk, N.Y.: M.E. Sharpe. Gu, Jun, Lin, Shangli, & Wang, Weida (Eds.). (2000). Shequ Tiaojie yu Shehui Wending—Shanghai Luwanqu Wuliqiao Jiedao Ge’an (Community Mediation and Social Stability: A Case Study of Wuliqiao Street, Luwan District, Shanghai). Shanghai: Shanghai University Press. Hall, J., & Ikenberry, G. J. (1989). The state. Minneapolis: University of Minnesota Press. He, F., & Guo, Y. (2007) Guojia he shehui guanxi shiye zhong de zhongguo nongmin: 20 shiji xiabanqi xifang guanyu guojia he nongmin guanxi de yanjiu zongshu (Chinese peasants in the perspective of state-society relations: A summary of western studies on state-peasant relations in the second half of the 20th Century), Zhejiang Xuekan (Zhejiang Academic Journal) 6. Kang, X. (1999). Zhuanxing shiqi de zhongguo shetuan (Chinese societies in the transition period), Zhongguo Shehiu Kexue Jikan (Quarterly Journal of Social Sciences of China), 1999 Winter (pp. 11–14). Kang, X., & Han, H. (2005). Fenlei kongzhi: Dangqian zhongguo dalu guojia yu shehui guanxi yanjiu (Classified control: Current state-society relations in Mainland China), Shehuixue Yanjiu (Sociological Studies), 2005 (6), (pp. 80–89). Kim, Yao-kee. (1997). Zhongguo Zhengzhi yu Wenhua. Chinese Politics and Culture: Oxford University Press. King, Roger. (1986). The state in modern society: New directions in political sociology. Chatham, NJ: Chatham House. Liang, Z. (1996). Qingdai xiguanfa: Shehui yu Guojia (Customary law of the Qing dynasty: Society and state). Beijing: Press of China University of Political Science and Law. Mann, M. (1986). The autonomous power of the state: Its origins, mechanisms and results. In J. A. Hall (Ed.), States in history. Oxford: Basil Blackwell. Marx, G., & McAdam, D. (1994). Collective behavior and social movements. Englewood Cliffs: Prentice Hall. Miao, X. (2004). Guanyu renmin tiaojie gongzuo de sikao yu shijian (Thoughts and practice on people’s mediation). Zhongguo Sifa (China Judiciary), 4, 45–47.

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Chapter 7

Methods and Skills of Social Organization Mediating Disputes

This chapter mainly discusses the important social function and significance of social organizations’ involvement in dispute mediation. By introducing the practical mediation skills and methods of social organizations in mediating disputes, this part introduces the conditions and constraints that social organizations with mediation functions need to possess. Social organizations involved in dispute mediation can effectively bear the pressure of the government to resolve disputes and enhance the ability of conflict resolution at the grassroots level. It is an important issue of urban grassroots governance and the main direction of future development.

1 The Social Function and Significance of Social Organization’s Intervention in Mediation Since the reform and opening up, with the development of market economy, more and more social organizations have emerged in Chinese society, which has become an indispensable and important force in modern social management. Especially since 2006, with the development and transformation of economy and society, the number of social organizations in China has been growing vigorously. The number of social organizations registered in civil affairs departments increased from 140,000 in 1999 to 320,000 in 2005, an increase of 124 times, with an average annual growth of more than 20%. By the end of June 2014, there were 561,000 social organizations in China, including 294,000 social organizations, 3,736 foundations and 264,000 civil nonenterprise units.1 In the past ten years, the number of registered social organizations has nearly doubled, and there are also countless unregistered social organizations. Although the development of social organizations in China is relatively lagging 1 “Zhongguo

shehui zuzhi fazhan qushi fenxi: You liang dao zhi de zhuanbian” (Analysis of the development trend of Chinese social organizations: From quantity to quality), 15 October 2013, http://hunan.ifeng.com/gongyi/detail_2013_10/15/1334551_0.shtml, accessed 7 August 2019. © Shanghai People’s Publishing House 2020 J. Hu, Disputes Resolution in Urban Communities in Contemporary China, https://doi.org/10.1007/978-981-15-8644-6_7

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behind, with the acceleration of modernization and the development of socialist market economy and democracy, social organizations have also developed vigorously since the 1990s. In recent years, it has increased rapidly at an average annual rate of 10–15% (Wang and Sun 2010). The participation of social organizations in social management and the use of their own advantages to provide various professional services can not only meet the needs of different groups, make up for the deficiencies of government and market functions, but also enable social organizations to enhance their ability and improve their own deficiencies in the process of participating in social management. In particular, in view of the current situation of frequent conflicts in Chinese society and the violent, extreme and sudden characteristics of mass incidents in recent years, social organizations have established trust and interaction with specific groups of people because they are rooted in society, close to urban communities, especially close contact with the masses and establish daily relationships. When social disputes arise at the grassroots level, social organizations can directly provide local, fast and timely conflict mediation services for the people, especially vulnerable groups. This is better than litigation and arbitration, which can eliminate disputes in the initial stage and relieve the crisis in the first line of defense. Especially in the case of letters and visitors and major collective disputes with serious antagonism to the government, relevant social organizations can play a good role in communication between the people and the government, ease the antagonism between the two, and play an important role of “buffer” and “pressure relief valve”, which is conducive to defuse and settle some difficult and long-term conflicts. Social organizations’ participate in the work of dispute mediation through the government purchasing services and cooperation with the state plays an important role in resolving conflicts, which is difficult for the government to achieve. Social organizations can play a lubricant role in communication between officials and citizens after they intervene in social disputes resolution. Especially when community residents encounter practical problems, mediators of social organizations can rely on their neutral and independent third-party status to communicate directly with them, help residents interpret relevant policies and regulations, alleviate antagonistic emotions and encourage the expression of interests through rational and peaceful means. In this process, of course, it is very important for the parties to have confidence in and identify with the authority of the mediator. Therefore, the mediator should first establish a good feeling with the public and trust in the mediation organization and himself and achieve the desired results through the combination of emotion, reason and law. Professional mediators in social organizations have the combination of professional legal mediation knowledge and skills and long-term community experience and relationships, which is more conducive to the handling of civil disputes and gain credibility of community residents. When confronted with community disputes, especially collective conflicts, social organizations are conducive to the integration of field culture, human relations and network relations within the framework of the rule of law to resolve disputes and ensure the harmony and stability of the community while safeguarding the rights and interests of the parties. Social organizations in the community are generally familiar with the residents in the region. They can use the

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stable personal network to provide a diversified and individualized way of mediation in the actual dispute resolution. They can make timely and rapid adjustments according to the specific situation and the needs of the parties, so that many disputes can be prevented and settled effectively. Finally, the participation of social organizations in the mediation of disputes is conducive to breaking the inherent tradition of the government’s unified management model, innovating the model of social governance and the development of diversified dispute resolution mechanism. Although the government recognizes the importance of the existence of social organizations and their participation in social governance, to a large extent, some managers still have concerns about the involvement of social organizations in social affairs and the resolution of disputes, so they dare not release the space to transfer their management power and services. This is especially manifested in the restrictions and requirements on the registration and establishment of social organizations as well as the provisions on the nature of social organizations engaged in business. In fact, social organizations can help the government to relieve pressure and participate in social management and services to a large extent, and can make ordinary people change the traditional dependence mentality of “looking for the government for everything”. Only by transferring the work of resolving disputes and part of the work that social organizations can undertake to them so that they can give full play to the role of “intermediary” between the government and the masses, can the government break away from the busyness and triviality and deal with conflicts and resolve crises rigidly and softly.

2 Basic Norms of Social Organization Mediation As an effective way to resolve disputes, people’s mediation can relieve the burden of the court, the pressure of the functional organs and the burden of the government. At the same time, people’s mediation has the advantages of rooting at grassroots and a wide range of coverage. It plays a leading role in the prevention and resolution of conflicts from its beginning. It is conducive to giving full play to social organizations and fostering and improving the ability of social governance. Meanwhile, social organizations involved in mediation of disputes are clearly stipulated in law and policy. In particular, there are special requirements for the nature, norms and mediators of social organizations. According to the provisions of the People’s Mediation Law of the PRC (hereinafter referred to as the People’s Mediation Law),2 people’s mediation is a mass autonomous activity under the chairmanship of the People’s Mediation Committee, which persuades and mediates civil disputes in accordance with law, policy and social morality and promotes mutual understanding and mutual concessions between the parties to resolve disputes. The judicial administrative department of the State Council is responsible for guiding the people’s mediation work throughout the 2 See

Appendix E, People’s Mediation Law of the People’s Republic of China.

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country, and the judicial administrative department of the local people’s governments at or above the county level is responsible for guiding the people’ mediation work in their respective administrative regions. The people’s courts at the grassroots level provide professional guidance to the people’s mediation committees in mediating civil disputes. People’s mediation belongs to civil mediation, which is different from administrative mediation and judicial mediation. It is a social, mass and civil activity. Equality, respect and acceptance are the core concepts in the work of social organizations, which guide the position of mediators in resolving actual disputes. Social organizations not only help parties to disputes to resolve conflicts and problems but also attach importance to the results and satisfaction of mediation, reduce the possibility of disputes occurence and prevent them from becoming protracted and recurring ones. Social organizations involved in people’s mediation must adhere to the principles of people’s mediation work on the basis of conformity with the People’s Mediation Law, including three aspects: (1) The principle of equality and voluntariness. Firstly, people’s mediation must be carried out on the basis of equality and voluntariness of the parties concerned and any action of forcing either party to accept mediation shall not be taken. Specifically, the acceptance of disputes must be based on the willingness of the parties and the willingness of the parties. If one party is unwilling to accept mediation or unwilling to accept mediation by an organization or individual, it can not be forced to accept it. Secondly, in the process of mediation, the parties must be patiently and meticulously persuaded, enlightened and persuaded, and no discrimination, coercion, favoritism and suppression should be allowed. Thirdly, mediation agreements reached through mediation must be accepted voluntarily by the parties concerned and not imposed on others. (2) The principle of legitimacy and rationality. Firstly, people’s mediation committees must mediate civil disputes in accordance with laws, regulations, rules and policies. If laws, regulations, rules and policies are not clearly stipulated, they should be carried out in accordance with socialist morality. This principle requires that people’s mediation activities must be legitimate, that the scope, procedures and methods of mediation must conform to the provisions of relevant laws, regulations and rules, and that the conduct of mediation should be standardized, fair and reasonable. Secondly, the main way to mediate civil disputes is to persuade and educate the parties through national laws, party and government policies and socialist morality so that the parties can distinguish right from wrong and differentiate responsibility according to law, policy and morality. Thirdly, the results of mediation of disputes and the determination of the rights and obligations of the parties must not violate laws and policies. The local “customary law” (local regulations and civil conventions) cannot be used to replace the law nor can it violate the provisions of the law when the law conflicts with local culture and traditions, whicih means conflicts cannot be settled without principle.

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(3) The principle of not restricting the litigant’s legal rights. After a dispute has arisen, the parties have the right to bring a lawsuit to the people’s court and may not restrict their litigation rights without mediation. In the process of mediating civil disputes, the parties can interrupt mediation at any time and for any reason and bring a lawsuit to the people’s court. After conciliation, the parties still have the right to bring a lawsuit and request the people’s court to adjudicate the dispute and its agreement. If there is a clause in the mediation agreement that “neither party can bring a lawsuit for any reason”, it is against the mandatory provisions of the law and is invalid. Of course, the parties also have the legal obligation to fulfil the people’s mediation agreement, and may not repent at will. If a party fails to perform the mediation agreement, the other party may sue by the people’s mediation agreement. If one party sues in the original dispute, the other party may plead with the people’s mediation agreement. (4) There is no charge. The People’s Mediation Committee of Social Organizations shall not charge any fees for mediating conflicts. The basic characteristic of social organization undertaking dispute mediation is that as a neutral third party mediator. In the practice of dispute settlement, due to the limitations of many conditions and abilities of the parties to negotiate on their own, especially when disputes involve local governments and individual officials, it is difficult for ordinary people to obtain legitimate compensation for loss of interests by themselves. Resolving conflict by citizens themselves is usuallt of low success rate, poor standardization and lack of guarantee of implementation. Social organizations with mediation function provide a channel of dialogue and mediation for the parties to solve these problems. The success rate of mediation and the satisfaction of the parties to the results are also closely related to the authority and popularity of the mediation organization, the skill, level and credibility of the mediator. Social organizations must also follow certain procedures in carrying out mediation according to the People’s Mediation Law, but there are differences because of its different nature from the mediation set up by the court. The mediation of social organizations is determined by the rules of the host organ, which is more flexible than judicial mediation. As social organizations need to go through five steps to start mediation, prepare mediation, carry out mediation, terminate mediation, sign mediation agreement and implement mediation. Initiation of Mediation The initiation of mediation is the beginning of dispute acceptance and mediation. According to the specific types of disputes and the industry of mediation agencies, the scope and nature of business generally fall into two categories: First, the parties apply for mediation. Mediation may be jointly applied by both parties but usually by one party, the other party agrees to accept the mediation and then enters the mediation procedure. Second, social organizations take the initiative to mediate. In the practical practice of urban communities in China, the method of combining parties’ application for mediation with mediation organizations’ active mediation is adopted to prevent disputes from intensifying due to improper mediation. This not only respects the will

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of the parties but also gives full play to the initiative of the mediation organization. Mediation organizations usually encourage or persuade parties to accept mediation to resolve conflicts and prevent collective incidents after understanding the situation. According to Article 7 of the Organizational Regulations of the People’s Mediation Commission of China (promulgated by the State Council on June 17, 1989), the People’s Mediation Committee shall promptly mediate disputes according to the application of the parties; if the parties have not applied, they may also mediate on their own initiative.3 According to Article 13 of Tianjin Provisional Measures for People’s Mediation of Social Organizations, parties to disputes within social organizations may apply to the People’s Mediation Committee of Social Organizations for mediation. And the People’s Mediation Committee of Social Organizations may also take the initiative to mediate. If one party expressly refuses to mediate, no mediation shall be allowed.4 This is one of the important characteristics of our people’s mediation. Preparing for Mediation 1. Identifying mediator To carry out mediation, mediation organizations need to identify mediators with certain legal knowledge and mediation skills. Generally, mediation organizations can choose or appoint mediators. The former is that the mediation organization provides the parties with the list of mediators, including personal data, resumes, qualifications and relevant results of mediation, and the parties themselves choose the mediator. The latter approach is to appoint the mediator by the mediation organization when the mediation organization is unable to provide more than one mediator or because the parties are unwilling or difficult to make a choice. At the same time, according to the specific circumstances of disputes and parties, a mediator may chair a mediation meeting, or a committee or group (especially collective disputes or disputes involving multiple parties) jointly attended by a chief mediator. Or it can be jointly mediated by a number of mediators representing for one party and the Chief Mediator acts on behalf of the neutral position. 2. Choosing the place of mediation. Mediation usually takes place in the place set up by the mediation organization or organization, or other places can be chosen by both parties to facilitate the parties and facilitate the resolution of conflicts. Although the choice of mediation venues is flexible, its purpose is to ease the antagonism and hostility between the two sides and avoid the use of court-style layout. Mediation places need to make people feel relaxed and decompressed, reduce conflict psychology rather than increase the mood and atmosphere of antagonism and confrontation. Because mediation is different from adjudication, it weakens the influence of power and judgment in the whole process, avoids using legal platform, mallet and other props in mediation places, mediators do not wear legal robes, try to use language 3 See 4 See

Appendix J, Organizational Regulations of the People’s Mediation Commission.. Appendix H, Interim Measures for People’s Mediation of Tianjin Social Organizations.

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close to daily life to explain and communicate with plain languages but avoid legal expressions, and do not force parties to submit mediation agreements to the Judiary for examination, etc. 3. Confidentiality of each party’s information. Mediation organizations should be highly responsible to the parties and protect their privacy and information from infringement and exposure. Usually, the place of mediation should avoid the participation, audition and filming of the media and the public unless the parties are willing to accept mediation in public. In collective disputes, more attention should be paid to public events, flexibly choose appropriate places for mediation so as to avoid hindering the process and effect of mediation because of the influence of the media and others. 4. Preparations for mediation. The participants in the conciliation meeting are mainly determined beforehand. The mediator need to explain to the parties the procedure, nature, results, rights and obligations of the parties and the legal effect of the mediation agreement. The mediators are required to confirm the principles of mediation, mediators, related expenses involved, confidentiality and honesty and legality. Conducting Mediation Social organizations can adopt flexible, effective and diversified procedures and steps to mediate specific disputes. Usually, the mediation process is mainly to promote the parties to exchange and communicate on the issue of disputes, through negotiations and consultation to promote consensus formation. Mediators try to make both sides reach agreement through communication, balancing the interests of all parties, alleviating the conflicting emotions of all parties, mediating the points of contention. Social organizations need to go through four steps in mediation. Firstly, the mediator and the parties jointly confirm the intention of mediation and the power and obligation relationship of each party, declare the sincerity, honesty, confidentiality of the mediation process and fulfill the obligations of the mediation agreement, and reach mutual consensus and get the consent of the parties. Secondly, the parties can state the facts of the dispute, list the evidence they have and the conditions they need to meet in order to reach a mediation. The mediation organization may conduct investigation on the statements of the parties and confirm the rationality and legitimacy of the conditions required by the parties according to the judgement of the mediators and the investigation of disputes. Understanding the other side’s bottom line and strength in the exchange of opinions and relevant evidence lays the foundation for resolving disputes. Thirdly, the way of mediation can be flexible according to the nature of the dispute and the emotions of the parties. In the case of intense conflict and sharp confrontations between the two parties, one-to-one mediation can be adopted. The mediator contacts the two parties separately, listens to their dissatisfaction, states their reasons and requirements, and the conditions needed for resolving the dispute. The two parties avoid meeting directly to avoid the intense dispute or increased conflicts. After a calm and rational dialogue, the two sides can communicate directly and with

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the the mediator’ keeping neutral and impartial, reconciliation could be facilitated and avoid the parties’ violating the agreement again. If both parties are emotionally stable and can have a rational and calm dialogue, the mediator can directly talk to the two parties through dialogue and mediation. This form of direct communication and communication between the two parties at the same time is more open and fair, which helps to eliminate the doubts of the parties about mediation and avoid misunderstandings caused by information asymmetry. Understanding and inequality, in the case of sincere communication, are easier to form consensus and reach agreement. Fourthly, the proposal and formation of dispute resolution. The final settlement of disputes may be put forward by both parties or parties, on which basis the mediator may make a compromise proposal or propose a third option. Or the mediator may, on the basis of synthesizing the opinions of all parties, directly put forward the mediation plan according to the objective situation and facts and provide the parties with suggestions for resolving disputes. In reality, it usually takes many times and repeated consultations, consultations and games to reach a consensus on the solution, so mediators’ coordination, explanation and persuasion are of vital importance. Fifth, reach a mediation agreement and end mediation. Ending Mediation The termination of mediation is mainly based on the results of two kinds of mediation to terminate the mediation process, namely, the success of mediation and the failure of mediation. When the mediation fails, the parties to the dispute or the parties fail to reach a settlement, the mediation will end. The parties may choose to enter the proceedings or continue to try other ways to satisfy their interests. When the result of mediation makes the two sides reach consensus to resolve the conflict, oral agreement can be formed. The parties make oral agreement under the witness of the mediator and immediately fulfill their commitments, such as paying compensation, apologizing for compensation, fulfilling their due obligations, etc. The usual practice is that both parties sign the people’s mediation agreement under the witness of the mediator. Signing and Implementing Mediation Agreements The final step in the conciliation procedure is to sign an agreement on the outcome of the conciliation and implement it. The mediator may, after explaining in writing to both parties, request both parties to sign. The mediation agreement must include the basic information of the parties, including their names, identity certificates, professional positions and addresses. It must also include the basic information of the agents, the basic information of the disputes and the mediation results, especially the rights and obligations of both parties, the way and time limit of performance. After the parties have signed, the agreement will come into force, and the mediation organization or mediator will also need to sign and seal. For the validity of people’s mediation, because people’s mediation agreement has the nature of civil contract, its legal validity should be determined by the provisions of Contract Law and other relevant laws (Yang 2009). The effective requirements of the people’s mediation agreement include: (1) the parties signing the people’s

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mediation have the corresponding civil capacity; (2) the expression of intention is true; (3) the content of the mediation agreement does not violate the mandatory provisions of laws, administrative regulations or social and public interests. It can be seen that the people’s mediation agreement established according to law is the true expression of intention of both parties. Even if the content of the agreement determines the abandonment of certain rights or interests by one party, as long as the abandonment of the rights or interests is based on the real will of the parties, it is still legally binding on them. Yet after the people’ mediation agreement comes into force, it does not have the effect of enforcement. After disputes occur between the parties, they cannot directly apply for compulsory enforcement but need to bring a lawsuit to the people’s court and solve it through litigation procedure. Therefore, effective people’s agreement does not have the effect of compulsory enforcement. However, in accordance with Article 10 of the Provisions of the Supreme People’s Court on the Trial of Civil Cases Involving People’s Mediation Agreements (hereinafter referred to as “Several Provisions”), it is stipulated that: “Where a mediation agreement with creditor’s rights content is endowed with the force of enforcement by a notary organ according to law, the creditor may apply to the people’s court of the place where the executed person resides or where the property of the executed person is located for execution.”5 Therefore, in accordance with the provisions of Articles 4 and 24 of the Provisional Regulations on Notarization of the People’s Republic of China, when a party fails to perform the creditor’s rights document which has been proved to be effective for compulsory enforcement by a notary office, the other party may apply to the grassroots people’s court with jurisdiction for enforcement.6 When the content of the people’s mediation agreement damages the interests of the state, the collective or the third party, or conceals the illegal purpose in a legitimate form, or damages the public interest, or violates the mandatory provisions of laws and administrative regulations, or is forced to mediate by the people’s mediation committee, the mediation agreement will be invalid. According to Article 8 of Several Provisions, invalid mediation agreements or revoked mediation agreements are not legally binding from the beginning. However, if part of the mediation agreement is invalid, it will not affect the validity of other parts, and the other parts are still valid. According to the provisions of Article 6 of the Certain Provisions, one party has the right to request the people’s court to change or cancel the people’s mediation agreement under the following circumstances: (1) because of major misunderstanding; (2) the process of reaching mediation agreement is obviously unfair. If one party, by means of fraud, coercion or taking advantage of the danger of others, causes the other party to agree to sign a mediation agreement in violation of its true intention, the injured party has the right to request the people’s court to change or cancel it. Therefore, the conditions for the change or revocation of the people’s mediation agreement and the way in which the right to change or revoke is exercised are the 5 See

Appendix K, Provisions of the Supreme People’s Court on Trial of Civil Cases Involving People’s Mediation Agreements. 6 See Appendix L, Provisional Regulations of the People’s Republic of China on Notarization.

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same as those in general civil contracts. However, it should be noted that the parties themselves decide to exercise the right of change or revocation, then the people’s court cannot interfere. If a party requests a change, the people’s court shall not revoke it. Moreover, the exercise of the right of revocation is time-limited. When the party with the right of revocation has not exercised the right of revocation within one year from the date of knowing or ought to know the cause of revocation, or the party with the right of revocation has explicitly expressed or abandoned the right of revocation by his own act after knowing the cause of revocation. After the people’s mediation agreement is invalid or revoked, the party concerned may bring a lawsuit in the people’s court on the basis of the original civil legal relationship. However, after the people’s mediation agreement has been changed, the parties concerned may not bring a suit to the people’s court on the basis of the original civil legal relationship but can only apply to the people’s court for the enforcement of the judgment on the change of the mediation agreement. In summary, we can see the whole process of people’s mediation. Figure 1 shows the main procedures of mediation by social organizations. In actual mediation, according to the actual situation and the particularity of disputes, it can be flexible according to the law.

3 The Ways and Skills of Social Organization Mediation There are two tendencies of community and professionalization in mediation organizations in China (Fan et al. 2010: 100). China’s legal profession has also been committed to leading people’s mediation organizations to a professional path, such as through the establishment of people’s mediation associations and other organizations to become similar to the bar association’s professional self-regulatory organizations. Retired judges, lawyers and young law graduates are also encouraged to work as full-time mediators in communities in major cities such as Shanghai, Beijing and Guangzhou. Especially in Shanghai, the Judicial Bureau actively expands the work field of people’s mediation, builds a three-mediation linkage system based on people’s mediation, vigorously develops industrial and regional mediation committees, and promotes diversified dispute resolution models of people’s mediation and arbitration mediation, industry association mediation and participation of social professional organizations in mediation. The organic combination of people’s mediation and labor arbitration, doctor-patient dispute mediation and public security mediation will further enrich the work content of grand mediation.7 In Henan, Shaanxi, 7 “Shi

sifaju zhaokai yi renmin tiaojie wei jichu de santiao liandong tixi jianshe tuijinhui” (The Municipal Judicial Bureau convened the promotion meeting for the construction of the three- mediation linkage system based on the people’s mediation), The Shanghai Municipal People’s Government, 4 Augst 201, http://www.shanghai.gov.cn/nw2/nw2314/nw2315/nw18454/u21aw1040228. html, accessed 9 August 2019.

3 The Ways and Skills …

Start the mediation

Ready to mediation

Carry out mediation

Put an end to the mediation

Sign and perform mediation agreements

183 The parties apply for mediation or the mediation organization offers mediation

Reconciliation

brings

both parties to mediation

To determine the mediator, mediation place, mediation time, etc

Clarify the norms and principles of mediation, assist the parties to communicate with each other, resolve the opposing emotions of both sides

State the facts of the dispute, conduct investigation and confirmation, and convene a mediation meeting to coordinate the interests of all parties

Determine the dispute focus, seek to resolve the key points of the dispute, strive to reach a consensus

Mediation fails and end the mediation or reach a reconciliation agreement

Sign the mediation agreement and fulfill the commitment

Choose other solutions, assist negotiations and witness the signing of mediation agreements

Explain and supervise the parties

to

fulfill

their

commitments

Fig. 1 Main procedures for mediation of disputes by social organizations mediation phase mediation activities mediator tasks

Guangdong and other provinces and cities, since 2010, they have actively practiced the concept of “active judiciary” (nengdong sifa). That is, courts or judges exceed their institutional roles in handling affairs according to law and make some judicial decisions with strong political nature in the name of justice, which should be made by legislative and administrative organs. Certainly, even if the initiative is motivated by good intentions (Posner 1996: 318).8 In practice, judges and presidents of courts are allowed to enter the community on weekends to receive disputes and letters and visits from the masses and provide mediation and related judicial services for the

8 There

are two main points in criticizing this kind of active judiciary. One is institutional, that is, judicial insecurity, overstepping the powers of legislative and administrative organs, and making decisions in a judicial (non-democratic minority decision) way that need to be made in a democratic political process. This situation may lead to many political decisions. Second, substantive, judicial organs and judges, due to lack of political experience, adequate information and balance of interests, often make mistakes in decision-making on issues with implications of social and public policies (Zhu 2010).

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masses, including consultation, publicity and legal education. Because of the judicial authority and personal charm of judges, they have the credibility that general mediators do not have when they give professional suggestions to settle disputes and preside over mediation. But usually in mediation organizations, mediators are not appointed by professional judges, prosecutors, police or lawyers, but full-time mediators. The main requirement of a full-time mediator is that he meets the special qualifications and can engage in mediation work according to law after necessary application, examination, selection procedure and training, obtaining qualifications certificate or specific permission. Usually, people who are impartial, connecting well with the masses and enthusiastic about people’s mediation have a certain level of law, policy and culture. Residents of jurisdictions above 65 years old with high school education can sign up as mediators. In the actual mediation, many retired cadres, teachers and volunteers of Party members are in the presence of people’s mediation organizations and engaged in mediation. Social organizations should play an active role in resolving social disputes, which is closely related to mediation skills and communication skills of mediators. In China’s urban communities, the conflicts between collective disputes and longstanding struggles caused by historical problems are often not solved through judicial and petition channels. Mediators need not only professional legal and mediation skills but also adequate investigation and understanding of the community’s public conditions, which can help resolve community conflicts and maintain community relations. Because social organizations are different from official government organizations and are closer to the people, mediators of social organizations need the following skills. First of all, mediation skills, which are the most basic skills to be mastered as mediators. In the whole process of mediation, the mediator needs the ability and method to deal with various procedural matters. For example, listen, calm anger, calm emotions, judge facts, flexibly respond to different situations, especially fierce conflicts, put forward suggestions and proposals and accept them for different parties, assist parties in making mediation schemes and agreements acceptable and satisfactory to all parties as far as possible and fully grasp the basis for dispute resolution (Fan and Li 2010). In addition to professional mediation knowledge and skills, the more important thing is the accumulation of long-term practical mediation experience, especially the judgment and grasp of different parties and disputes of different nature, that is, the so-called cultivation and improvement of resilience. Whether or not some conflicts which are difficult to reconcile with emotional intensification can be solved by guiding the parties’ psychology and communicating their ideas, leading them to express rationally and participate in mediation. This is inseparable from the mediator’s adaptability and communication skills. Secondly, it combines emotion, reason and law to control the situation and guide reconciliation. As a mediator, the most important thing is to control the whole dispute resolution process. Effective control can ensure that the parties to a dispute fully express their wishes and requirements, and ensure sincere and peaceful communication and exchanges. Especially in the initial stage of mediation, the mediator needs to control the conflicting mood and fierce debate between the parties, guide the parties

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to rational dialogue and avoid the escalation of disputes and remind both parties to respect each other. Do not interrupt the other party’s speech, do not make rude remarks because of emotional excitement, and avoid rude and uncivilized behavior. Thirdly, the ability to be objective and neutral. As a third party involved in dispute resolution, mediators must make the parties feel neutral in the whole process of mediation, and it is very important not to bias either party. Maintaining neutrality does not mean that mediators cannot judge disputes individually, reasonably persuade and explain disputes on the basis of facts, but that they should hold a fair and just attitude and analyze problems from an objective standpoint. In the process of mediation, both sides should be given equal time and attention to avoid displaying the mediator’s personal views and subjective feelings and views in oral or behavioral, including body language. To avoid criticism and judgment, the mediator should reiterate to the parties a clear understanding and understanding of the interests and needs of all parties, communicate and dialogue with all parties at the same time and experience, and avoid feeling unfair and partial to one party. In all kinds of complex disputes, the mediator’s skill of successfully reaching a settlement has little to do with the nature of the dispute, but is closely related to the accuracy of the mediator’s grasp of the focus of the dispute and the ability of the mediator to reach the acceptance of the solution by the parties in their appeal game. This ability also requires mediators to have a more accurate assessment and experience judgment on the connotation of disputes and parties to disputes. For mediators, in addition to their excellent communication and dispute resolution abilities, abiding by professional ethics norms in mediation is also an important condition for ensuring the success of mediation and building personal prestige, maintaining fairness and enhancing public trust. The so-called ethics refers to the regulation, morality and principle of adjusting human relations, that is, “the truth of human relations”. Ethics is a kind of inherent virtue which has the same restrictive and normative nature as law and is based on people’s conscience, occupation and identity. Professional ethics, also known as professional ethics in practice, is defined in the Encyclopedia of China, Philosophy Volume as “the sum of relatively stable moral concepts, codes of conduct and customs formed within the scope of the profession”. It is a code of conduct to regulate the relationship between people within the professional group and all aspects of the relationship between the professional group and society. It is also a standard to evaluate the good and evil, honor and disgrace of the practitioners. It has special binding force on the practitioners in the industry. The professional ethics of mediators refers to the good moral qualities that mediators should possess in the process of carrying out mediation activities, and the integration of good moral norms that mediators should follow in dealing with various contradictions and disputes. The mediator should first be responsible to the parties receiving the mediation and abide by the general public ethics. At the same time, we should adhere to the public interest and justice, and integrate the realization of self-worth with the resolution of justice and contradiction. The credibility and convincing prestige of mediators in local areas must be built on the basis of higher vocational and technical skills and good professional ethics.

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Most of the community disputes involve the problems in people’s daily life. Many disputes are caused by the conflicts of interests between individual citizens, groups of citizens and local governments. Most of the parties involved in these disputes are ordinary people or even vulnerable groups. They have limited legal knowledge, low litigation capacity and lack of awareness of litigation risk. China is in a period of social transformation with high incidence of conflicts and sharp increase of disputes. If mediators only consider laws and norms and neglect social ethics and sophistication, it is very difficult to really solve disputes and achieve the goal of “case closure”. Therefore, in the actual process of dispute resolution, mediators should not only strictly abide by the professional ethics required by the relevant laws and regulations of mediation, but also consider the specific situation of disputes from the perspective of social ethics. Only by integrating mediation with social ethics and cultural customs can they truly achieve efficient and satisfactory mediation result.

4 Limitations and Problems of Mediation People’s mediation plays a decisive role in China since it helps to resolve civil conflicts and disputes, eliminate the estrangement between the parties, promote honesty and friendship among members of society, and avoid the parties to court to the greatest extent. From the definition of people’s mediation, people’s mediation system is an autonomous system established by the CCP in the revolutionary base areas, which relies on the masses to solve civil disputes and implements mass autonomy. It is a necessary supplement and effective assistant to the people’s judicial work. At present, the system refers to a kind of mass self-determination under the chairmanship of the People’s Mediation Committee, based on national laws, regulations, policies and social morality, to persuade, educate and persuade the parties involved in civil disputes, to promote mutual understanding and compromise between the parties involved in disputes, to negotiate equally, to reach agreements voluntarily and to eliminate disputes. Governance activities. Therefore, there are some defects in the people’s mediation system from the beginning of its implementation, especially the great influence of administrative dominance and interference on the mediation process is an important reason why many people tend to choose lawsuit rather than mediation when they encounter disputes with certain assurance of winning the lawsuit. Generally speaking, the long-standing problems of people’s mediation include: (1) Over-dominance of administration weakens the popularity of people’s mediation On the basis of mediation, administrative policy plays a dominant role, surpassing the status of law in mediation results. Moreover, the origin, development and formation of people’s mediation are all formed in accordance with a series of administrative instructions, orders, resolutions and regulations. Although the government supports and leads the work, which guarantees the

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necessary conditions of funds, personnel and places for people’s mediation, it inevitably leads to the excessive infiltration of administrative power into the construction of people’s mediation system, especially the result of intervention in the settlement of some disputes involving the government. (2) There are still some problems in people‘s mediation, such as backward team building, aging personnel structure and low professional quality and ability. Even in the community people’s mediation organizations, although most mediators have rich experience in community work and the ability to resolve disputes, their age is still on the high side; the older generation of mediators rely more on experience to deal with problems, which will lead to excessive dependence on policies and relationship networks and lead to the weakening of the rule of law. Facing all kinds of disputes and contradictions arising from the adjustment of social structure, especially the disputes of doctor-patient, contract, compensation and labor, mediators are required to have professional legal knowledge and skills. There are also many problems in administrative mediation, especially because the current legal system in China has not effectively distinguished the scope of the functions of administrative organs in the category of administrative mediation, resulting in the uncertainty of the scope of the functions of administrative mediation. The inappropriate involvement of administrative power in judicial mediation and people’s mediation activities in administrative mediation results in the abuse of administrative power. With the promulgation of the Civil Procedure Law of the People’s Republic of China, the Organizational Regulations of the People’s Mediation Committee, the Regulations on the Work of People’s Mediation and the appearance of relevant judicial interpretations, the procedural system of judicial mediation and people’s mediation is gradually improving. However, the procedural provisions of administrative mediation are still relatively scarce, mostly embodied in abstract provisions of some laws, regulations and departmental rules. Judging from the current legal system of our country, the better stipulation of administrative mediation procedure is the administrative mediation procedure of traffic accident damage compensation. From the Road Traffic Safety Law of the People’s Republic of China to the Regulations on the Implementation of the Road Traffic Safety Law of the People’s Republic of China, and then to the Regulations on Processing Procedures for Traffic Accidents, detailed provisions have been made on how the traffic management departments of public security organs conduct administrative mediation for traffic accident compensation and damage.9 The predecessors of the people’s mediation system were mainly the mediation of civil disputes in Shaanxi, Gansu, Ningxia, Shandong, Chaji, Shandong and Central Jiangsu during the Anti-Japanese War (Zhang 2010). At that time, it was mainly administrative mediation and the administrative organs could even take the place of the parties to initiate litigation on mediation disputes. During the Anti-Japanese War, the people’s mediation system inherited the form of administrative mediation in the 9 Di Ronghai and Chen Jian, “Qiantan woguo minshi susong tiaojie zhidu de xianzhuang ji wanshan”

On the present situation and perfection of China’s civil procedure mediation system,” 16 December 2008, http://hrxfy.chinacourt.org/public/detail.php?Id=598, accessed 9 August 2019.

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Soviet Area. In the process of mediation, administrative staff used administrative power to force mediation, and even had serious problems of unreasonable mediation and punishment for disorder and disruption. Administrative-led interference is also reflected in the selection of mediators. It is common for administrative staff to concurrently serve as mediators. Yet because some administrative leaders do not understand the law, do not act in accordance with the law and use administrative power to force mediation and unreasonable mediation, force the parties to accept conditions to solve problems, and even serious problems of disruption and punishment. The orientation of administrative departments to people’s mediation is too high, which will also increase the difficulty of dispute resolution. Although people’s mediation is an important way to resolve civil disputes in China, due to the special historical background and political mission of people’s mediation, overemphasis on people’s mediation will lead to difficulties in effectively resolving disputes. Up to now, the development of people’s mediation has changed from a special people’s mediation committee to a social organization to resolve disputes. However, the government still attaches more importance to people’s mediation than to the law. Law giving way to mediation can easily lead to the weakening of judicial power, imperfect rule of law and reduce the use and implementation of judicial authority among the people, affecting the fairness and fairness of mediation. The main problem in judicial mediation is that judicial organs rely too much on people’s mediation in order to avoid people’s entanglement. Especially in civil cases and minor criminal cases, mediation is the first way to resolve disputes. Although to a certain extent, it helps to reduce the amount of litigation and avoid the breakdown of relations caused by judgments, it relies too much on people’s mediation. Mediation causes people to think that the judiciary lacks principle or is afraid of the masses, which leads to the frequent occurrence of indecision and entanglement. In addition, the people’s mediation system as a way of dispute settlement outside litigation, compared with judicial judgments, has obvious weakness in binding force and enforcement. As the acceptance of the mediation agreement is decided by the parties voluntarily, the binding force of the people’s mediation system is mainly realized through the people’s mediation agreement. However, because the mediation agreement is a voluntary agreement between the two parties, it does not have enough force and enforcement power compared with other documents such as court judgments (Zheng 2014).

5 Summary This chapter mainly explains the importance and significance of social organizations participating in dispute resolution. It emphasizes that social organizations participating in social management can make use of their own advantages to provide various professional services to meet the needs of different groups in order to make up for the deficiencies of government and market functions, and also enable social organizations to participate in social management. In the process of management, we should

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improve our abilities and overcome shortcomings. In addition, social organizations’ participation in the work of dispute mediation by government purchasing services, and through cooperation with the state, can play an important role in resolving conflicts that the government is unable to achieve through its independent third party status. Therefore, the participation of social organizations in the mediation of disputes is conducive to breaking the inherent tradition of the government’s unified management model, innovating the model of social governance and the development of diversified dispute resolution mechanism. However, in order to give full play to the ability of social organizations to solve social disputes, we must improve the mediation skills of social organizations and encourage the existence and development of diversified dispute resolution models. On the basis of recognizing the existing problems and shortcomings of mediation, we should cultivate and develop a mechanism that is closer to the current social situation and reality and can effectively resolve and control disputes.

References Fan, Y., & Li, H. (2010). Jiufen Jiejue: Lilun, Zhidu yu Jineng (Dispute Resolution: Theory, System and Skills). Beijing: Tsinghua University Press. Fan, Y., Shi, C., & Qiu, X. (2010). Tiaojie zhidu yu tiaojieren xingwei guifan: Bijiao yu Jiejian (Mediation system and conduct standards of mediators: Comparison and reference). Beijing: Tsinghua University Press. Posner, R. A. (1996). The federal courts:Challenge and reform. Harvard university Press. Wang, M., & Sun, W. (2010). Woguo shehui zuzhi fazhan de qushi he tedian (Trends and characteristics of the development of social organizations in China), Zhongguo Feiyingli Pinglun (China Non-Profit Review)(1) (pp. 1–23). Wang, S. (2000). Tizhi gaige zhong de chengshi shequ jianshe de lilun fenxi (Theoretical analysis of urban community construction in insitutional reform). Beijing Daxue Xuebao (Journal of Peking University, Philosophy and Social Sciences Edition), 5, 5–14. Yang, H. (2009). Renmin tiaojie xieyi xiaoli queding zhi shehuixue shijiao (Sociological perspective on the validity of people’s mediation agreements), Xiangtan Daxue Xuebao (Journal of Xiangtan University: Philosophy and Social Sciences), (29), 203–204. Zhang, X. (2010). Kangzhan shiqi de renmin tiaojie zhidu: Guize, jishu yu juxian (The people’s mediation system during the war of resistance against Japan: Rules, technology and limitations). Sifa (Judiciary), 2, 102–108. Zheng, Q. (2014). Tanxi renmin tiaojie zhidu de jiazhi yu juxian (Exploring the value and limitation of the people’s mediation system), Fazhi yu Shehui (Legal System and Society) (pp. 48–49), Retrieved August 2014.. Zhu, S. (2010). Gunayu nengdong sifa yu tiaojie (On active justice and mediation). Zhongguo Sifa (Chinese Law), 1, 5–16.

Chapter 8

Reality: Making Harmonious Community Work

To understand the society and culture of a particular society thoroughly, we must consider the economic and political environment of a particular historical period connected with events. — Peng (2003: 34)

This chapter summarizes the theoretical viewpoints, research results and findings of the whole book. Through exploring and summarizing the mechanism of community dispute prevention and resolution, it emphasizes the advantages and importance of diversified dispute resolution mechanism. At the same time, it lists the main contributions, limitations and shortcomings of the book to social conflicts and the relationship between China and the state and society. After preliminary reflection on this study, the part puts forward the development path and possible problems of dispute resolution from government-led to social autonomy.

1 State-Led Social Pluralism and Its Practice Through the study and analysis of collective disputes and their resolution mechanism in urban communities during the specific historical period of China’s current social transformation, this book proposes “state-led social pluralism” to explain the relationship between the state and the social organizations for conflict resolution in Chinese society. State-led social pluralism is the theory of comprehensive totalitarianism (Weber 1997; Reuschemeyer and Evans 1985; Mann 1986; Hall and Ikenberry 1989; King 1986); pluralism theory (Dahl 1961; Migdal 1988; Shils 1982, 1991; Diamond 1994, 2008); state embeddedness in society. Based on the viewpoint of 1988, 1994, 2001 and the concepts and theories of Frolic 1997, and on the relationship between the state and social organizations in urban communities in China and the current situation and characteristics of dispute resolution in urban communities, this chapter explains the attitude of the state towards the development of social organizations and the changes of social organizations’ own development.

© Shanghai People’s Publishing House 2020 J. Hu, Disputes Resolution in Urban Communities in Contemporary China, https://doi.org/10.1007/978-981-15-8644-6_8

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This book holds that the Chinese government is still in the leading position, but in the face of all kinds of complex social conflicts, it has begun to advocate and gradually expand the development space of diversified social organizations in order to reduce the government’s excessive burden of social contradictions and achieve the goal of building a harmonious society. Firstly, the theory of “state-led social pluralism” emphasizes that the state empowers the society appropriately so that different types of social organizations can communicate with the state in two directions and form a cooperative mechanism of mutual supervision, influence and help. In the current transitional period of Chinese society, state-led social pluralism has highlighted the dominant position of the state (government). The existence and development of social organizations have begun to expand the independent space and diversification. At the same time, it acts as a bridge between citizens and the government, and undertakes certain tasks for the state (solving social impulse). On the basis of sudden change, we should seek our own interests and development. The existence and development of this mechanism can create conditions for the realization of a harmonious society. The main conclusions of this book can be summarized as follows: Firstly, the theory of “state-led social pluralism” emphasizes that the state empowers the society appropriately so that different types of social organizations can communicate with the state in two directions and form a cooperative mechanism of mutual supervision, influence and help. In the current transitional period of Chinese society, state-led social pluralism has highlighted the dominant position of the state (government). The existence and development of social organizations have begun to expand the independent space and diversification. At the same time, it acts as a bridge between citizens and the government, and undertakes certain tasks for the state (solving social impulse). On the basis of sudden change, we should seek our own interests and development. The existence and development of this mechanism can create conditions for the realization of a harmonious society. Secondly, from the current situation of Shanghai community, it reflects that the reason behind the group conflict is the extremely unbalanced allocation of public power between the people and official organizations, coupled with the shortcomings of authoritarian political system and the imperfection of the rule of law, which leads to many problems left over by history. At the same time, when the relatively unauthorized community residents are infringed on their interests, they can not even solve the problem through the formal legal channels. However, the government’s petition departments still fail to directly solve the problem of the people in line with the principle of “putting the problem into the community”. This is a collective struggle of the citizens, even a long-term petition. The reasons for their petitions and endless noisy behavior are also their helpless choices to solve problems through mediation. Although mediation is free and has legal efficiency, it has not fundamentally solved the problems that residents have received and can not restore the original appearance of their “backyard”. Thirdly, people’s mediation, as a way to solve multi-litigation in Chinese society, is the integration of civil morality and modern law. In the current Shanghai community, people’s mediation is still one of the most important institutions to solve daily disputes among community residents and even to solve problems that are difficult to deal

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with by legal means. According to Durkheim’s urban theory, in an urban community characterized by “organic solidarity”, people rely on complex social division of labor in which they depend on each other to meet their own needs.1 At the same time, because of the different nature of the members in the organic unity society, the lack of common beliefs and images, and the weak social control over individuals, individuals in such a society will naturally have greater freedom. As a result, urban communities with intensified modernization should rely on restorative laws and regulations that satisfy individual consciousness rather than repressive laws and regulations that correspond to the core of collective consciousness. The practical research in this book shows that in the modern community of Shanghai, the legal system is not the only way to restrain people. The collective consciousness in the community has not disappeared but has an increasing trend. This is also the reason why the people’s mediation which combines collective conscience, moral ethics and modern law has a market. People’s mediation plays a role of social integration in Shanghai community and is a means to maintain social order. Fourthly, as a “civil non-enterprise” people’s mediation studio, a state-led multidisciplinary conflict resolution organization in Shanghai community, its establishment, socialized operation and handling of disputes in the community, the way of organic unity and cooperation with government departments and other community NGOs is produced in the face of social conflicts and it is the cooperation of organic unity between the state and the people. Although the studio relies on and is subject to the government, it still has certain independent space and each takes rational action strategies to achieve its own goals. Specifically manifested in: China is still an authoritarian country, the scope of power of government agencies is still very strong, the establishment of social organizations, development model and operation form will be controlled in order to prevent it from challenging or threatening the rule of the party and government. Therefore, the government will make the actions of social organizations under the control of the government through financial support and management control. However, there are conflicts of interest among different institutions. The interests and concerns of the government do not represent the studio completely, and even conflicts of interest exist, especially when the latter is difficult to achieve the target of resolving a certain number of disputes for the government. This relatively “split” relationship makes the studio strive to enhance its independence, expand resources and expand the space for independent development while dealing with conflicts. On the top, the studio provides support and protection for 1 Durkheim witnessed the urban revolution in the nineteenth century and created a dualistic analysis

model of the opposite type. He believes that there are two forms of social solidarity: mechanical solidarity and organic solidarity. The former refers to the social combination of beliefs, customs and image etiquette based on similarity or commonality. It is mechanical, mainly because during the intervening period (whether living in families, tribes, clans or small villages and towns), the important aspects of life are almost the same, and they unconsciously combine with each other. As for the latter, it is a social combination of individual interdependence. It is a kind of social order based on the difference between people. Contemporary society (especially urban society) is the representative of this kind of connection type.

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the existing order; on the bottom, it jointly makes up and integrates the community with other community organizations. However, mediation agencies such as studios, which rely on government funding, do not support community movements, nor do they fight for freedom of speech or expansion of rights for residents. Therefore, they do not have the idea of promoting the development of civil society subjectively. The purpose of the studio is only to reduce the government’s intervention in its actions and better solve community conflicts. As Lin Yue said, we should step by step contribute to the maintenance of social harmony and stability. This examination of the relationship between the state and social organizations can deepen our understanding of the changes in the relationship between urban social institutions in China. Fifthly, this book analyses the conflicts of different national forms and levels under the leadership of the state into two-dimensional and five models of conflict management of Blake and Mouton and concludes that the more authoritarian the country is, the more it tends to use coercive means, and the more it stresses the solution of things through repression, the more it ignores people’s feelings; the more democratic countries pay attention to people’s satisfaction with conflict management, not only to eliminate conflicts but also to pacify and solve problems. In China’s state-led society, different levels of group conflict have different ways of dealing with. The collective conflict can be divided into serious, moderate and general according to the degree of violence, the number of participants and the relationship between the conflict and the government. Serious conflicts will cause social instability and threaten the rule of the state. Mediation agencies often use coercive means to stop the serious incidents. The government will pay close attention to and intervene in the incident, and even use the army, armed police and public security. But this is the way that the government uses cautiously and the final solution may be to enforce the judgment through legal means. When moderate or serious conflicts gradually ease, the degree of government involvement will be reduced or not involved at all. Instead, it will be handled through people’s mediation agencies or social organizations, paying more attention to people’s emotions and feelings, and adopting compromise and equal means to deal with and solve them. For general conflicts, the participation and involvement of the government is less, and they are basically handled by pluralistic people’s mediation agencies and social organizations. In dealing with conflicts, attention is also paid to the solution of events and people’s feelings, and the way of “problem solving” and “compromise” is often adopted. Sixthly, the emergence of conflicts and their handling also reflect the gradual weakening of China’s state control during the period of social transformation. In the pre-transition society, the political and administrative organizational systems are highly overlapping. The power of administrative organizations has become the ultimate determinant of all kinds of important social relations and social resources, and also the intermediary of the interaction of various social factors. The economic and cultural spheres serve the political sphere, and all social activities are measured by political progress and social stability. All kinds of organizations are under the control of the state. The intermediary organizations in real life also have strong attributes of state institutions. Social forces are very weak, and the state controls the operation of

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the whole society. The state and society take on the form of “strong country–weak society” (Luo 1995; Xiang and Tian 2003). At present, in the period of social transformation oriented by social development, although the government is still in the leading position and still has control over the society, it has allowed the existence of new social roles, social organizations and interactive relations. This is also because the emergence of a large number of social organizations in social development has impacted and destroyed the original political system and the way of resource allocation, to a large extent, making the state and society appear a trend of separation. The limited capacity of the state cannot cope with and solve all social contradictions. It needs the participation of social organizations and the state institutions withdraw from some social areas that should not be managed. The social structure has gradually changed from “strong state-weak society” to “state-dominated-pluralistic society”. Seventh, the positive function of group disputes cannot be ignored in the study of this book. Although disputes in Shanghai communities are accompanied by contradictions among all parties and even lead to extreme antagonism due to the use of violence, conflicts play a positive role in enhancing community solidarity and promoting community integration. At the same time, through the long-term struggle of community residents for the public interest, the public space of the community appears and expands. Residents are more willing to participate in public affairs and make their own contribution, and the “free-rider” behavior of community public affairs is greatly reduced. The mutual communication and cooperation between residents in solving problems has improved the social capital of the community and expanded the network of community relations among residents. In addition, there are many “civil elites” who have strong abilities. After becoming “petition representatives” and “resident representatives of mediation meetings” in the process of disputes, they are more responsible for maintaining community harmony and contributing to public affairs. In addition, due to the long-term existence of community collective disputes and the continuous struggle of residents, the government must face problems and make corresponding countermeasures to solve disputes, thus advocating and vigorously developing diversified social organizations to solve community conflicts. When these social organizations act as bridges and “safety valves” between the government and the people, they also objectively get more room for development, and constantly enhance their independence and operational strength in the interaction with the government. This is of great significance to the development and progress of China’s civil society. The above is the main conclusion of the research on Shanghai urban community dispute resolution. Through the study of the settlement of collective disputes in Shanghai community and its impact on the relationship between the state and society, this book achieves the objectives of the study in the following aspects: Firstly, the interaction between state and social organizations is studied from the perspective of social conflict, which opens up a new entry point and perspective for the study of state social relations. Sociology’s exploration of the relationship between the state and society has long been dominated by the national and social lines, ranging from a state-centred society emphasizing the security, benefit integration and welfare

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provision of the state to a society-centred society advocating social autonomy and autonomy and self-governance. All of which pay attention to one pole of the state or society while ignoring the position and role of the other pole. Later, although the paradigm of “state-in-society” appeared, the study of statein-society and the situation of China by Chinese scholars mainly focused on the changes of social structure (the changes of civil society organizations, NGOs, etc.) and society. The change of the relationship between the state and society can be seen from the perspective of interaction between the organization and the government but the relationship between the two is seldom studied from the theoretical perspective of social conflict. Faced with the increasingly prominent social conflicts in China’s cities in the transitional period, the combination of the theory of social conflict and the interaction between the state and social organizations will be of great benefit to the development of these two important fields of sociology. On the one hand, the classical theory and development of social conflict have a high degree of reference and applicability for the analysis of deep-seated conflicts in current Chinese society. On the other hand, the characteristics of the current collective social conflicts and the process of their handling and solving reflect the changes of the control and interaction of social organizations in response to the current goal of solving social conflicts and building a harmonious society. The book also shows in the analysis of three cases of community disputes in Chap. 5 that the responsibilities of “petition agency” of diversified social organizations indicate that while the state has limited control over social organizations, it has gradually begun to empower social organizations, not to interfere too much in the handling of general social conflicts, and to give them certain space and some independent development. Therefore, the explanation of state-led social pluralism proposed in this book can better describe and show the Chinese government’s attitude towards the establishment and operation of social organizations as well as the development trend of social organizations. Secondly, it combines Blake’s and Mouton’s double concern theory and five conflict management models with the conflict of Chinese social groups and improves the original model on the basis of its application so as to make it more suitable for interpreting the characteristics of conflict management in Chinese society. Blake and Mouton’s five conflict management models establish five ways to deal with conflicts between the two dimensions of concern for people and concerns, namely, coercion, avoidance, pacification, compromise and problem handling. This chapter, through the study of specific conflicts in Shanghai residential areas, proposes that there will be differences in the ways of dealing with conflicts at different levels. When using this model to analyze how conflicts are handled, it is necessary to distinguish between different types and levels of conflicts. There are also different understandings of each specific approach in Chinese urban communities. “Compulsory” can also be divided into “explicit” (repression, coercion) and “implicit” (warning, threat), “avoidance” may also be replaced by indefinite delay. And in the specific Chinese culture, the way of litigation is often regarded as a compulsory solution, which must not be adopted.

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Therefore, the revision and adjustment of the original model can be better applied to explain the handling and resolution of social conflicts in China, which is a great theoretical progress. Thirdly, on the practical level, through the study of the conflict in Shanghai community, we can better show the current situation of community conflict and more clearly understand the crux of China’s current social problems. Although it is difficult to cover all the problems and explain all the phenomena by only one study and several cases, at least we can give a statement about the change of the relationship between the state and social organizations in China’s urban areas, provide suggestions for better cooperation between the state and social organizations at the level of community governance to resolve disputes and contradictions, and provide other studies. People pay attention to the change of the relationship between social conflict, state and social organization. The case analysis of this book also emphasizes the positive function of social conflicts. It holds that disputes and the process of resolving disputes to a large extent can change the traditional negative attitudes towards conflicts and realize their positive effects on social development and the growth and promotion of Chinese civil society. The establishment of diversified mediation organizations also opens a window for the government to expand the independent space of social organizations, which is conducive to more NGOs to participate in the settlement of community disputes in the future. This can greatly promote the development and maturity of NGOs. In addition, this book also provides experience and reference for other regional governments on how to transform their functions to cope with the current social situation and resolve contradictions in order to better build a harmonious community. In order to make the “harmonious society” work, we must face up to and really solve all kinds of social conflicts. Of course, as a preliminary study of urban community disputes and their resolution in China, especially when the research theory is not mature enough and a small sample of research cases, this book inevitably has some limitations and shortcomings. Correctly recognizing the existing problems of the research will contribute to the development and promotion of further research in the future, and also provide a reference and analysis framework for related research. Firstly, the representativeness of case samples. The purpose of this study is to investigate the current situation of disputes in urban communities in China and their handling so as to investigate the changes in the relationship between the state and social organizations. The fifth chapter illustrates that the study selected three cases in Shanghai community, which can not be denied that the sample has regional limitations. Although Shanghai is a relatively developed region in China’s politics, economy and culture, it cannot represent the situation of other cities in vast China, whether it is the conflict characteristics of the community or the pipeline for dealing with and resolving it. At the same time, the operation of “Lin Yue People’s Mediation Studio” in J Street is not enough to represent the situation of other communities in Shanghai. This is a major defect and weakness of qualitative research, but at the same time, it is also found that it is difficult to understand the real situation and the underlying mechanism

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of such group disputes in a quantitative way. If we want to extend the conclusion of this study to other cities in the country, it is beyond the scope of this study. Yet the civil non-enterprise mediation institutions in J Street of N District, which are characterized by government purchasing services, have been partly replicated and popularized in Shanghai and proved to be very effective in solving community contradictions. Due to the different regional differences and local conditions, it is necessary to further study, analyze and demonstrate with a larger sample in the future. Second, measure the validity of the model. When Blake and Mouton’s conflict management model is used to analyze the situation of Shanghai community collective conflict management, although there are five main ways from the two dimensions of focusing on people and things in dealing with conflicts in practice, many times they mix different ways or adopt different ways in the face of different situations. Reality is more flexible and changeable and it is difficult to fully encompass the framework of this analysis. In the model, the meanings of each approach will change in specific situations and different people may have different understandings of one approach. In different practical situations, the same way of dealing with the dimensionality of their concerns will also be different. In addition, it is difficult to measure the residents’ evaluation of the results of different dispute settlement methods when the model is combined with different levels of conflict situations. Because the parties to the conflict have different views on the issue, the residents think that the bad way may be the best way to solve the problem in the eyes of the studio or the government. Of course, this also involves the complex reasons behind the formation of specific conflicts and it is difficult to solve them only in one way. Because of the influence of China’s system and legal system, even if mediation has a certain result, there is no root cause to solve the problem fundamentally and it is difficult to make the community residents have a truly satisfactory result. Therefore, Blake and Mouton’s model is not necessarily the best model to explain how to deal with community group conflicts and it needs to be further explored to better explain ways and means. Third, the limitations of research methods. This study combines quantitative questionnaires with qualitative open-ended interviews and participatory observation. However, due to the official restrictions in quantitative research, it is difficult to conduct in-depth investigation on sensitive issues, so more emphasis is laid on the flexible and free qualitative research to carry out in-depth, but there are still many shortcomings. On the one hand, although qualitative research can provide a thorough and detailed understanding of the situation, it is difficult to observe and analyze more cases due to the limited time and energy of researchers. As a result, the sample is not representative enough and lacks sufficient persuasion to explain the current situation and characteristics of dispute settlement in other urban communities in China. Moreover, this book only focuses on the case study of collective interest disputes and has not paid attention to the resolution of identity and ideology disputes. Although the most frequent contradictions in the community are related to interests, it is not excluded that the nature of other different types of disputes will greatly affect their handling methods and results, which needs more in-depth and extensive observation

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and research. On the other hand, due to the sensitivity of the subject of this study, data acquisition and public use are also relatively limited, which is also a major difficulty encountered in the study. This book has treated all personal information and names involved in the case as confidential, but some official data are difficult to disclose without consent, which leads to the lack of strong evidence to confirm some interviews. In order to remedy the shortcomings of the research methods, the book tries to show the residents’ real ideas through informal interviews, and verify the statements by various parties, trying to show the most real events and information.

2 Suggestion: The Necessity of Diversified Dispute Resolution Mechanism Based on the experience and limitations of this study, there are several aspects of future research on social disputes or the relationship between the state and society. First, the relationship between the state and society. There are three perspectives to study the relationship between the state and society: state-centered, society-centered, and the interaction between the state and society. The theory of the relationship between state and society in China is based on a relatively independent state and society to some extent. The discussion of this relationship can be carried out not only through social disputes but also from other perspectives. With the change of China’s national conditions and the improvement of its political and judicial system, the relationship between the state and society will change accordingly. For example, Lin Yue People’s’s Mediation Studio, the representative of the mediation organization in this book’s case, the change of the state’ss attitude towards its operation and the emergence of other new forms of mediation organizations are all good materials and starting points for the study of this topic. In addition, even from the perspective of solving social disputes, future research can focus on the analysis of community residents’participation in disputes and differences, as well as their views and feedback on different ways of settling disputes. This is an extremely important research perspective and focus for the study of the future development of urban civil society in China. Secondly, the result of dealing with different types of conflicts. This book focuses on the treatment of group disputes and their impact because such disputes are the most likely to cause large-scale social conflicts and the disputes that cause tremendous pressure on the government. Due to the limitation of research time and effort, this study did not consider the impact of identity conflict and attitude conflict in society. In reality, with the development of urban economy and culture in China, people’s pursuit of social participation, democratic rights and personal beliefs is becoming stronger and stronger. The differences in ideology and social identity also lead to social conflicts. Its correlation or influencing factors may be the focus of future research.

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Thirdly, the comparative study of different regions and models. This book focuses on the study of collective disputes in urban communities, but there are so many people in China and social conflicts in different regions (urban or rural) vary greatly. Whether the “Lin Yue People’s Mediation Workshop” can be applied to other areas of Shanghai or other vast areas of China? Is it possible that there are various phenomena such as poor cohesion, confusion of procedures and so on? Is there any other better community conflict resolution model? Therefore, within the scope of Chinese cities, the comparative study of disputes between cities can be carried out. This is also a research project that researchers hope to carry out in the future. In addition, in other areas of China, such as the “Shaanxi-Gansu-Ningxia Border Region” in the west, people’s mediation is also the main way to solve social conflicts. It combines government mediation, social mediation with the participation of various social groups, and out-of-court mediation in the judicial field (i.e., judicial organs as the leading factor, a mediation conducted jointly by judicial personnel and the masses). Forms of mediation) and so on, forming a people’s mediation mode with border characteristics (Zhang 2010). Another example is that Guang’an City of Sichuan Province, by connecting people’s mediation with letters and visits, submits the questions to the Letters and Visits Bureau (Office) for accepting applications for petitions, and considers that it meets the conditions handled by the People’s Mediation Committee, i.e. entrusts them to the local people’s mediation committee or the people’s mediation committee in the place where disputes occur. This simple connection method can actively divert disputes appropriately, which is conducive to cost savings and the thorough settlement of disputes. At the same time, Guang’an has formed the “Guang’an Model” of people’s mediation with the Federation System of People’s Mediation Committees as the core, which reflects the structural impact of institutional change and social transformation on institutional change in the interactive relationship between government promotion and social autonomy. The Guang’an grand mediation system takes the federation of people’s mediation committees of cities and counties (cities and districts) as the leading body, the people’s mediation committees of cities and counties (cities and districts) as the leading body, the people’s mediation committees of towns and villages as the basis, and the professional and industrial mediation committees as the supplementary network of cities, counties, townships, villages and groups. It has achieved effective convergence and benign interaction of various dispute resolution mechanisms, contributed to the peaceful settlement of disputes, and enhanced the legitimacy of the state in power (Hu and Zeng 2015; Zeng 2013). The current situation of disputes in these areas and the mechanism of resolving disputes can be compared with the research in this book. Finally, through the whole study, it is found that the diversified dispute resolution mechanism is an ideal choice to break the dilemma of litigation and non-litigation dispute resolution (Hu and Zheng 2016). In China’s current political system and judicial situation, relying entirely on litigation and mediation cannot resolve disputes quickly and effectively. Encouraging social organizations to participate in dispute resolution and social governance can reduce the burden of the government to a large extent, increase various ways to solve social contradictions and contribute

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to the further development of harmonious community construction. Through the actual investigation and the investigation of the current situation of urban community conflict, this book puts forward the following suggestions: Firstly, diversified dispute resolution mechanism needs the relationship between relatively independent state and society, especially expanding the autonomous space and independent operation ability of social organizations. At present, although the Chinese government is transforming its functions and beginning to decentralize its power to social organizations, due to the imperfection of policies and laws, the autonomy of social organizations is still restricted to a large extent by the state and cannot give full play to its function of social management. In order to truly realize the mutual assistance and cooperation between the state and society in the field of social governance, the state should give the society more power to operate independently, and realize and protect the autonomy of social organizations through the fairness of the law. Especially, we should avoid excessive interference of the government, especially the individual chief executive with power, in dealing with social problems, and give full play to the role of social organizations in realizing social governance and participating in social construction. Secondly, the diversified dispute resolution mechanism needs to be guaranteed by a more perfect judicial system. At present, social organizations in Shanghai communities can carry out people’s mediation with legal effect, and the advantage is that the government purchases services free of charge to provide mediation for residents. Yet the operation and judgment of mediation organizations also need stricter legal protection, and the supervision of the state, society and the public so as to establish an effective and benign two-way communication mechanism. This is an important guarantee for the realization of benign cooperation between the state and society. It is not only conducive to effectively prevent the failure and problems of mediation mechanism but also plays a very good and stable role in the formation of a relatively independent state and society as a basic link. At the same time, we need to further broaden the channels of dialogue between society and the state and strengthen the supervision role of social media and public opinion outside the mediation meeting in order to achieve the smooth flow of information between the state and society and the restriction of each other’s behavior. This can be more conducive to the diversion and resolution of disputes and urge issues to be valued and resolved quickly. In addition, we should cultivate citizens’ sense of self-determination and community belonging, encourage them to consciously use proper means to deal with contradictions, and legitimately express their ideas on how to deal with problems so as to effectively resolve community conflicts and maintain community stability and harmony. Thirdly, diversified dispute resolution mechanism helps to improve the legal system of people’s mediation and bring people’s mediation into a standardized legal track. This refers to the limitation of the powers of mediation of social organizations. First of all, we should stipulate the invalidity of mediation if it overrides authority in order to ensure the limitation of mediation power. The second is to expand the scope of people’s mediation organizations. As long as the organizations registered

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according to the regulations of social organization management carry out the mediation of civil disputes over personal rights, property rights and other disputes over ownership and interests according to law. It can also include administrative disputes and different types of community conflicts among members of each unit within the specific administrative affiliation. Finally, mediation agreements must not violate the prohibitive provisions of the law, nor harm the interests of the state, the public interest and the legitimate interests of others. Social organizations should follow the principles of voluntariness (emphasizing that administrative mediation does not have to go through pre-procedure), legality, avoidance (that is, administrative personnel who have an interest in disputes may not participate in mediation) and primary mediation. Fourthly, strengthen and promote the diversified development of social organizations. Current social organizations depend on the support and assistance of government departments for their establishment, operation and development. To manage and solve social affairs more independently and effectively, more citizens need to be encouraged to participate actively and actively in social management. Social organizations should use their own abilities to enhance their own funds, social network relations and the ability to solve social problems in addition to assisting the government in social management and providing public services. At the same time, we should also pay attention to the cultivation and application of community elites and capable people, give full play to their leadership and management capabilities, which is conducive to the growth and development of social organizations themselves. The above suggestions are also based on the theoretical and practical investigation of the whole study. Although many aspects are only ideal or imagination at present, they cannot be realized in a short period of time and still need a certain period of political development and institutional improvement. But at least this is the direction to solve the social conflicts in China so that we can really achieve the construction of a harmonious society.

3 Dispute Resolution from Government-Led to Social Autonomy China’s urban community construction cannot be separated from the government’s administration. Local governments and administrative departments also play a key role in the process of community construction and development. Managing social public affairs and solving social public problems are one of the most basic functions of the government, and urban grassroots communities are the most basic areas in which public problems arise and public affairs are solved. Yet the practice of governmentled social governance is still highly dependent on community autonomy, because government-led is inseparable from community residents, community organizations and NGOs. The self-governing organization composed of the residents of the urban communities has become an important force for the grassroots governments to build communities and the cornerstone of social management by grassroots political power.

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Although China has a tradition of mass participation in community governance, but more inclined to administrative-led participation, that is, under the leadership of the CCP and government to mobilize the masses to carry out community governance and related activities, which has a strong elite-led tradition. However, under the goal of promoting diversified social organizations and sustainable development, excessive government (or power elite) participation in community governance is obviously contrary to the spirit of autonomy and the effect of autonomous development. Especially in order to achieve the goal of “small government and big society”, it is necessary to enhance the initiative and independence of social organizations to participate in community affairs. This is not to deny the leading role of the government in community construction, but to emphasize that the government should play its leading role correctly and advocate, mobilize, support, supervise and promote more economic policies conducive to community development rather than intervene in the process of community governance through administrative power. If the government is not offside, social organizations can play their due role more actively within the allowable scope, reduce the traditional habits of community residents relying on the government for a long time, and transfer more responsibilities to enterprises and social organizations. It can greatly reduce the government’s tedious tasks in daily social affairs and enhance the government’s ability to guide social organizations. Previous researchers believed that social capital and local government were the core factors affecting grassroots governance (Braathen and May 2004: 4), especially local government had a direct impact on grassroots governance. The results of this study also confirm the influence of local governments on grassroots governance in Shanghai. Some scholars have shown that among the four forces influencing urban politics, the central government, the grassroots government, the market and the community people, the grassroots government is the most important one (Zhang 2002: 495). Indeed, in Shanghai’s urban community governance, the advocacy and promotion of the diversified dispute resolution model and the first attempt to operate the people’s mediation studio with government purchasing services is not only supported by the efforts of the community elites, more importantly, it gets the full support from the local government. The N District Judicial Bureau and the relevant civil affairs bureau and other administrative departments cooperate highly with the studio to resolve various disputes so that they can settle problems more effectively in practice. The more cooperation and exchanges between grassroots governments and mediation organizations, the stronger mutual trust between governments and mediation organizations will be triggered by a virtuous circle (Gittel and Vidal 1998: 15). People living in Shanghai communities are very familiar with each other through longterm communication, so there is a strong network of relationships and emotional exchanges between neighborhoods. In view of the collective disputes in the community, the residents themselves have already existed as a specific group. They fight and complain together for their damaged interests. Therefore, when Lin Yue, who has a good understanding of the community and is familiar with and trusted by the community residents, appears, her influence at the grassroots level is very helpful to resolve the long-standing disputes. But at the same time, the disputes in grassroots

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communities are largely influenced by national laws and policies. Through formal systems such as policies and laws, the state and grassroots governments determine the basic framework of community politics, which deeply shapes and influences people’s cognition and community action (Bourdieu and Wacqiant 1992). From the “blockhouse” case, we can also see that the emergence of illegal buildings itself is the reflection of community behavior after the alliance between neighborhood power and local government. The construction of illegal buildings and the subsequent acquisition of legal real estate certificates and related legal certificates originate from the lack of relevant national systems and the weak supervision. As a result, community residents have to participate in the protest of interests through informal channels and lead to disputes. Therefore, in order to eradicate the emergence and intensification of social disputes, in a deeper level, the state needs to comprehensively influence the awareness and action of public officials and the public through legislation, propaganda, supervision and education, including the awareness of rights and legal boundaries. Therefore, the state is still the key factor in community governance and the dominant force in community political field and community power structure. The main source of community power is still state authority (Shi 2013: 240). From the current situation of urban community governance in China in recent years, community governance and dispute resolution have entered a rational state, and the relationship between the government and the citizens has changed from full control and oppression by the original government to negotiation, dialogue and cooperation and participation. While local governments develop local economy and safeguard their own interests, if they infringe upon the interests of the residents of grassroots communities, community politics will obviously show “exclusiveness” and “hostility”. Particularly, community residents’ interference to local governments because of their interests impairing their living environment, affecting their living facilities and hindering their normal life will show a tendency to change their collective action from informal participation to formal participation, while maintaining stability and resolving social disputes for grassroots governments. In terms of standards, it is very important to effectively prevent such problems, strictly carry out community construction in accordance with the law and restrain their own behavior in order to enhance the trust of community residents, the legitimacy of local government and the support of local officials. Only by preventing the emergence of antagonistic emotions and conflicts from the source can we avoid the threat to social stability and the crisis of social governance caused by the state’s intervention in communities and the intensification of disputes over a long period of time. In the future, community governance should still take guiding and encouraging community autonomy as its development direction. This kind of autonomy not only exerts the strength of social organizations and residents in resolving social disputes, but also plays an important role in the autonomy of public affairs in a wide range. This kind of autonomy is not only a result and goal but also a process. To encourage social autonomy and enhance the participation of social organizations in the management of social affairs, first of all, grassroots governments need to show their sincerity to allow citizens to

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participate and have the freedom to express their different opinions. At the same time, the government can design different ways of participation for different groups of citizens and reduce their disputes and social exclusion. Accordingly, the way of participation should give the vulnerable groups who are still marginalized the right to speak and express. The most important thing is that public proposals can be adopted to a certain extent and play a certain role. As far as the current situation of community governance in China is concerned, the ability of community autonomy is relatively weak, and the ability of residents’ organization and participation needs to be further strengthened and improved in the state-led environment. First of all, they should not only passively support the authority of the incumbent but also actively participate in various public affairs, with critical and thoughtful minds, and can reasonably and enthusiastically participate in the disputes in their lives (Cai 2006: 109). The cultivation of people with higher autonomy requires a community with interpersonal trust, norms of equal exchange and network participation of members (Putnam 1993). Because the development direction of modern community is non-nationalization, that is, it is no longer the level of national administration but a part of civil society separated from national administration (Tong 1997). The formation and development of this kind of citizen community must depend on the continuous communication between the members of the community, cultivate mutual trust and common consciousness, so as to integrate the strength of the community and create public goods. To promote the transformation from traditional community to citizen community, one of the important factors is the formation of community public space, giving residents a field to fully express their different opinions, discuss and participate in public affairs and exercise the platform of residents’ autonomy. At the same time, it also provides a buffer zone against the unfair interference of the state in personal life (He 2007: 241). Therefore, in the future community governance and diversified dispute resolution work, the more important thing for local governments is to pay attention to the benign interaction between multi-subjects, play a guiding and supporting role for the establishment of community public space, and finally form a cooperative and cogovernance model that the government and society work together to create stable, orderly and effective governance. Whether social forces can play a role in social governance depends not only on the recognition and support of the government but also on whether social forces bear the rights entrusted by the state and the responsibility and ability to participate in governance. This will become an important goal for the future government to cultivate social organizations, that is, to enhance the selfmanagement ability of social organizations, expand social organizations and create public space, which is an important link in the modernization of social governance system under the leadership of the government. By strengthening the supervision and management of social organizations, focusing on “government decentralization” and “social autonomy”, the government can give full play to the ability of communities and various social forces to provide public services and public goods, and truly play the role of social organizations as a bridge between the government and society, between the government and individuals, between the masses and enterprises.

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Conclusion

The Decision of the Central Committee of the CCP on Several Major Issues Concerning the Comprehensive Promotion of Ruling the Country by Law, adopted at the Fourth Plenary Session of the Eighteenth Central Committee, points out that the mechanism of safeguarding rights and resolving disputes according to law should be improved. The Decision of the Central Committee of the CCP on Several Issues Concerning the Comprehensive Deepening of Reform adopted at the Third Plenary Session of the Eighteenth Central Committee also clearly points out that the overall goal of the comprehensive deepening of reform is to improve and develop the socialist system with Chinese characteristics and to promote the modernization of the state governance system and governance capacity. This fully reflects the CCP’s grasp of the law of the country’s political and social development. In view of various social disputes arising from the diversification of interests and needs of all social strata since the reform and opening-up, how to mobilize various social forces to resolve disputes and maintain social harmony and stability is an important issue facing the modernization of national governance system and governance capacity. Improving the mechanism of resolving social conflicts and disputes and settling social problems at the grassroots level are the important contents of comprehensively promoting the rule of law and maintaining social stability. Social forces’ participation in resolving disputes is consistent with the goal of achieving social harmony and stability and building a country ruled by law. Encouraging social organizations to participate in mediation is an urgent need for governing the country by law. Because a society ruled by law is an orderly and rule-based society, different ways and means are needed to solve social conflicts. This is also the significance of encouraging and advocating diversified dispute resolution mechanisms, that is, encouraging a variety of dispute resolution methods to coordinate and coexist with each other with their specific functions and characteristics, forming a complementary procedural system and dynamic adjustment system to meet the diverse needs of social subjects. Because of the extensive and complex nature of disputes, no single mode can effectively solve all social conflicts.

© Shanghai People’s Publishing House 2020 J. Hu, Disputes Resolution in Urban Communities in Contemporary China, https://doi.org/10.1007/978-981-15-8644-6

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Conclusion

In the long-term practice, China has established dispute settlement systems such as mediation, arbitration, administrative award, administrative reconsideration, litigation and so on. In accordance with the requirements of the Decision of the Fourth Plenary Session of the Central Committee, the actual needs of resolving disputes under the new situation requests the improvement of the dispute resolution systems, and establishing the diversified dispute resolution mechanisms with smooth operation, organic cohesion and mutual coordination of different dispute resolution systems. That is to encourage a variety of dispute resolution methods to coordinate and coexist with each other with their specific functions and characteristics, forming a complementary procedural system and dynamic adjustment system to meet the diverse needs of social subjects. In particular, in the future research and practice of dispute resolution, more attention should be paid to the establishment and improvement of the organic cohesion and coordination mechanism of various dispute resolution systems. Mediation, arbitration, administrative adjudication, administrative reconsideration, litigation and other dispute resolution systems have their own characteristics and advantages, and play a unique role in resolving contradictions and disputes. If they can be organically linked up and coordinated to form a network of social disputes resolution and work together, then the diversified dispute resolution mechanism will be an omnidirectional, whole-process and whole-society mechanism. Playing the role of this mechanism can not only alleviate the working pressure of the people’s courts and the government, divert some cases for the people’s courts, and alleviate the worries of the government; more importantly, it can give full play to the consciousness and initiative of the social subjects and parties, and provide the public with more alternative dispute resolution methods or schemes to meet different needs. Demand and value orientation and reducing and resolving social conflicts, reducing the cost of social management, ensuring the stability of social order, and truly making harmonious communities work!

Appendix A

An Outline of Interview on Community Conflict Survey in Shanghai

2008 1. Interview with Community Residents (1) What departments will you seek to resolve the collective disputes encountered or participated in daily? Please evaluation of treatment results. (2) Attitude and evaluation of Lin Yue People’s Mediation Studio. (3) Experiences and ideas of participating in group disputes and petitions (including causes, processes, mediators dealing with disputes, parties involved, results and assessments). (4) Participation in the performance and ideas of the people’s mediation meetings held by the studio, and self-opinions on how to solve contradictions. (5) Evaluate the daily conflict management of the government, streets and neighborhood committees. (6) Self-awareness and suggestions on building up harmonious community. 2. Interviews with relevant government departments (civil affairs, justice, letters and visits office), streets and RCs (1)

(2) (3) (4) (5)

The basic situation of the community: the resident population, the overall situation of the residents (population composition, age distribution, living standards), community history, economic level, etc. The situation of daily contradictions in the community, which institutions and individuals are involved in resolving disputes? The development and organizational change of people’s mediation in Shanghai and N districts. What are the advantages of people’s mediation over court proceedings? Why do residents prefer to resolve conflicts through mediation? What is the relationship between the Lin Yue People’s Mediation Studio and the streets, the RCs and the civil affairs departments? What role

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does today’s RC play in resolving disputes? What is the ability to handle disputes? (6) How did the studio come into being? (Including the causes, background and development process). (7) Why did the studio choose to set up in the way of “government purchasing services”? Why use the form of “civil non-enterprise”? Why is it named after a person? (8) What is the attitude and evaluation of the community residents towards the studio? (9) The origin of community group disputes and the process of solving them. How do streets and studios deal with these disputes? (10) What is the ideal mode of community dispute settlement? The development direction and goals of conflict resolution mechanism. 3. Interview with staffs of Lin Yue People’s Mediation Studio (1) The development of the studio, the recruitment requirements of its members and the relevant personal background. (2) The relationship between the studio and various institutions and systems, the difficulties and problems encountered in operation. (3) The source of funds, the degree of autonomy and the initiative of the studio in dealing with disputes. (4) The working scope and operation mode of the studio. (5) To support the view and evaluation of the studio by means of “government purchasing services” on the streets. (6) Where is the important role of the studio in the construction of social harmony in terms of its work objectives, task allocation and system provisions? (7) The causes of group disputes and the process of solving them. How does the studio deal with disputes concretely? What is the relationship with other parts? (8) What are the strategies and skills of the studio in dealing with disputes?

Appendix B

List of Respondents

Respondents

Gender

Age

Personal background

Director W

M

52

Communist Party member, director of J Street Judicial Institute

Director Z

M

55

Communist Party member, director of J Street

Mr. L

M

50

Communist Party member, Chief of Publicity Section

Community residents participating in violent conflict in Qingfeng community Mr. Xu

M

38

Homeowner of Qingfeng Community, injured slightly by the city management in the conflict

Ms. Lin

F

34

Homeowner of Qingfeng Community, experience conflict, witness and participate in the whole event

Mr. Xian

M

35

Homeowner of Qingfeng Community, experience conflict and was beaten and injured by the city management

Mr. L

M

42

N District government officials responsible for coordinating violence in Qingfeng Community

Mr. Shi

M

48

Director of the HC in Qingfeng Community

Community residents participating in the “blockhouse” resistance Aunt C

F

68

Retired, petitioning elites, representatives of the struggle and old residents of the community in the “blockhouse” incident; member of J Street Geriatric Association

Mr. F

M

38

General Manager of N Group, homeowner of the “block house” (continued)

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(continued) Respondents

Gender

Age

Personal background

The Cat’s eye

F

65

Retired, old community residents, one of the petitioners, member of J Street Geriatric Association and community dispute information officer

Party Secretary Y

F

45

Party member, Secretary of B RC of J Street, cooperate with Lin Yue Studio to settle disputes

Elder L

M

72

Party members, community resident, residents’ representatives, participating in mediation meetings

Elder T

M

74

Party members, community resident, residents’ representatives, participating in mediation meetings

Lin Yue

F

71

CCP member, founder of Lin Yue People’s Studio, legal representative, community veteran cadre, lifelong work in community and RC

Ms. Zhang

M

28

Party member, Professional Mediator of Lin Yue People’s Studio, graduated from East China University of Political Science and Law, specializing in handling disputes between B, N, C and H RCs

Lawyer from the court Ms. M

F

28

Participate in mediation meetings, analyze the case from a legal point of view, give legal guidance to community residents

Elder Yang

M

50

Party member, community elite and petitioner’s representative, resident representative of mediation meeting

Elder Zhang

M

70

Party member, community elite and petitioner’s representative, resident representative of mediation meeting

Elder Wang

M

70

Party member, community elite and petitioner’s representative, resident representative of mediation meeting

Elder J

M

55

165 Lane community residents, participate in the “blockhouse” incident

Elder M

M

52

165 Lane residents, die-hards, strongly dissatisfied with the results of the treatment of the studio, refused to accept the mediation results and demanded the demolition of the “blockhouse”

Residents participating in the backdoor incident Ms. Lin

F

40

Residents of C community in J Street participated in the struggle against the backdoor incident of “Fumanlou” Hotel (continued)

Appendix B: List of Respondents

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(continued) Respondents

Gender

Age

Personal background

Elder Chen

M

59

Resident representatives in the resistance to the backdoor incident of “Fumanlou” Hotel

Ms. Zhu

M

44

Resident of J Street community, petitioned in the backdoor incident of “Fumanlou” Hotel

Appendix C

People’s Mediation Agreement

No. (2008) No. of Shanghai J Poll. Applicant: XXX, Femaile, born on X(day) X(month) X(year), Han Majority, living in RM 101, DZ Rd., 165 Lane, No. 20, retired from Shanghai N District N Department Store. Tel: 6210XXXX, ID No. 3101051956XXXXXXXX. Respondent: XXX. Male, born on 22 October 1978, Han Majority, living in No. 139, Lane 1384, WH Rd., N District, Shanghai. Working in Shanghai LH Company. Tel.: 207XXXX, ID No. 3101051978XXXXXXXX. Dispute categories: other types of disputes. Dispute description: No. 28 Lane 499, J Road, Shanghai is a property right house with Mr. F as its owner. F and XXX are neighborhood relations. Since October 2007, F has carried out interior and exterior renovation of the house. Because of the inconvenience caused by noise, dust and garbage during the renovation period, and certain requirements for the company’s vehicles to enter and exit, J Street Regulating Committee came to apply for mediation. The following agreements have been reached between the two parties through mediation: 1. The right to use No. 28, 499 Lane, J Road, under the name of F will be used as office buildings and staff dormitories in accordance with relevant policies. 2. F apologizes for the inconvenience caused by noise, dust and garbage during the decoration period, and agrees to subsidize RMB 2000 per household. 3. F pays cash to the residents at the same time of their signing the agreement. 4. Vehicles at No. 28 Lane 499, J Road shall not honk at will to ensure the safety of the lives of the surrounding residents and the order of the community environment. 5. The two sides have no other dispute over the dispute. This agreement is in triplicate. The applicant and the respondent shall hold one copy each from the J Street Commission of N District. Applicant (Signature or Seal) Respondent (Signature or Seal) Mediation Committee of N District J Street Date © Shanghai People’s Publishing House 2020 J. Hu, Disputes Resolution in Urban Communities in Contemporary China, https://doi.org/10.1007/978-981-15-8644-6

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Appendix D

Measures for Administration of Government Purchasing Services (Interim)

Financial Comprehensive [2014] No. 96.

Chapter I: General Provisions Article 1: In order to further transform the functions of the government, promote and standardize government purchasing services and better play the decisive role of the market in the allocation of resources, in accordance with the Budget Law of the People’s Republic of China, the Government Procurement Law of the People’s Republic of China and the Decision of the Central Committee of the Communist Party of China on Several Major Issues Concerning the Comprehensive Deepening of Reform, These Measures are formulated in accordance with the relevant requirements and provisions of the Guiding Opinions of the General Office of the State Council on the Government’s Purchase of Services from Social Forces (No. 96, 2013 issued by the State Office). Article 2: The term “government purchasing services” as mentioned in these Measures refers to transferring part of the public service items directly provided by the government and the service items required by the government for performing its duties to the qualified social forces and institutions in accordance with certain methods and procedures, and being undertaken by the government according to the contract agreement. Its payment fee. The scope of government purchasing services should be determined according to the nature of government functions and be in line with the level of economic and social development. If it belongs to transactional management services, competition mechanism should be introduced to provide services through government purchasing. Article 3: The government shall follow the following basic principles in purchasing services:

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(1) Actively, steadily and orderly implementation. Starting from reality, we should accurately grasp the demand for public services, give full play to the leading role of the government, explore various effective ways, increase the support of social organizations to undertake government purchasing services, enhance the ability of social organizations to participate in government purchasing public services on an equal footing, and guide social forces to participate in service supply in an orderly manner so as to form a society. Improve the joint efforts of public services. (2) Scientific arrangements, focusing on practical results. Highlighting the public nature and public welfare, focusing on and prioritizing areas and projects that are closely related to improving people’s livelihood, conducive to the transformation of government functions, clarifying rights and obligations, and effectively improving the efficiency of the use of financial funds. (3) Openly select the best and fix the fee on the matter. In accordance with the principles of openness, fairness and fairness, we should stick to the principle that fees should be transferred according to the circumstances, determine the main body of government purchasing services through fair competition, and establish a dynamic adjustment mechanism for the survival of the fittest. (4) Reform and innovation, and improve the mechanism. Insisting on linking up with the reform of public institutions and social organizations, promoting the separation of government affairs, politics and society, and relaxing market access, all that society can do well will be entrusted to the social forces, and constantly improving the system and mechanism.

Chapter II: Subjects of Purchase and Acceptance Article 4: The main body of government purchasing services (hereinafter referred to as the purchasing body) is the administrative organs at all levels and institutions with administrative functions. Article 5: The public services and performance services provided to the society by Party organs, groups that are included in the administration of Administrative Establishment and whose funds are financially burdened may be purchased in accordance with the provisions of these Measures in accordance with actual needs. Article 6: Subjects undertaking government purchasing services (hereinafter referred to as undertakers) include social organizations registered with the registration administration department or exempted from registration with the approval of the State Council, institutions classified as public welfare or transformed into enterprises, enterprises and institutions registered and established by the competent departments of industry and commerce according to law. Article 7: The undertaking subject shall meet the following conditions:

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(1) It is established according to law and has the ability to independently bear civil liabilities; (2) A sound governance structure and a sound internal management and supervision system; (3) Having an independent and sound financial management, accounting and asset management system; (4) Having the necessary facilities, personnel and professional and technical abilities to provide services; (5) Have a good record of paying taxes and collecting social security funds according to law; (6) There are no major illegal records in the first three years, and they have fulfilled their obligation to publicize annual reports through annual inspection or as required. They are in good credit condition and have not been included in the list of abnormal operations or serious illegal enterprises; (7) It meets the requirements of the State concerning the separation of government affairs, between government and society, and between government and enterprise; (8) The provisions of laws and regulations and other conditions required for purchasing service items. Article 8: The qualifications and specific conditions of the undertaking subject shall be determined by the purchasing subject in accordance with the provisions of Articles 6 and 7 and in accordance with the specific needs of the purchasing service content. Article 9: The purchase of services by the government shall be combined with the reform of public institutions, so as to promote the rationalization and Deadministration of relations between public institutions and competent departments, and promote the transformation of conditional public institutions into enterprises or social organizations. Institutions that undertake government purchases of services should adjust their financial budget safeguards accordingly in accordance with the principle of “fees go with the flow of events”, so as to prevent the occurrence of activities that not only support people through financial allocations, but also purchase services at the same time. Article 10: Purchasers should encourage trade associations and chambers of Commerce to take part in government purchasing services under the principle of fair competition, foster and develop social organizations, enhance their ability to undertake public services, and promote the decoupling of trade associations and chambers of Commerce from administrative agencies. Article 11: The purchasing entity shall guarantee equal competition among all kinds of undertakers, and shall not discriminate against the undertakers under unreasonable conditions.

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Chapter III: Purchase Contents and Guidance Catalogues Article 12: The content of services purchased by the government shall be services that are suitable for market-oriented provision and can be undertaken by social forces. Where new or temporary or phased government services are suitable for social forces to undertake, they shall be purchased in accordance with the way the government purchases services. Services that do not fall within the scope of government functions and which should be provided directly by the government and are not suitable for social forces shall not be purchased from social forces. Article 13: Financial departments at all levels shall be responsible for formulating guidance catalogues for government purchasing services at their respective levels and determining the types, nature and contents of government purchasing services. When formulating a Guideline Catalogue for government purchasing services, the financial department shall fully seek the opinions of relevant departments and make timely dynamic adjustments according to the changes in economic and social development, the transformation of government functions and public needs. Article 14: Except as otherwise provided by laws and regulations, the following services shall be included in the Guideline Catalogue of government purchasing services: (1) Basic public services. Public education, employment, personnel services, social insurance, social assistance, pension services, child welfare services, services for the disabled, preferential care and placement, medical and health, population and family planning, housing security, public culture, public sports, public safety, public transport, agriculture, rural areas and farmers services, environmental governance, cities Municipal maintenance and other areas suitable for social forces to undertake services. (2) Social management services. Community construction, social organization construction and management, social work services, legal aid, poverty alleviation and relief, disaster prevention and relief, people’s mediation, community correction, floating population management, resettlement and education, volunteer service operation management, public welfare propaganda and other areas are suitable for social forces to undertake services. (3) Industry management and coordinated services. Professional qualification and level test management, industry norms, industry complaints and other areas are suitable for social forces to undertake services. (4) Technical services. Scientific research and technology promotion, industry planning, industry survey, industry statistical analysis, inspection and quarantine inspection, monitoring services, accounting and auditing services and other areas suitable for social forces to undertake services. (5) Supplementary matters for the government to perform its duties. Legal Services, Project Research, Policy (Legislation) Research, Drafting and Demonstration, Strategy and Policy Research, Comprehensive Planning, Standard Evaluation Index Development, Social Survey, Conference and Trade Activities and Exhibition Services, Supervision and Inspection, Evaluation, Performance Evaluation,

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Engineering Services, Project Evaluation, Financial Audit, Consulting, Technology Industry Services suitable for social forces in such fields as business training, information construction and management, logistics management, etc. (6) Other services suitable for social forces. Article 15 Services included in the Guiding Catalogue shall be purchased.

Chapter IV: Purchase Ways and Procedures Article 16: Purchasers shall organize and implement government purchasing services in accordance with the principles of flexible mode, simple procedure, open and transparent, orderly competition and evaluation of results, according to the characteristics of supply and demand of purchasing contents and the degree of market development. Article 17: Purchasers shall, in accordance with the relevant provisions of the Government Procurement Law, adopt public bidding, invitation to tender, competitive negotiation and single-source procurement to determine the subject of acceptance. The standards of procurement quota, the amount of public bidding, the auditing of procurement methods, the disclosure of information and the query of complaints related to government procurement services shall be implemented in accordance with the relevant legal system of government procurement. Article 18: After the purchase budget has been issued, the purchaser shall prepare the implementation plan of government procurement according to the requirements of government procurement management and report it to the government procurement supervisory department at the same level for the record to carry out procurement activities. The purchaser shall promptly announce to the society relevant information such as the purchasing content, scale, qualification requirements for the acceptor and relevant materials to be submitted. Article 19: After determining the subject of acceptance in accordance with the prescribed procedures, the purchaser shall sign a contract with the subject of acceptance, and may adopt the forms of purchase, commission, lease, franchise and strategic cooperation in accordance with the characteristics of the demand for service items. The contract shall specify the content, duration, quantity, quality and price of the services purchased, as well as the means of settlement of funds, the rights and obligations of both parties and the liability for breach of contract. Article 20: The purchasing entity shall strengthen the management of the purchasing contract, urge the accepting entity to strictly perform the contract, keep abreast of the progress of the implementation of the purchasing project in a timely manner. Payments shall be made strictly in accordance with the relevant provisions of the treasury centralized payment management and the progress of contract implementation and in accordance with actual needs and contract provisions, the undertaker shall actively help the undertaker to communicate and coordinate with relevant government departments and service objects.

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Article 21: The undertaker shall fulfill his obligation to provide services in accordance with the contract, conscientiously organize and implement the service projects, complete the tasks of the service projects on time, ensure the quantity, quality and effect of the services, take the initiative to accept supervision from relevant departments, service objects and society, and strictly prohibit subcontracting. Article 22: After the acceptor has completed the service items stipulated in the contract, the purchaser shall promptly organize the inspection and acceptance of the performance of the contract, and strengthen the management in accordance with the current financial and financial management system.

Chapter V: Budget and Financial Management Article 23: The funds needed by the government for purchasing services shall be arranged in the existing financial budget as a whole. The purchaser should gradually increase the proportion of government purchasing service funds on the basis of existing financial capital arrangements. Services provided by purchasing mode with funds already arranged in the budget shall be implemented in accordance with relevant provisions; services provided by purchasing mode with funds already arranged in the budget but not yet specified in the budget shall be implemented through government purchasing mode according to the actual situation. Article 24: The purchasing entity shall give full play to the professional advantages of the competent industry departments, industry organizations and professional consultation and evaluation institutions, experts, etc., and reasonably calculate and arrange the expenditure for government purchasing services in the light of the characteristics of the project and related budget, taking into account factors such as prices, wages, taxes and fees. Article 25: When arranging the annual budget preparation, the financial department shall make clear requirements for the budget arrangements related to the purchase of services and formulate a special list of purchase services items in the budget statements. The purchaser shall fill in the form of purchasing service items according to the requirements, and the government purchasing service items listed in the catalogue of centralized purchasing or above the standard of purchasing quota shall be reflected in the government purchasing budget and submitted to the financial department for examination and verification together with the Department budget. Article 26: The institutions responsible for the management of government purchasing services of the financial departments shall examine and verify the forms of government purchasing services submitted by the purchasers. Article 27: The list of purchasing service items after examination and verification by the financial department shall be issued to the relevant purchasing entities together with the approval of the Department budget. The purchaser shall organize and implement the purchasing service according to the list of purchasing service items issued by the financial department.

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Article 28: The acceptor shall establish a government purchasing service account, record relevant documents, work plan, project and fund approval, project progress and fund payment, summary of work report, major activities and other relevant information, and accept and cooperate with relevant departments to supervise and inspect the use of funds and evaluate their performance. Article 29: The undertaker shall establish and improve the financial system, strictly abide by the relevant financial and financial regulations, standardize the financial management and accounting of the project funds for purchasing services, strengthen its own supervision, and ensure the standardized management and use of funds. Article 30: The undertaker shall establish and improve the financial reporting system, and provide the purchaser with materials such as the use of funds, the implementation of projects, and the summary of achievements, as required.

Chapter VI: Performance and Supervision Management Article 31: Financial departments should strengthen cost-benefit analysis and promote the performance evaluation of government purchasing services in accordance with the requirements of establishing the performance management mechanism of the whole process budget. The financial department should promote the establishment of a comprehensive evaluation mechanism consisting of the purchaser, the service object and the professional organization, and promote the third-party evaluation. According to the principle of combining process evaluation with result evaluation, short-term effect evaluation with long-term effect evaluation, social benefit evaluation with economic benefit evaluation, the quantity, quality and fund performance of purchasing service items are evaluated. The evaluation results can be used as an important reference for the selection of the undertaker. Article 32: The relevant departments of Finance and auditing shall strengthen supervision and auditing of government purchasing services, so as to ensure the standardized management and rational use of government purchasing funds for services. Interception, misappropriation and detention of funds and other acts violating the provisions of these Measures shall be investigated for legal responsibility in accordance with the relevant provisions of the Government Procurement Law of the People’s Republic of China and the Regulations on Punishment of Financial Illegal Acts, etc. If a criminal is suspected, it shall be handed over to the judicial organ for treatment according to law. Article 33: Departments in charge of civil affairs, industry and commerce administration and industry shall, in accordance with the division of duties and responsibilities, incorporate the credit records of the undertaker’s undertaking of government purchasing services into the annual inspection (report), evaluation, law enforcement and other regulatory systems, and constantly improve the incentive and punishment mechanism for breach of faith.

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Article 34: The purchaser shall strengthen the construction of service project standard system, scientifically set service demand and target requirements, establish service project pricing system and quality standard system, and reasonably compile normative service standard texts. Article 35: The purchasing entity shall establish a supervision and inspection mechanism, strengthen the supervision over the whole process of government purchasing services, and actively cooperate with relevant departments to incorporate the undertaking of government purchasing services by the purchasing entity into the annual inspection (report), evaluation and law enforcement supervision system. Article 36: Financial departments and purchasers shall, in accordance with the Regulations of the People’s Republic of China on the Disclosure of Government Information, the Regulations on the Administration of Public Announcement of Government Procurement Information and the relevant provisions on budget disclosure, disclose relevant information on government purchasing activities of financial budgets and departments and units. Information involving state secrets, trade secrets and personal privacy is excluded. Article 37: The financial department shall, in conjunction with relevant departments and purchasing entities, establish credit records for accepting government purchases of services. Administrative penalties shall be imposed on the accepting entities who commit fraud, falsely collect financial funds and other illegal and irregular acts, and they shall be included in the blacklist of government purchases of services.

Chapter VII: Supplementary Provisions Article 38: The Ministry of Finance, in conjunction with relevant departments, shall be responsible for the interpretation of these Measures. Article 39: These Measures shall come into force as of January 1, 2015.

Appendix E

People’s Mediation Law of the People’s Republic of China

(Adopted by the 16th Meeting of the Standing Committee of the Eleventh National People’s Congress on August 28, 2010).

Chapter I: General Provisions Article 1: This Law is formulated in accordance with the Constitution in order to improve the people’s mediation system, regulate people’s mediation activities, promptly resolve civil disputes and maintain social harmony and stability. Article 2: The term “people’s mediation” as mentioned in this Law refers to the activities of the people’s conciliation committee, through persuasion and mediation, to urge the parties concerned to reach a mediation agreement voluntarily on the basis of equal consultation and to settle civil disputes. Article 3: The people’s mediation committee shall follow the following principles in mediating civil disputes: (1) Conduct mediation on the basis of voluntariness and equality of the parties; (2) Not violating laws, regulations and state policies; (3) Respect the rights of the parties, and mediation shall not prevent the parties from defending their rights through arbitration, administration and justice. (4) The People’s Mediation Committee shall not charge any fees for mediating civil disputes.

Chapter II: People’s Mediation Committee Article 7: The People’s Mediation Committee is a mass organization established according to law to mediate civil disputes.

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Article 8: Villagers’ committees and residents’ committees shall establish people’s mediation committees. Enterprises and institutions shall establish people’s mediation committees as required. The people’s mediation committee consists of three to nine members, with one director and, if necessary, several vice-directors. People’s mediation committees should have women members, and areas inhabited by multi-ethnic groups should have fewer members. Article 9: Members of the people’s mediation committees of villagers’ committees and residents’ committees shall be elected by villagers’ meetings or villagers representatives’ meetings and residents’ meetings; members of the people’s mediation committees established by enterprises and institutions shall be elected by workers’ congresses, workers representatives’ congresses or trade union organizations. Members of the People’s Mediation Committee may be re-elected for a term of three years. Article 10: The judicial administrative departments of the people’s governments at the county level shall make statistics on the establishment of the people’s mediation committees within their respective administrative areas, and timely inform the people’s courts at the basic level where they are located about the composition and adjustment of the people’s mediation committees. Article 11: The people’s mediation committees shall establish and improve various mediation work systems, listen to the opinions of the masses and accept their supervision. Article 12: Villagers’ committees, residents’ committees, enterprises and institutions shall provide office conditions and necessary funds for the work of the people’s mediation committees.

Chapter III: People’s Mediators Article 13: The people’s mediators shall be members of the people’s mediation committee and persons appointed by the people’s mediation committee. Article 14: A people’s mediator shall be an impartial, upright and enthusiastic citizen with a certain educational level, policy level and legal knowledge. The judicial administrative departments of the people’s governments at the county level shall regularly train the people’s mediators in their business. Article 15: If a people’s mediator commits one of the following acts in mediation work, the people’s mediation committee in which he belongs shall give him critical education and order him to make corrections. If the circumstances are serious, the unit selected or appointed shall dismiss him or her. (1) (2) (3) (4)

partial to one party; insulting the party concerned; requesting or accepting property or seeking other illegitimate interests; divulging the personal privacy and business secrets of the parties concerned.

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Article 16: When people’s mediators engage in mediation work, they shall be given appropriate allowances for delayed work; if people’s mediation work causes disability and makes life difficult, the local people’s government shall provide necessary medical and living assistance; if people’s mediators sacrifice in the mediation work, their spouses and children shall comply with the state regulations. They will enjoy pensions and preferences.

Chapter IV: Mediation Procedure Article 17: The parties may apply to the People’s Mediation Committee for mediation, and the People’s Mediation Committee may also take the initiative to mediate. If one party expressly refuses to mediate, no mediation shall be allowed. Article 18: Grassroots people’s courts and public security organs may inform the parties concerned to apply to the people’s mediation committee for mediation before accepting disputes that are suitable for settlement through people’s mediation. Article 19: The people’s mediation committee may appoint one or more people’s mediators to mediate disputes according to the needs of mediation, or the parties may choose one or more people’s mediators to mediate. Article 20: A people’s mediator may, in accordance with the need for mediation of disputes and with the consent of the parties concerned, invite relatives, neighbours and colleagues of the parties concerned to participate in mediation, as well as personnel with specialized knowledge and specific experience or personnel of relevant social organizations to participate in mediation. The People’s Mediation Committee supports the participation of local fair and honest, enthusiastic mediators and people-recognized social figures in mediation. Article 21: When mediating civil disputes, people’s mediators shall adhere to the principles, make clear the law and conduct justice. Mediation of civil disputes should be conducted in a timely and local manner to prevent intensification of contradictions. Article 22: People’s mediators may, according to the different circumstances of disputes, mediate civil disputes in various ways, fully listen to the statements of the parties concerned, explain relevant laws, regulations and state policies, patiently guide them, and propose solutions to disputes on the basis of equal consultation and mutual understanding among the parties, so as to help the parties voluntarily. A conciliation agreement was reached. Article 23: The parties shall enjoy the following rights in people’s mediation activities: (1) (2) (3) (4)

Choosing or accepting people’s mediators; Accepting or refusing mediation or requesting termination of mediation; Requiring mediation to be conducted in public or in private; Expressing willingness independently and reaching mediation agreements voluntarily.

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Appendix E: People’s Mediation Law of the People’s Republic of China

Article 24: The parties shall perform the following obligations in the mediation activities of the people: (1) Faithfully state the facts of the dispute; (2) Observe the order on the spot of mediation and respect the people’s mediators; (3) Respect the exercise of rights by the other party. Article 25: When people’s mediators find that disputes are likely to intensify in the course of mediation, they shall take pertinent preventive measures; when disputes that may cause public security or criminal cases are reported to the local public security organs or other relevant departments in a timely manner. Article 26: If a people’s mediator fails to mediate a dispute, he shall terminate the mediation and inform the parties that they can safeguard their rights through arbitration, administration and justice in accordance with relevant laws and regulations. Article 27: A people’s mediator shall record the mediation situation. The people’s mediation commission shall establish files for mediation work and file such materials as mediation registration, mediation work records and mediation agreement.

Chapter V: Mediation Agreement Article 28: If a mediation agreement is reached through mediation by the People’s Mediation Commission, a mediation agreement may be prepared. If the parties consider it unnecessary to make a mediation agreement, they may adopt an oral agreement, and the people’s mediator shall record the contents of the agreement. Article 29: The mediation agreement may set forth the following matters: (1) The basic information of the parties concerned; (2) The main facts of the dispute, the matters in dispute and the responsibilities of the parties concerned; (3) The content of the conciliation agreement reached by the parties, the manner and time limit for its implementation. The mediation agreement shall come into force on the day when the parties sign, seal or fingerprint it, and the people’s mediators sign and affix the seal of the people’s mediation committee. A mediation agreement shall be held by each party and one by the people’s mediation committee. Article 30: An oral mediation agreement shall come into force on the date on which the parties reach an agreement. Article 31: A mediation agreement reached through mediation by the People’s Mediation Commission shall be legally binding and the parties concerned shall perform the agreement. The people’s conciliation committee shall supervise the implementation of the mediation agreement and urge the parties to fulfill their agreed obligations.

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Article 32: If a dispute arises between the parties over the implementation of the mediation agreement or the content of the mediation agreement after the mediation agreement has been reached by the people’s mediation committee, one party may bring a lawsuit to the people’s court. Article 33: After reaching a mediation agreement through mediation by the People’s Mediation Committee, the parties concerned may, if they deem it necessary, jointly apply to the People’s Court for judicial confirmation within 30 days from the effective date of the mediation agreement. The People’s Court shall examine the mediation agreement in time and confirm the validity of the mediation agreement according to law. If the people’s court confirms the validity of the mediation agreement according to law and one party refuses to perform it or fails to perform it in full, the other party may apply to the people’s court for compulsory execution. If the people’s court confirms the invalidity of the mediation agreement according to law, the parties may change the original mediation agreement or reach a new mediation agreement through the people’s mediation, or bring a lawsuit to the people’s court.

Chapter VI: Supplementary Provisions Article 34: Towns, streets, social organizations or other organizations may, as necessary, set up people’s mediation committees to mediate civil disputes in accordance with the relevant provisions of this Law. Article 35: This Law shall come into force as of January 1, 2011.

Appendix F

Questionnaire on Harmonious Community Construction

Hello: Today’s society advocates building and maintaining a harmonious society, but social conflicts still exist widely. Only by finding a mechanism to solve disputes and improving the handling methods can we achieve the goal and ideal of a harmonious society. Thank you for your valuable time of about 20 min to assist in the completion of several issues related to conflict mediation, resolution mechanisms and outcomes. Your participation is very important to my research. Any personal data and data in the questionnaire will be kept confidential. Please feel free to fill in. November 2008 ~~~ Consent to participate in research ~~~ The following is the survey of “Shanghai Harmonious Community Construction”. I would like to participate in the questionnaire survey and understand that: I. Participation in this study is entirely voluntary. II. Absolute confidentiality of all information. III. All information is for research purposes only. I know I can stop participating in research at any time. Signature: ________________________. I. The basic situation of the community (please tick the appropriate options) 1. How do you feel about your overall income in the community you live in? (1) Bottom (2) Medium to lower (3) Medium (4) Medium to high (5) High. 2. Compared with other communities in Shanghai, what level do you think the quality of life of residents in your community is at? (1) Bottom (2) Medium to lower (3) Medium (4) Medium to high (5) High.

© Shanghai People’s Publishing House 2020 J. Hu, Disputes Resolution in Urban Communities in Contemporary China, https://doi.org/10.1007/978-981-15-8644-6

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3. Please evaluate the following aspects of community property services (1 is the lowest score, 5 is the highest score; please tick the corresponding score). Very unsatisfied

Unsatisfied

Neutral

Satisfied

Very satisfied

Health status

1

2

3

4

5

Greening

1

2

3

4

5

Security

1

2

3

4

5

Community vehicle parking

1

2

3

4

5

House maintenance

1

2

3

4

5

Use of maintenance fund

1

2

3

4

5

Property charges

1

2

3

4

5

General comment

1

2

3

4

5

4. Do most residents feel at home in their communities? The full score is 10, expressing great satisfaction, and the zero score is extremely unsatisfactory. So your community can score? 5. Generally speaking, do you feel that your relationship with the residents of your community is harmonious and that you are happy to interact with them? The full score is 10, which is very satisfactory and 0 is extremely unsatisfactory. Your community can be scored as ___? 6. A. Have you ever participated in a community organization, team or interest group? If so, please write down the name: _______________________________________________________________ B. If you have participated, for you personally, what do you think is the greatest benefit of participating in this group? (Optional) (1) (2) (3) (4) (5) (6) (7)

Expanding the circle of communication Achieving spiritual satisfaction Increasing experience and learning technical skills Contributing to social public welfare undertakings Acquiring personal economic benefits Spending time Other: _______________ (please specify).

7. In addition to the residents’ and homeowners’ committees, please list two selfgoverning or other forms of management organizations and teams that you know or participate in? (1) _______________________ (2) ________________________ (3) Not any ____ (If you choose this item, please tick on the horizontal line).

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II. Presentation and settlement of disputes (please tick the appropriate options) 1. How do you feel about the total number of personal conflicts (family problems, neighbourhood disputes, conflicts with property or others in the community) that have arisen in or around you in the past two years? (1) reduced a lot (2) reduced a little (3) no change (4) increased a little (5) increased a lot 2. Please choose from the following categories of disputes that you have experienced personally (optional) (1) Collective signature (2) People go to the government to reflect the situation (3) Family disputes (4) Construction, noise disturbance (5) Removal of people (6) Contract disputes with work units (7) Neighborhood disputes (8) Dissatisfaction with community environment (greening, sanitation, maintenance of public facilities, etc.) and complaints; (9) No experience in conflict (10) Others: ________ (please specify) 3. According to your understanding, generally speaking, what causes interpersonal disputes around you? (Optional) (1) Reasons for economic interests (2) Different personal beliefs (3) Different attitudes and views on problems (4) Different regions, different life experiences, different personal qualities (academic background, educational background) 4. A. How do you handle personal disputes (family conflicts, neighbourhood disputes, conflicts with property or others in the community, etc.) (Please tick the appropriate options): Strongly disagree

Disagree

Neutral

Agree

Strongly agree

I will try to cooperate and negotiate with others to find a satisfactory solution for both sides

1

2

3

4

5

I don’t want to have direct contact or negotiation with the conflicting parties

1

2

3

4

5

I like to think more about the situation of both sides and find a compromise solution to solve the problem

1

2

3

4

5

If I can, I will resolve conflicts through personal power

1

2

3

4

5

(continued)

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(continued) I generally consider meeting each other’s demands to reach a settlement

Strongly disagree

Disagree

Neutral

Agree

Strongly agree

1

2

3

4

5

B. When you participate in collective activisms (e.g. collective signature, collective report to a department, government, collective request for protection of rights and interests, collective petition, collective petition, etc.) (If you have not participated, do not fill in this column) Strongly disagree

Disagree

Neutral

Agree

Strongly agree

I will try to cooperate and negotiate with others to find a satisfactory solution for both sides

1

2

3

4

5

I don’t want to have direct contact or negotiation with the conflicting parties

1

2

3

4

5

I like to think more about the situation of both sides and find a compromise solution to solve the problem

1

2

3

4

5

If I can, I will resolve conflicts through personal power.

1

2

3

4

5

I generally consider meeting each other’s demands to reach a settlement

1

2

3

4

5

5. In the past two years, when you encounter disputes, you have resorted to the Street Office___times. Please describe the latest dispute settlement: A. The specific events that you require to deal with are as follows:____________________________________________________ B. Which agency in the Street Office accepts your request? _____________________ C. What kind of coordination style do you think street coordinators prefer when dealing with the latest dispute? (single choice) (1) Mandatory means to reach agreement between the two sides

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(2) Avoiding conflicts as far as possible; using good solutions to satisfy both sides (3) Coordinating the two sides to solve problems through mutual compromise and concessions (4) Handling disputes favorably with one side and wronging the other side 6. When you have disputes with others, who are you most likely to turn to for help to resolve the disputes? (1) Nobody, self-solving (2) Family members (3) Neighbors (4) Community leadership (5) Police (6) Judiciary (7) Residents’ Committee and Street Office (8) Homeowner’s Committee (9) Government Letters and Visits Organizations (10) Other: (Please specify)______. III. Dispute result and satisfaction 1. In the past two years, according to the fact that you have been coordinated by the relevant agencies in the street to deal with the conflicts you encounter, now if you want to score the results of their handling, the full score is 10 points, expressing great satisfaction, and the zero score is extremely unsatisfactory, you will score ___. 2. In the past two years, on average, how long has it taken for them to solve your problems when you turn to the street to coordinate disputes? (1) Within one month (2) 2–3 months (3) 3–6 months (4) 4 months to 1 year (5) More than one year 3. How likely do you feel that street coordinators will need to re-accept and coordinate the outcome of your latest dispute? (1) Impossible (2) Possible (3) Very Possible (4) Absolutely need 4. To what extent do you trust the following groups and institutions? (Please tick the corresponding scores) Strongly distrust

Distrust

Trust

Strongly trust

No idea

Residents’ committee

1

2

3

4

5

Property management company

1

2

3

4

5

Your working unit

1

2

3

4

5

The court

1

2

3

4

5

Homeowners’ committee

1

2

3

4

5

Acquaintance

1

2

3

4

5

People with economic contacts

1

2

3

4

5

Media

1

2

3

4

5

Hospital

1

2

3

4

5 (continued)

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(continued) Strongly distrust

Distrust

Trust

Strongly trust

No idea

Community residents

1

2

3

4

5

Colleagues

1

2

3

4

5

Strangers

1

2

3

4

5

The government

1

2

3

4

5

5. Do you agree with the following statement? (1 points strongly disagree, 5 points strongly agree). Please tick the corresponding score. Strongly disagree

Strongly agree

I can enjoy my civil rights

1

2

3

4

5

I have a good understanding of important political events in China

1

2

3

4

5

If I were to be a government official, I would be equally competent

1

2

3

4

5

I think I know more about politics and government than the average person

1

2

3

4

5

Government policies and measures are hard to understand. 1 I don’t know how they work

2

3

4

5

People like me have no say in government work

1

2

3

4

5

The implementation of the electoral system can make the government more concerned about public opinion

1

2

3

4

5

6. Please evaluate the efficiency of services provided by the following organizations (please tick the corresponding scores). Very low

Low

High

Very high

No idea

Residents’ committee

1

2

3

4

5

Homeowners’ committee

1

2

3

4

5

The government

1

2

3

4

5

The police

1

2

3

4

5

City management team

1

2

3

4

5

The street

1

2

3

4

5

Property management company

1

2

3

4

5

The court

1

2

3

4

5

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7. Do you agree with the following statement (please tick the corresponding score)? Strongly disagree

Strong agree

My living conditions are good

1

2

3

4

5

At present, I have got the important things I want in my life

1

2

3

4

5

If I could live from scratch, I would have nothing to change

1

2

3

4

5

I am confronted with conflicts in pursuit of harmony, because face and relationship are very important

1

2

3

4

5

The traditional concept of “no litigation” (no 1 litigation) is correct, and direct appeal to the court should be avoided as far as possible

2

3

4

5

Conflicts should be properly settled through 1 mediation and cooperation orders

2

3

4

5

Settlement through legal relations can easily 1 lead to emotional antagonism and deepening contradictions between the two sides

2

3

4

5

8. Overall, in your opinion, what kind of community is harmonious? Please describe your ideas and suggestions. IV. Basic data of residents Please cooperate to fill in the following information, your information is very important for this study, so as to understand some basic information of participants. Thank you very much for your cooperation and support! (Please tick the appropriate options) 1. 2. 3. 4. 5. 6. 7.

8.

Your sex: (1) Male (2) Female Birth Date: ________________ Your religious background: (1) Catholicism (2) Christianity (3) Taoism (4) Islam (5) Buddhism (6) No religious beliefs (7) Others (please specify):_____ How is your household registration: (1) Shanghai (2) Non-Shanghai Your marital status: (1) Married (2) Unmarried (3) Divorced (4) Widowed How long do you live in this community: ______Year_______Month Your highest educational background is: (1) primary school and below (2) junior high school (3) senior high school (4) technical secondary school/technical school (5) junior college (6) undergraduate course (7) master’s degree and above. Your occupation is: (if you choose 1, 2 and 3, then answer Question 11 directly) (1) Retired (2) Unemployed (3) Student (4) Party workers (5) Government functionaries (6) Staff of public institutions (7) Staff and clerks (8) Enterprise management personnel (9) Private entrepreneurs (10) Professional and technical personnel (11) Individual businesses (12) Skilled workers (13) Unskilled workers (14) Farmers (15) Other_____

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9.

Your position is: (1) General Manager (2) Middle Manager (3) Senior Manager and Leadership (4) Government civil servants (5) Other______ 10. In the community you live in, you belong to: (optional) (1) Residents’ Committee staff (2) Building team leader (3) Social workers (4) Volunteers (5) Community residents (6) Property managers (7) Others (please specify):______ 11. Your monthly income is: (1) Below 1000 yuan (2) 1001–2000 yuan (3) 2001–4000 yuan (4) 4001–6000 yuan (5) 6001–8000 yuan (6) 8001–10,000 yuan (7) 10,001–15,000 yuan (8) 15, 001 or more 12. Your political status is: (1) Party members of the CCP (2) Members of democratic parties (3) Others (please specify) _____ Your contact number:______ This is the end of the questionnaire survey. Thank you again for your cooperation and support!

Appendix G

Provisional Regulations on the Registration and Administration of Civil Non-enterprise Units

(promulgated by Decree No. 251 of the State Council on 25 October 1998).

Chapter I: General Provisions Article 1: These Regulations are formulated in order to standardize the registration management of civil non-enterprise units, protect the legitimate rights and interests of civil non-enterprise units, and promote the construction of socialist material and spiritual civilization. Article 2: The term “civilian-run non-enterprise units” as mentioned in these Regulations refers to social organizations organized by enterprises, institutions, social organizations and other social forces, as well as citizens and individuals using non-state-owned assets to engage in non-profit social service activities. Article 3: The establishment of civil non-enterprise units shall be examined and approved by their competent business units and registered in accordance with the provisions of these Regulations. Article 4: Civil non-enterprise units shall abide by the Constitution, laws, regulations and state policies, shall not oppose the basic principles established by the Constitution, shall not endanger the unity, security and national unity of the state, shall not harm the interests of the state, social public interests and the legitimate rights and interests of other social organizations and citizens. Civil non-enterprise units shall not engage in profit-making business activities. Article 5: The civil affairs departments of the State Council and the local people’s governments at or above the county level shall be the registration administration organs of the people’s governments at the corresponding levels for non-enterprise units (hereinafter referred to as the registration administration organs). The relevant departments of the State Council and the relevant departments of the local people’s governments at or above the county level, or the organizations authorized by the State Council or the local people’s governments at or above the © Shanghai People’s Publishing House 2020 J. Hu, Disputes Resolution in Urban Communities in Contemporary China, https://doi.org/10.1007/978-981-15-8644-6

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county level, are the business competent units of civil non-enterprise units within the relevant industries and business scope (hereinafter referred to as business competent units). Where laws and administrative regulations provide otherwise for the supervision and management of civil non-enterprise units, they shall be implemented in accordance with the provisions of relevant laws and administrative regulations.

Chapter II: Jurisdiction Article 6: The registration administration organ shall be responsible for the registration administration of the civil non-enterprise units approved by the competent business units at the same level. Article 7: Where the registration administration organ, the competent business unit and the civil non-enterprise unit under their jurisdiction are not located in the same place, the registration administration organ and the competent business unit in the place where the civil non-enterprise unit resides may be entrusted with the supervision and management work within the entrusted scope.

Chapter III: Registration Article 8: When applying for registration of private non-enterprise units, the following conditions shall be met: (1) (2) (3) (4) (5)

Upon examination and approval by the competent business unit; Having a standardized name and necessary organization; Employees who are suitable for their business activities; Having legitimate property suitable for its business activities; Necessary places. The names of civil non-enterprise units shall conform to the provisions of the Civil Affairs Department of the State Council, and shall not be labeled as “China”, “the whole country”, “China”.

Article 9: In applying for registration of civil non-enterprise units, the organizer shall submit the following documents to the registration administration organ: (1) (2) (3) (4) (5) (6)

Application for registration; Approval documents of competent business units; Certification of the right to use the place; Capital verification report; Basic information and identity certificate of the person to be appointed; Draft articles of association.

Article 10: The articles of association of civil non-enterprise units shall include the following items:

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(1) (2) (3) (4) (5) (6) (7) (8)

243

Name and domicile; Purpose and scope of business; Organization and management system; Procedures for the generation or removal of legal representatives or persons in charge; Principles of asset management and use; The procedure for amending the articles of association; Procedures for termination and disposal of assets after termination; Other matters that need to be stipulated in the articles of association.

Article 11: The registration administration organ shall, within 60 days from the date of receipt of all the valid documents for the application for registration of establishment, make a decision on whether to grant registration or not to grant registration. In any of the following circumstances, the registration administration organ shall not register and shall explain the reasons to the applicant: (1) Proving that the purpose and scope of business of a civil non-enterprise unit applying for registration do not conform to the provisions of Article 4 of these Regulations; (2) Falsifying the application when it is established; (3) It is not necessary to establish a privately-run non-enterprise unit with the same or similar business scope within the same administrative region; (4) The proposed person in charge is or has been subjected to criminal punishment for deprivation of political rights, or does not have full capacity for civil conduct; (5) Other circumstances prohibited by laws and administrative regulations. Article 12: Civil non-enterprise units that are permitted to register shall be registered by the registration administration organ with the name, domicile, purpose and scope of business of the privately-run non-enterprise units, legal representatives or persons in charge, start-up funds and business units in charge, and shall be issued to the civil non-enterprise in accordance with the different ways in which they bear civil liability according to law. Registration Certificate of Unit (Legal Person), Registration Certificate of Civil Non-Enterprise Unit (Partnership), Registration Certificate of Civil Non-enterprise Unit (Individual). In accordance with the provisions of laws and other administrative regulations, civil non-enterprise units that have obtained corresponding licenses after being examined or registered by relevant competent authorities according to law shall be simplified by the registration administration organ and issued to the corresponding civil non-enterprise units for registration on the basis of the license certificate documents issued by the competent authorities concerned. Keep a certificate. Article 13: Civil non-enterprise units shall not set up branches. Article 14: Civil non-enterprise units shall apply for engraving seals and opening bank accounts on the basis of registration certificates. Civil non-enterprise units shall report the seal pattern and bank account number to the registration administration organ for the record.

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Article 15: If the registration items of a civil non-enterprise unit need to be changed, it shall apply to the registration authority for registration change within 30 days from the date of examination and approval by the competent business unit. Civil non-enterprise units shall submit their amendments to the registration authority for approval within 30 days from the date of examination and approval by the competent business units. Article 16: Where a civil non-enterprise unit dissolves itself, separates or merges, or needs to cancel its registration for other reasons, it shall cancel its registration with the registration administration organ. Civil non-enterprise units shall establish liquidation organizations and complete the liquidation work under the guidance of competent business units and other relevant organs before going through the cancellation of registration. During the period of liquidation, civil non-enterprise units shall not carry out activities other than liquidation. Article 17: The legal representative or person in charge of a civil non-enterprise unit shall cancel the registration with the registration administration organ within 15 days from the date of completion of the liquidation. For the cancellation of registration, an application for cancellation of registration, examination documents and liquidation reports of the competent business units shall be submitted. Where the registration administration organ grants cancellation of registration, it shall issue a certificate of cancellation and collect registration certificates, seals and financial documents. Article 18: The establishment, cancellation and change of name, domicile, legal representative or person in charge of a civil non-enterprise unit shall be announced by the registration administration organ.

Chapter IV: Supervision and Management Article 19: The registration administration organ shall perform the following supervisory and administrative functions: (1) To be responsible for the establishment, alteration and cancellation of registration of civil non-enterprise units; (2) Implementing annual inspections of civil non-enterprise units; (3) To supervise and inspect the violation of these Regulations by civil nonenterprise units, and to impose administrative penalties on the violation of these Regulations by civil non-enterprise units. Article 20: The competent business units shall perform the following supervisory and administrative duties: (1) To be responsible for the examination before the establishment, alteration or cancellation of registration of civil non-enterprise units;

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(2) To supervise and guide civil non-enterprise units to abide by the Constitution, laws, regulations and state policies and to carry out activities in accordance with the articles of association; (3) To be responsible for the preliminary examination of the annual inspection of civil non-enterprise units; (4) Assisting registration authorities and other relevant departments in investigating and dealing with illegal acts committed by civil non-enterprise units; (5) To guide the liquidation of civil non-enterprise units in conjunction with relevant organs. The competent business units shall not collect fees from civil nonenterprise units in performing the duties prescribed in the preceding paragraph. Article 21: The sources of assets of civil non-enterprise units must be legitimate. No unit or individual may embezzle, privately distribute or misappropriate the assets of civil non-enterprise units. The legitimate income earned by civil non-enterprise units in carrying out activities stipulated in the articles of association in accordance with the relevant provisions of the state must be used for the business activities stipulated in the articles of association. Civil non-enterprise units receiving donations and subsidies must conform to the purposes and scope of business as stipulated in the articles of association, and must use them in accordance with the time limit, mode and legitimate use agreed upon with donors and subsidizers. Civil non-enterprise units shall report to the competent business units the relevant information on the acceptance and use of donations and subsidies, and shall publish the relevant information to the public in an appropriate manner. Article 22: Civil non-enterprise units must implement the financial management system prescribed by the State and accept the supervision of the financial departments; if the assets are from state-funded or social donations or subsidies, they shall also be subject to the supervision of audit institutions. When a civil non-enterprise unit changes its legal representative or person in charge, the registration administration organ and the competent business unit shall organize its financial audit. Article 23: Civil non-enterprise units shall submit their work reports for the previous year to the competent business units before March 31 each year. After the approval of the competent business units for the first examination, they shall submit them to the registration administration authorities before May 31 for annual inspection. The contents of the work report include: the compliance of civil non-enterprise units with laws and regulations and state policies, the implementation of registration procedures in accordance with these Regulations, the activities carried out in accordance with the articles of association, the changes of personnel and institutions, and the financial management. For civil non-enterprise units that issue registration certificates in accordance with the provisions of Article 12, paragraph 2, of these Regulations, the registration administration authorities shall simplify the contents of their annual inspection.

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Chapter V: Penalty Provisions Article 24: Where a privately-run non-enterprise entity falsifies its application for registration, defrauds its registration, or the competent business unit revokes its approval, the registration authority shall revoke the registration. Article 25: Where a civil non-enterprise unit has one of the following circumstances, it shall be warned by the registration administration organ and ordered to make corrections, and may stop its activities within a time limit; if the circumstances are serious, the registration shall be revoked; if the case constitutes a crime, criminal responsibility shall be investigated according to law: (1) Altering, leasing or lending the registration certificate of civil non-enterprise units, or leasing or lending the seal of civil non-enterprise units; (2) To carry out activities beyond the purposes and scope of business stipulated in its articles of association; (3) Refusing to accept or not accepting supervision and inspection in accordance with regulations; (4) Failing to register changes in accordance with the provisions; (5) Establishing branches; (6) Engaging in profit-making business activities; (7) Embezzling, privately sharing or misappropriating the assets of civil nonenterprise units or receiving donations or subsidies; (8) Collecting fees, raising funds or accepting donations or subsidies in violation of the relevant provisions of the State. If the acts prescribed in the preceding paragraph contain illegal business or illegal income, they shall be confiscated and may also be fined at least one time or three times of illegal business or three or five times of illegal income. Article 26: If the activities of civil non-enterprise units violate other laws and regulations, they shall be dealt with by the relevant state organs according to law; if the relevant state organs believe that the registration should be revoked, the registration administration organ shall revoke the registration. Article 27: Where a civil non-enterprise unit carries out activities in the name of a civil non-enterprise unit without registration, or if the revoked civil non-enterprise unit continues to carry out activities in the name of a civil non-enterprise unit, it shall be banned by the registration administration organ and illegal property shall be confiscated; if a crime is constituted, criminal responsibility shall be investigated in accordance with the law; if it does not constitute a crime, it shall not constitute a crime. Those who commit crimes shall be punished by public security administration according to law. Article 28: Where a civil non-enterprise unit is suspended within a time limit, its registration certificate, seal and financial certificate shall be sealed by the registration administration organ. Where a civil non-enterprise unit is revoked from registration, the registration certificate and seal shall be collected by the registration administration organ.

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Article 29: Any staff member of the registration administration organ or the competent business unit who abuses his power, engages in malpractices for personal gain or neglects his duty constitutes a crime shall be investigated for criminal responsibility according to law; if the case does not constitute a crime, administrative sanctions shall be imposed according to law.

Chapter VI: Supplementary Provisions Article 30: The pattern of registration certificates for civil non-enterprise units shall be formulated by the Civil Affairs Department of the State Council. No fee shall be charged for the annual inspection of civil non-enterprise units. Article 31: Civil non-enterprise units established before the implementation of these Regulations shall apply for registration in accordance with the relevant provisions of these Regulations within one year from the date of implementation of these Regulations. Article 32: These Regulations shall come into force as of the date of promulgation.

Appendix H

Interim Measures for People’s Mediation of Tianjin Social Organizations

Chapter I: General Provisions Article 1: In order to regulate the people’ mediation activities of social organizations, give full play to the role of people’s mediation of social organizations in resolving conflicts within social organizations, promote the healthy development of social organizations and maintain social harmony and stability, according to the People’s Mediation Method of the People’s Republic of China and the Group of People’s Mediation Committees for the Implementation of Tianjin Municipality. These Measures are formulated in the Detailed Rules of the Organizational Regulations. Article 2: The term “people’s mediation by social organizations” as mentioned in these Measures refers to the activities of the people’s mediation committees of social organizations which, through persuasion, guidance and persuasion, urge the parties to reach agreement voluntarily on the basis of equal consultation and properly resolve contradictions and disputes. Article 3: These Measures shall be applicable to conflicts and disputes between municipal and district-county-affiliated social organizations in Tianjin that need mediation. Article 4: The mediation work of the people’s mediation committees of social organizations shall follow the following principles: (1) The principle of voluntariness. To mediate on the basis of voluntariness and equality of the parties; (2) Not violating laws, regulations and state policies; (3) Fully respect the rights of the parties, and may not prevent the parties from defending their rights by other means in accordance with the law through mediation. Article 5: The people’s mediation committee of a social organization shall not charge any fees for mediating contradictions and disputes within a social organization.

© Shanghai People’s Publishing House 2020 J. Hu, Disputes Resolution in Urban Communities in Contemporary China, https://doi.org/10.1007/978-981-15-8644-6

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Article 6: The Tianjin Civil Affairs Bureau and the Tianjin Judicial Bureau shall be responsible for guiding the mediation work of the people of the municipal social organizations, while the district and county civil affairs bureaus and district and county judicial bureaus shall be responsible for guiding the mediation work of the people of the social organizations under their respective administrative regions.

Chapter II: People’s Mediation Committee of Social Organizations Article 7: The people’s mediation committee of social organizations is a mass organization established according to law to mediate contradictions and disputes within social organizations. Article 8: The People’s Mediation Committee of a social organization shall consist of three to nine members, with one director and four vice-chairmen. The members shall be broadly representative and elected for a term of three years and may be re-elected. Article 9: The people’s mediation committees of social organizations shall establish and improve various mediation systems, widely listen to opinions and accept supervision from all parties. Article 10: The civil affairs bureaus of cities, districts and counties shall provide office conditions and necessary funds for the work of the people’s mediation committees of social organizations under their respective responsibilities.

Chapter III: People’s Mediators of Social Organizations Article 11: People’s mediators of social organizations shall have policy level, legal knowledge and be familiar with relevant business. Article 12: People’s mediators of social organizations shall abide by the following disciplines in mediating contradictions and disputes: (1) (2) (3) (4) (5) (6) (7)

The parties’ request for mediation shall not be refused; The parties shall not be treated with indifference and prevarication; No favouritism or fraud shall be allowed to favor one of the parties; State secrets, trade secrets or the privacy of the parties shall not be disclosed; The party concerned shall not be insulted, suppressed or retaliated against; It is forbidden to accept invitations and gifts, ask for bribes and accept bribes; Other violations of the relevant provisions of mediation by social organizations.

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Chapter IV: Mediation Procedure Article 13: Parties to contradictions and disputes within social organizations may apply to the people’s mediation committee of social organizations for mediation, and the people’s mediation committee of social organizations may also take the initiative to mediate. If one party expressly refuses to mediate, no mediation shall be allowed. Article 14: The people’s mediation committee of a social organization shall appoint two people’s mediators or two people’s mediators chosen by the parties concerned to mediate in accordance with the type and content of mediation of disputes. Article 15: An application for mediation of contradictions and disputes within a social organization shall meet the following conditions: (1) The applicant is a member of a social organization or a staff member of a social organization that has a direct interest in the dispute; (2) Having a clear respondent; (3) Having specific requests, clear facts and sufficient reasons; (4) Disputes applying for mediation are related to the mediation powers of the people’s mediation committees of social organizations; (5) Conflicts belong to contradictions within social organizations and are mediatable. Article 16: The parties shall enjoy the following rights in the mediation activities of social organizations: (1) Accepting or refusing mediation or requesting termination of mediation; (2) Requiring mediation to be conducted in public or in private; (3) Expressing willingness independently and reaching mediation agreement or reconciliation voluntarily. Article 17: The parties shall perform the following obligations in the mediation activities of social organizations: (1) Faithfully state the facts of contradictions and disputes; (2) Respecting the exercise of rights by the other party; (3) Observe the order on the spot of mediation and respect the people’s mediators of social organizations. Article 18: When applying for mediation, the parties may apply either in writing or orally. Where a party orally applies, the people’s mediator shall record it on the record. Article 19: After receiving an application for mediation, the people’s mediation committee of a social organization shall carefully examine the relevant materials and, if they meet the requirements, shall seek the opinions of the respondent on mediation within five working days from the date of receiving the application. After obtaining the consent of the parties concerned, the mediation procedure shall be initiated within

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three working days, and the parties shall be notified of the time, place of mediation and the list of people’s mediators. The time limit for mediation termination is 30 working days. In case of special circumstances, with the consent of the chairman of the People’s Mediation Commission, the prescription of limitation in the preceding paragraph may not be restricted. Article 20: A people’s mediator of a social organization shall evade any of the following circumstances: (1) The party to the dispute or has close relatives with the parties or agents; (2) Having an interest in the dispute; (3) It has other relations with the parties and agents of the dispute, which may affect the fair handling of the contradictions and disputes. Article 21: The mediation of disputes by people’s mediators of social organizations shall be carried out according to the following procedures: (1) Hearing the statements, requests and reasons of the parties; (2) Asking the parties, verifying the evidence, ascertaining the facts and clarifying the responsibilities; (3) To persuade and pacify the parties concerned and organize and negotiate the contents of the mediation agreement. People’s mediators of social organizations can mediate disputes with clear facts, clear rights and obligations and little controversy. Conflicts concerning social stability, such as mass incidents and emergencies, which need to be resolved in time and effectively, can be mediated flexibly on the spot or in different places according to the types and characteristics of disputes. With the consent of the director of the People’s Mediation Committee, the mediation procedure may not be restricted. Article 22: A people’s mediator of a social organization who mediates conflict and disputes shall make a record of mediation. Mediation transcripts shall be submitted to the parties for verification and signed or fingerprinted by the parties and the people’s mediators. Article 23: In the process of mediating disputes, the people’s mediators of social organizations shall report to the public security organs or other relevant departments in a timely manner if they find that contradictions and disputes may intensify and lead to public security cases, criminal cases or illegal acts committed by the parties concerned. Article 24: If a people’s mediator of a social organization fails to mediate disputes, he or she shall terminate mediation and inform the parties of the ways in which they can safeguard their rights according to law. Article 25: People’s mediators of social organizations shall record the mediation situation. The people’s mediation committees of social organizations shall establish files for mediation work and file such materials as mediation registration, mediation work records and mediation agreement.

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Chapter V: Mediation Agreement Article 26: Where a mediation agreement is reached through mediation by a people’s mediation committee organized by the Economic and Social Commission, a mediation agreement may be prepared. If the parties consider it unnecessary to make a mediation agreement, they may adopt an oral agreement. The people’s mediator of a social organization shall record the contents of the agreement. Article 27: The mediation agreement shall contain the following items: (1) The basic information of the parties concerned; (2) The main facts, disputes and responsibilities of the parties involved in the dispute; (3) The content, manner and date of performance of the mediation agreement reached by the parties. The mediation agreement shall come into force on the day when the parties sign, seal or fingerprint it, and the people’s mediators of social organizations sign and stamp the seals of the people’s mediation committees of social organizations. Each party to the mediation agreement holds one copy, while the people’s mediation committee of the social organization retains one copy. Article 28: An oral mediation agreement shall come into force on the date on which the parties reach an agreement. Article 29: The mediation agreement reached by the people’s mediation committee of the social organization through mediation shall be legally binding and the parties concerned shall perform it in accordance with the agreement. Article 30: The people’s mediation committee of a social organization shall supervise the implementation of the mediation agreement and urge the parties to fulfil their agreed obligations. After reaching a mediation agreement through mediation by the People’s Mediation Committee, the parties concerned may jointly apply to the People’s Court for judicial confirmation within 30 days from the effective date of the mediation agreement. The People’s Court shall examine the mediation agreement in time and confirm the validity of the mediation agreement according to law; for example, confirm the validity of the mediation agreement; Where the obligee refuses to perform or fails to perform in full, he may apply to the people’s court for compulsory execution; if he confirms that the mediation agreement is invalid, the parties may change the original mediation agreement or reach a new mediation agreement through the people’s mediation, or bring a lawsuit to the people’s court.

Chapter VI: Supplementary Provisions Article 31: Where there are other provisions on mediation of social organizations in laws, regulations and rules, such provisions shall prevail. Article 32: The people’s mediation committees of social organizations may be established by referring to these Measures as necessary by the competent business

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units, hub-type social organizations and other types of social organizations at the municipal, district and county levels to mediate contradictions and disputes within their social organizations. Article 33: These Measures shall come into force as of May 1, 2013.

Appendix I

Organizational Regulations of Urban Subdistrict Offices

(Adopted by the Standing Committee of the National People’s Congress at its fourth meeting on 31 December 1954; Decree of the President of the People’s Republic of China promulgated on 31 December 1954). Article 1: In order to strengthen the work of urban residents and to keep in close contact with the government and residents, the people’s committees of municipal districts and cities without districts may set up subdistrict offices as their dispatching organs in accordance with the needs of their work. Article 2: Subdistrict offices shall be established in municipal districts with a population of more than 100,000 and cities without districts; subdistrict offices may also be established in municipal districts with a population of