I was honored to address the 4th Conference of the Asian Mediation Association in Beijing, held 20-21 October, 2016, as a keynote speaker. My remarks appear below.
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What the West Can Learn from Chinese Mediation
I first visited China almost 15 years ago as a representative of the CPR Institute in New York. The Institute is a coalition of corporations, and their law firms, who seek ways to resolve disputes with each other that do not involve entering American courts. Over the course of five or six years, I worked with CCPIT on a project that eventually became known as the US-China Business Mediation Center.
Although I was very proud of the work that my Chinese friends and I were able to accomplish, I value our personal friendships even more. During my brief visit for this conference I have been meeting some of my friends and I find my life enriched by their kindness, loyalty and happiness.
At some point during the creation of the US-China Mediation Center, it was made clear to me that many Chinese lawyers, judges, arbitrators and business people wanted to learn how American businesses mediate. This was a little bit of a surprise to me, because I thought that I had come to China so that I may learn from the Chinese, not to teach them. But an American professor, Dwight Golann, and I conducted a 3-day training session to explain how America companies mediate.
The training session did not go as we had planned. Many Chinese judges and very experienced CIETAC arbitrators attended the event, and they were seriously confused. For one thing, they were accustomed to listening to the professor lecture. In America, mediators learn, not through lecture, but instead by doing exercises and practicing. Professor Golann and I were teaching the way you might buy a suit, or ride a bicycle – by trying it and learning what fits. This process made some of our Chinese friends uncomfortable – they were used to writing notes while someone talked.
The other, more serious, miscommunication was more substantive. It had to do with what mediation was for – what the very purpose of it was. The Professor and I were teaching a process where companies who had a dispute went into a private room and hammered out a solution that worked for them, usually by offering some money and also a change to the contract going forward. One very esteemed Chinese participant found this approach to be completely useless. He said that he had conciliated over 10,000 cases in his court, and he explained his process. He said that he told them to stop lying and explain what really happened. Then he consulted the civil code to determine what the correct outcome would be. Then he called the parties into his office and told them that Party One owed Party Two 50,000 RMB, and should pay. He added that he could not force Party One to pay Party Two, but if it did not pay 50,000 RMB, then he would continue the trial and at the end, in front of family, neighbors, and the community, he would order Party One to pay Party Two 50,000 RMB. “Every one of my cases settled,” he said.
“And they settled on the right terms,” he added.
It was this idea – that the terms of mediation should be “right” – that began the process of learning from my Chinese friends that I sought in the first place.
Young people often scoff that their parents do not understand them or the world – that because they are old, they are ignorant. A famous American writer, Mark Twain, once wrote “when I was a boy of 14, my father was so ignorant I could hardly stand to have the old man around. But when I got to be 21, I was astonished at how much the old man had learned in seven years.”
So it is, too often, with young America and the older, wiser, more sophisticated Asian countries. I do not mean to suggest that Americans are stupid. Rather, they are so eager to teach what they think they know that they often underestimate the lessons that they can learn from older cultures such as China. This is especially true in fields like conciliation, where centuries of experience have developed a different approach to dispute resolution – one that deserves respect.
Western culture emphasizes individual liberty. Indeed, one of my great heroes, Thomas Jefferson, wrote that the only reason governments exist at all is to protect the liberty of individual people, and the only authority that governments have is the authority that the people grant to it. This sounds like an appealing idea, and of course it is. But it can result in a nation that sometimes goes off-course. As an example, I point you to the election that will take place in three weeks, in which Americans will choose between two presidential candidates that most Americans do not want to be president in the first place.
This emphasis on individuals, and individual liberty, is reflected in the way Americans mediate. When I learned to mediate, I was trained to listen closely to individual disputants, and probe to find out as much as I could about what they wanted to gain, or to avoid, in this conflict. I was trained to seek out areas in which their individual desires might be shared without their recognizing it, and how to identify the distinct areas in which they differed. I was trained to help parties to measure the risk of failing to agree – the risk of going to an American court and losing money, time and reputation in a public and uncertain forum. I was trained to be alert to possible trade-offs or exchanges or compromises, so that each party to the dispute got the things that were most important to them, by offering to exchange things that were less important to them. And I was trained that a “successful” mediation was one in which the parties privately agreed to a solution that each thought was the best for them – the best under the circumstances they were faced with, and better than going to court.
But I was never trained to counsel them in what the law was. That was for their personal lawyers to help with, not for the neutral and unbiased mediator. Indeed, I was trained never, never to express an opinion about anything other than what might be best for the specific parties in front of me – and even then, always to defer to their own business judgment.
I will add that this emphasis on personal self-interest has a peculiar and uncomfortable relationship to our personal values in America. As a child I was taught never to take the largest piece of pie, but instead to offer it to others first. I was taught to apologize and admit responsibility if, by mistake, I threw a baseball through my neighbor’s window while I was playing. And I was taught to be fair when playing with my schoolmates on the playground, not to bully others and not to take advantage of younger children. Yet when American businesses engage in litigation, and even mediation, they consistently deny responsibility and seek every advantage they can obtain – and they do so on the strict advice of their legal counsel.
Compare this approach to the practice in China. In 2009 I was given a copy of this book that I hold in my hand, which celebrated the 20th anniversary of the CCPIT Mediation Centers. It is a beautiful volume and I was honored to receive it. Many of my friends worked on it, including ZHUNG Rungao, CHENG Hui, and our host today WANG Fang. There is a lovely picture of WAN Jifei addressing the 2005 US-China Mediation Center Congress, with a (younger) me listening to his words. And here is a picture of the training session that Professor Golann conducted.
But the reason I treasure this book, and the reason I sometimes bring it down from the shelf to read it again, is because it seems to me to contain a different and valuable insight – the emphasis on social harmony. On page 143 there are several quotations on the idea of harmony from the sages, including Confucius’ teaching that harmony is the most valuable thing, and the selection from Zisi’s Doctrine of the Mean that “Harmony is the universal path.” I understand these teachings to be similar to those of Jefferson, in that they are aimed at how individuals should hope to act – but different because they emphasize balance, discretion and harmony rather than mere self-interest.
Our approach to mediation differs in the same way. The pages in the book that follow these quotations contain statements by CCPIT mediators. These statements are startling to a Western reader, because of the consistent emphasis on the idea of harmony. WANG Fang writes that, in China, “mediation should actively promote the spirits of harmony and cooperation.” LI Huanting understands the purpose of mediation to be “to promote business harmony.” LI Yong says, “Mediation is to develop the qualities of human nature so as to resolve contradictions, and pursue harmony which benefits the society and the individual.” Time and time again, these skilled Chinese mediators reveal that the reason they do their work is not only to get the parties what they want, but also with an eye to building what ZHAO Jie calls “a harmonious society.”
It is as if, when parties meet in a Western mediation room, they contemplate the concept of fa and seek ways to avoid it; while in a Chinese mediation room they contemplate the ideal of li and seek to embrace it.
I am not proposing that Western mediators become Chinese mediators. No one should become someone else. Americans mediate the way they do, primarily because that is what American companies expect them to do. This is of course one of the challenges of mediation that involves American and Chinese companies – they have different expectations of the process and of the people involved. Still, we have much to learn from our Chinese friends.
At the core of my concern is a lesson I learned from my grandmother. When, as a small child, a plate of sweets was passed around the dinner table, I took three. She leaned over and put two back on the plate, whispering to me, “There are others.” I wish that this concept would be considered more actively by Americans when they mediate – in addition to our own self-interest, and not ignoring it, to exhibit some sensitivity to the idea that “there are others,” who have their own legitimate self-interests, and who may be affected by our decisions. To be clear, I suggest this consideration of “others,” not as an exercise in virtue, but a practical way of improving our society as a whole. It is possible, as my older and wiser colleague explained in our Beijing training, that there is a “right way” for business mediations to conclude.
I speak this morning to urge us to listen better to each other. I especially voice the hope that Americans will listen more closely to our Chinese friends. Perhaps the time has come when our exchanges should not simply be Western mediators like Professor Golann and myself coming to Beijing to teach American styles of mediation. Perhaps it is time for Chinese mediators to visit America and train American mediators not only about Chinese mediation, but also about the Chinese outlook on conflict and harmony, and the service that mediation provides, not just to the people at the table, but more broadly to the society in which we live, the world we hope to create, and the lessons we offer to our children.
 F. Peter Phillips is an arbitrator and mediator who practices in the New York City area. He is Adjunct Professor and Director of the Alternative Dispute Resolution Skills Program at New York Law School, and can be reached at www.BusinessConflictManagement.com.