International Journal of Law, Policy and the Family 27(1), (2013), 74–96

doi:10.1093/lawfam/ebs018
Advance Access publication 7 February 2013

TO DIVORCE OR NOT TO DIVORCE: A

CRITICAL DISCOURSE ANALYSIS OF
COURT-ORDERED DIVORCE MEDIATION
IN CHINA

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JIAN WANG*
*School of Foreign Languages, Southwest University of Political Science and Law, 301
Baosheng Road, Yubei District, Chongqing 401120, the People’s Republic of China
Email: [email protected]; or [email protected]

ABSTRACT

Despite the widespread consumer satisfaction with mediation as a less expen-

sive, faster, and more satisfying alternative to litigation, such issues as power
imbalance, neutralist versus interventionist styles and inhibitions on freedom
to divorce continue to generate much controversy in the field of divorce me-
diation. Building on a paucity of data and the transcription thereof, and draw-
ing on Michel Foucault’s works, this article examines the phenomenon of
mandatory divorce mediation in China using critical discourse analysis (at a
macro discourse level) and the linguistic mechanisms employed by mediators
(at a micro-discourse level), and further argues that, more often than not,
influenced by such factors as traditional Chinese values and public policy,
instead of being impartial but acting more like patriarchs of the family, medi-
ators take advantage of their privileged position to talk the disputants into
reconciliation and make personal evaluations about the party who is to
blame for divorce. As a result, freedom to divorce is an illusion in most
cases. Consequently, mandatory mediation provides neither a just nor a
more humane alternative to adjudication, and divorce mediation actually
turns into a process for giving effect to mediators’ values, with the interests
of one or both parties more or less jeopardized.

INTRODUCTION

The study of conflict and conflict resolution has been regarded as ‘the
most significant and rewarding study of the decade’ (Jandt, 1973).
Mediation, as an efficient way of conflict resolution, has been embraced
in western countries and in China as well for various reasons1 (Grillo,

I thank the anonymous reviewers and Editor John Eekelaar for providing valuable comments on an
earlier version of the article. Further, I’d like to thank the judges for allowing me to observe their
hearings. Finally, I am grateful to SWUPL for funding this project through grant number
08XZ-ZD-23.
ß The Author 2013. Published by Oxford University Press. All rights reserved. For permissions,
please email: [email protected]
 JIAN WANG 75

1991; Huang, 2005), and is also readily employed in marital disputes.

In some countries, mediation is a mandatory or compulsory prerequis-
ite to a judicial hearing in divorce cases.2 Numerous data show that
many divorcing couples seem pleased with their mediation experience
and would recommend it to others, for mediators exert every effort to
settle the broken marital relationship peacefully while safeguarding the
interests of the more vulnerable parties in divorce mediation (Kelly,

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1989; Pearson and Thoennes, 1989).
As to divorce cases where the marriage breakdown is irretrievable
and uncontested, mediators deal with such issues as division of
marriage property, custody of children, and visitation. In cases
where the divorce is contested, under the current family law of various
countries, mediators are expected to act as impartial third parties to
the divorce issue, accept that divorce will be granted and render divorce
decree as pleaded, because everybody is free to get married and free to
get divorced as well.3 Most countries have abolished fault-based divorce
in favour of no-fault divorce (Conley and O’Barr, 1998).
However, despite wide consumer satisfaction, numerous reports
from a variety of countries cast doubts on mediator impartiality. For
example, based on tape recordings of mediation in the UK, Greatbatch
and Dingwall (1989) point out that a technique they called ‘selective
facilitation’ is employed by mediators to steer clients in particular dir-
ections chosen by the mediators in an attempt to resolve disputes. This
poses important questions for future evaluation studies and for the
regulation of mediation practice.
In another study, Greatbatch and Dingwall (1991) reveal that
although mediators need to depict their role as formally neutral, they
have extensive power to influence both process and outcome, ie the
content of settlements is not controlled exclusively by the parties,
instead, mediators use power both positively to encourage some options
and negatively to discourage others. The findings do not undermine
the case for seeing mediation as a useful addition to the means by
which people may choose to arrange their divorces. However, they
argue that there is a need for clients to be given much clearer informa-
tion about whether or not to participate, and also underline the need
for mediators to have adequate training, especially in understanding
the practical implications of divorce, and to be made properly
accountable.
Greatbatch and Dingwall (1999) also notice that, although domestic
violence is sometimes mentioned by the disputants, the mediators may
adopt alternative interpretations to treat it as a side issue, consequently
marginalizing domestic violence which otherwise should be given much
consideration. This raises important questions with respect to the
domestic violence policies and procedure developed by the family
mediation agencies. Similarly, based on a detailed study of 15
76 TO DIVORCE OR NOT TO DIVORCE

court-based dispute resolution sessions, Trinder et al. (2010) found that

allegations of harm continued to be marginalized, for conciliators rou-
tinely ignored, reframed, or rejected such allegations unless there was
an existing external evidence to support the claim, and mediators’
handling of allegations reflected a particular understanding of their
institutional role and tasks that centre upon settlement, contact, and
case processing seemingly at the expense of risk management.

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And our survey also reveals that, at least in part, instead of being
impartial, Chinese mediators manipulate the whole process, conse-
quently obstructing the path to free divorce. As mentioned above, pre-
vious literature has, by means of detailed analysis of recordings of
interactions between divorce mediators and their clients, explored
such matters as gender bias, mediator structuring of process and out-
come, the lack of consideration given to the potential rights of the
parties in the attempt to produce an appearance of agreement, and
raised serious questions about the role of mediators and the influence
they exert over the decision-making process. However, up to now, apart
from the common elements shared by all divorce mediation, the char-
acteristics of divorce mediation in China, including issues such as what
elements are peculiar to Chinese divorce mediation, what Chinese me-
diators’ discourse is like, how they manipulate the process linguistically,
and what are the contributing cultural factors, remain largely
unexplored.
This article begins with an introduction to the research method and
relevant theory, followed by a brief description of divorce mediation
practice in China. In the sections that follow, the current study ex-
plores, from both a macro- and micro-perspective, such matters as me-
diators’ power, mediators’ discourse,4 how power affects mediators’
discourse, and how mediators’ discourse is realized linguistically,
based on the transcripts of 48 divorce mediation cases, and reveals
how mediators influence the outcome of divorce mediation and the
decision-making of mediating couples.

THE DIVORCE MEDIATION PROCESS IN CHINA

In China, there are several ways (see Figure 1, below) to get divorced: (i)
divorce by mutual consent. Once a divorcing couple agree on such matters
as their willingness to divorce, the custody of the child/children and
division of family property and so on, the competent organ, the Bureau
of Civil Affairs, will withdraw their marriage certificate and issue a di-
vorce certificate; (ii) divorce granted by court after mediation. If disputants
fail to satisfy the requirements listed in (i), they may file a divorce pe-
tition with a competent court, resulting in the court-ordered compulsory
 JIAN WANG 77
Mode Non-contested Contested petition for divorce
divorce Mediation Trial
Agency Bureau of Civil Court of law Court of law
Affairs
Result tiaojie hehao tiaojie Panjue buzhun panjue lihun
Voluntary Divorce (Reconciliation); lihun lihun (Adjudicated
or tiaojie bulihun (Mediated (Adjudicated Divorce)

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(Mediated Divorce) ‘No-divorce’)
‘No-Divorce’)

Figure 1. Mode and outcome of divorce petition.

mediation. If mediation succeeds in removing the conflict between hus-

band and wife, the divorce petition is withdrawn; alternatively, the court
will grant a mediated divorce by issuing a mediated divorce certificate;
(iii) divorce by judgment. In the case of unilateral petitions, the court will
conduct mediation, resulting in two possible outcomes: Adjudicated
‘no-divorce’, or ‘Adjudicated divorce’ by court verdict dissolving the
marriage.
This article only addresses contested petitions and divorce mediation
conducted by the court.

DATA AND METHODS

Although ‘simulated client data gathering technique’ is suggested for

observing mediation (Kruk, 1998; Wasoff and Dobash, 1992, 1996), this
technique was not used in this study. Rather, the present study is based
on 48 divorce cases, in some of which I acted as attorney, and the data
was collected with the help of the judges with whom we cooperated to
conduct the research project funded by the university to which I am
affiliated. An agreement as regards the use of the data was entered to
keep confidentiality, as is suggested by Frances Rock (2001).
Overall, 48 cases were chosen during the past two plus years, with the
disputants ranging from young, middle-aged, to aged couples, who
were suing for divorce on varied grounds. To ensure neutrality, we
chose 10 cases from the northern part of China, 12 from central
China, 11 from southern and the rest from southwestern China, with-
out taking into consideration the gender of the judges conducting me-
diation. To further explore the mediation model and its impact on the
outcome, we interviewed some of the mediating judges’ colleagues, in
order to find out about their stance on divorce mediation if cases were
brought before them. The two parts of the data, combined with each
other, were expected to reinforce the credibility of the data.
78 TO DIVORCE OR NOT TO DIVORCE

Of the 48 cases, 15 ended with the disputants reconciled at the first

session, with five ending with mediated divorce; 28 cases went to the
second session as the disputing couples refused to follow the mediators’
reconciliation suggestion at the first session. Of these, 10 ended in
reconciliation, and 18 went to the trial process.5 Of the 18 cases
going to the trial process, 12 were granted a divorce, and 6 were re-
jected. In other words, of the 48 cases, 31 fall into the category of

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‘Adjudicated/Mediated “No-Divorce”’, accounting for 65 per cent.
Only 17 cases (35 per cent) were granted divorce.
The method utilized in this article involves the analysis at micro-level
of the interactional features found in talks through an examination of
both recordings and the transcripts thereof. We dealt with the transcrip-
tion at a relatively narrow level, noting only the parts concerning pos-
itioning of overlaps and interruptions, filler speech, vocalized pauses
and silences. Only those mediators’ conversational activities concern-
ing ‘divorce granted’ or ‘divorce not granted’ were located and ana-
lyzed, ignoring voice stress patterns, non-verbal behaviour of the
participants, and those parts which seem meaningless for the purpose
of discourse analysis. Those sections dealing with property division or
child custody are omitted here and will be dealt with elsewhere.
This study is not intended to provide a basis for generalization about
the rules that mediators follow or rigorous statistical data for future
study. The sample size is too small for that. Rather, it is a qualitative
study examining what mediators actually do in divorce cases and its
impact on the disputing couples. Fortunately, we have established a
cooperative relationship with local courts, which will greatly facilitate
our data collection. The results of the research will be submitted to
relevant courts, in a hope that our efforts will be of some help towards
changing stereotypes rooted in judicial practice, trigger relevant im-
provement therein, and ultimately facilitate the delivery of justice.

POWER AND MEDIATORS’ DISCOURSE

1. DISCRETION AND POWER OF MEDIATORS

As is evident from the history of the divorce law of the People’s Republic
of China (PRC), mediators have considerable discretion as to whether
to grant divorce or not. Before 1989, the legal criterion for divorce was
‘whether the emotional relationship is truly ruptured’ (Ma, 2002)
which made it difficult to obtain a divorce, and judges focused primarily
on reconciling the parties (Huang, 2005). After 1989 the situation
changed, for the guidelines by the Supreme People’s Court explicitly
provided that divorce should be granted in 14 situations, resulting in a
soaring divorce rate (Palmer, 2005) and consequently unstable family
 JIAN WANG 79

relationships and rushed marriages (Yang and Qu, 2001). Then the
marriage law was amended in 2000, reducing the 14 situations to 5,6
or 4, to be more exact, for subsection 5 offers no details for granting a
divorce, which consequently allows judges considerable scope for inter-
pretation. The discretion is strengthened further by the requirement
that it is mandatory to conduct mediation before trial. This is perhaps
the most unique aspect of Chinese marriage law and civil law practice

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(Clarke, 1991; Cohen, 1967; Lubman, 1967).
Thus, in contested divorce petitions, judges may or may not grant a
divorce. And even if the mediation efforts prove futile, the courts are
required by law to help the couples reach reconciliation. During the
process, power, as is frequently exercised by judges, is not simply the
one-dimensional ability to oblige another to do something, which she
or he would not otherwise do, as Dahl (1957) described it. Rather, it
involves Bachrach and Boratz’s notion of a ‘mobilization of bias’ (1962);
that is, a set of predominant values, beliefs, rituals, and institutional
procedures (‘rules of the game’) that operate systematically and consist-
ently to the benefit of certain persons and groups at the expense of
others. This is echoed by Michel Foucault (1980) who observes that
any analysis of the exercise of power must have regard not only to the
general forms of power and the mechanisms of control, but also to their
expression in regional and local forms. Therefore, both the ideolo-
gical/mechanical and the macro/micro aspects of power must be con-
sidered if it is to be employed as a useful analytical tool. Further, Foucault
argues that power is not a commodity, a position, a prize, or a plot; rather,
it is the operation of political technologies throughout the social
body. He then looks at how power impacts bodies (Foucault, 1979).
Inspired by Foucault’s thesis, my analysis focuses on local semantics
or meanings of mediators’ discourse, in combination with conversa-
tional analysis, so as to observe explicitly how power is used for certain
purposes.

2. MEDIATORS’ DISCOURSE AND ITS LINGUISTIC

CHARACTERISTICS
One of the promises of mediation is that it permits disputants to speak
for themselves and make their own decisions, without intervention
from external decision-makers. Instead, they can explore alternatives,
create options, and make decisions by themselves, completely in charge
of their own destinies and against the hierarchical, professionalized way
that family law is usually practised (Rifkin, 1984). To ensure the real-
ization of this promise, mediator neutrality is vital (Resnik, 1988).
Although mediators’ attempts to remain neutral is an important
effort, they are doomed to failure (Cain, 1988), for the concept of
impartiality is based on the notion of an observer without a perspective.
80 TO DIVORCE OR NOT TO DIVORCE

But any observer inevitably sees from a particular perspective, whether

that perspective is acknowledged or not (Minow, 1987). Mediators, like
all other human beings, have biases, values, and points of view. They all
have life experiences that influence how they react to other people,
independent of anything the others might do (Grillo, 1991). As
Delgado argues, racial and ethnic prejudice, as well as other sorts of
prejudice, arise as frequently in mediation as in other forms of dispute

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resolution (Delgado et al., 1985).
Thus, social power, as a property of relations between social groups,
institutions or organizations, is defined in terms of the control exercised
by judges over the actions and/or the minds of disputing couples, limit-
ing their freedom of action, or influencing their knowledge, attitudes
or ideologies, and is mainly understood as a synonym for ‘dominance’
which is a form of social power abuse, that is, a legally (or morally illegit-
imate) exercise of control by judges over others for certain purposes,
often resulting in social inequality (see, eg Clegg, 1989; Lukes, 1974;
1986; Wrong, 1979). And this kind of social power, especially partiality,
is embodied through judges’ persuasive and manipulative discourse,
especially via the cognitive structures and strategies involved in these
processes affecting the social cognitions of groups, finally ‘manufacturing
the consent of others’ (Herman and Chomsky, 1988). Our study reveals
that mediators’ impartiality takes the following forms.
(1) Gender bias
Excerpt 1
J: (to the plaintiff) . . . Just because your husband is lazy and does not do
housework, you are divorcing him? As a woman, you should do more house-
work. I do little housework. Shopping, cooking, washing dishes, washing
clothes, etc., are all left to my wife. But she does not sue for divorce. So it is
not a good reason. As a woman, you should be more tolerable to man. Man is
always like that . . . . (Case No. 17)

In micro-social settings, people, as a result of their physical or social

proximity, have the opportunity to interact, and consequently develop a
type of informal law or norm, expecting what is the right way of acting,
departure from which is wrong. In Excerpt 1, mediator bias is promin-
ent from the use of the norm (a good woman should do housework and be
tolerable) and citation of his personal experience so as to consciously or
unconsciously refute the female plaintiff’s view. Linguistically speaking,
‘should be/do . . .’ is an imperative sentence which gives anything from a
command or order, to a request, a suggestion, direction, or instruction,
with its aim to get the audience to either do or not do something. Here,
the mediator used ‘should do/be . . .’ to comment on what a good
woman is like and achieve a desired result: making the woman com-
promise. This echoes what Council executive secretary Rita Chiu Lo
 JIAN WANG 81

Chiu-pak says, ‘Once a mediator has established a relationship with his

clients, he can’t be impartial . . . .’.7
Although gender bias throughout the mediation process has been
reported in various writings, it is much more prominent in my research,
for the judges sometimes point out, explicitly, that the female should
assume a subordinate social role, as is shown in Excerpt 1, and in other
cases as well.

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(2) Biased towards one party with (dis)affiliative responses
According to Conroy (1999), affiliative responses are those that
convey solidarity, cohesion, mutual affirmation, or group affinity,
while disaffiliative responses are those that convey disapproval or deri-
sion and are used by speakers to dissociate themselves from speaker’s
views (Clayman, 1992). The affiliative or disaffiliative responses of me-
diators may have an impact on displays of neutrality because of the bias
conveyed by such turns.
Excerpt 2
M: . . . I work all the day and earn money, but when I get home only to find
that she is not home and no one to make dinner for me m
J: nwell, we are not here
to complain. (to the Female) XXX (name of the female), tell me how you
took care of him in the past.
F: Ok. . . . (Case No. 19)

Just as ‘footing’ can help an understanding of mediator neutrality

(Heisterkamp, 2006), it also contributes to the glossing of partiality
displays via the perspective from which mediators speak. In Excerpt 2,
the mediator expressed the viewpoint of the collective group by the use
of ‘we’, leaving an impression that she was neutral and no bias was shown
to one party or the other. But the shift in footing (ie from ‘w’ to ‘me’,
instead of ‘us’) and her interruption of the plaintiff’s turn, reveal that
she was affiliating with the defendant, for she interrupted the plaintiff
and offered the defendant a chance to counterclaim.
Excerpt 3
J: (to the plaintiff) . . . You said you never felt a cozy atmosphere of a real
family, didn’t you? I am afraid you are speaking insincerely, for you men-
tioned you and your husband lived happily for the first few years of
marriage . . .
F: (3s) We did live happily for a couple of years.
J: So . . . (Case No.13)

In excerpt 3, the judge used a disaffiliative response to rebut the

plaintiff’s claim. From the data we collected, 22 cases (accounting for
82 TO DIVORCE OR NOT TO DIVORCE

46 per cent) portrayed mediators’ affiliation or disaffiliation with the

disputants, which to some degree revealed they were biased.
(3) Representing one party
Mediator neutrality is also impaired by interactionally representing
disputants’ positions. Although a mediator’s role is viewed as one of
understanding and helping the parties rather than judging them, it is
unavoidable that they stand for one party and frequently meet with one

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of the parties separately, often without subsequently telling the oppos-
ing party what transpires. Garcia (1995) points out that in some in-
stances, mediators ‘replace’ a disputing party and placed themselves
in the position of representing a party by supporting or opposing dis-
putant positions. In our survey, we also find this noticeable, as in
Excerpt 4 where the mediator interrupted the defendant, and then
made an argument in support of the defendant’s case.
Excerpt 4
P (W): He always comes home late drunk, saying he is engaged in lot of social
affairs, not taking my feelings into consideration at all.
D: I am really engaged in a lot of social affairs. I have no choice m
J: nStop, XXX
(D’s name).
D: Ok.
J: (to the plaintiff) You said he always came home late, right?
P: Yes.
J: He has got a lot of social affairs, hasn’t he?
P: Maybe.
J: MAYBE? Who is the bread-earner in your family? It is HIM, RIGHT? He is
sacrificing his health and life to sustain the family, RIGHT? It is his fault to
come back home late, but then again, what he does is all for the family, so
you should be considerate, instead of being particular.
P: (30 s) I see . . . . (Case No. 11)

It seems the mediator deprived the defendant of his floor, but actually,
the mediator extended and elaborated the defendant’s position by
raising two tag questions. Ehrlich (2001) and Woodbury (1984) explore
the category of controlling questions, and find that ‘yes-no’ questions
with a tag belongs to ‘confirmation-seeking question’ which requires
the addressee to confirm the pseudo-proposition contained therein.
That is, the question ‘Who is the bread-earner in your family? It is HIM,
RIGHT?’ conveys the mediator’s expectation that his belief, whatever it
is, will be confirmed; further, this question form belongs to accusatory
‘yes/no’ questions, with the function of criticizing the addressee for
 JIAN WANG 83

failing to recognize the proposition contained in the question

(Gibbons, 2003). Thus the mediator’s intervention (and as such
acting as the representative of the defendant) compensated for the
defendant’s loss of power when the mediator silenced him.
Consequently the plaintiff has to accept the rightfulness of the defend-
ant’s getting back late, with her reason for divorce deconstructed. The
mediator’s criticism is strongly evidenced by the capitalized words, and

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this kind of representation of one party in mediation process is quite
common (accounting for 27 cases).

3. FACTORS INFLUENCING MEDIATORS’ DISCOURSE

So, in China disputing couples who go to the divorce court have to
undertake a forced mediation conducted by the judge, subject to the
court’s discretion. They have to accept a solution, which is more often
than not forced on to them. Although many lawyers and judges give
positive comments on the use of compulsory mediation as an alterna-
tive way to solve divorce issue (Li, 2004), actually, compulsory medi-
ation in divorce case turns out to be a paradox,8 as is explained by the
English FLBA (Family Law Bar Association): ‘To talk in terms of “com-
pulsory mediation” really is rather a contradiction in terms, because
mediation, as we all know, is a voluntary process which both parties have
to come to . . .’.9 So mediators will exert every effort to discourage cou-
ples from divorce, and the mediation process is doomed to be a process
for the mediators to exert power and to carry out their values. Several
factors explain why judges are more than willing to reconcile disputing
couples and reluctant to render a divorce verdict.

A. The state policy of ‘Building a Harmonious Socialist Society’

In addition to institutional structure and ownership, the larger social
political context in which mediation is conducted is also viewed as the
locus of ideological origin. At the Sixth Plenary Session of the 16th
Central Committee of the Communist Party of China in 2006, the
state policy, ‘Resolution on Major Issues Regarding the Building of a
Harmonious Socialist Society’, was established.10 Thus, ‘harmony’ has
become the major policy goal in China, and according to our interviews
with the judiciary, whether judges adopt ADR (alternative dispute reso-
lution) to finalize cases peacefully has been a key evaluating factor for
their performance. This is true regarding divorce petitions. Mediators
will make every effort to reconcile the disputing couples, finalizing
divorce cases peacefully, without resulting in violence or death, so as
to comply with the said ‘Resolution’ to establish a harmonious society.
From our interviews with mediating judges, we learned that some tra-
gedies occurred as a result of a verdict of ‘adjudicated divorce’. There
84 TO DIVORCE OR NOT TO DIVORCE

were several divorce petitions where one party (usually the male) was
unwilling to divorce while the other party insisted despite the judge’s
efforts to reconcile them, and the court had to render an adjudicated
divorce. The parties accepted the judgment, but tragedy arose as the
disputing couple stepped out of the court when one party (usually the
male) pulled out a dagger and stabbed the other party. When it was the
female who objected to divorce and the court rendered an adjudicated

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divorce, the female would commit suicide by jumping into river or
throwing herself from window, or in some other way. Thus safety
and/or peace is of highest priority in divorce mediation, and the
courts will always try to reconcile the parties instead of rendering a
divorce judgment, especially when the disputants are stubbornly
biased, extreme, or otherwise psychologically unstable.
Take one of the 48 cases (Excerpt 5) where the defendant was ex-
treme and passionate. The mediator conducted mediation a couple of
times, but the plaintiff still refused to reconcile, and the defendant
appeared to be out of control emotionally and said he would kill the
plaintiff.
Excerpt 5:
J: (separately to the plaintiff) Well, if I were you, I would not care whether or
not to get divorced, for you two do not live together. He says he will kill you
if you divorce him, and it seems he is serious. We cannot ensure your safety
if we render a divorce decision. To tell you the truth, it is rather easy for us
to render a divorce judgment. The reason why I bother to talk you into
reconciliation is all for your good.
P: (20s) I agree to reconcile. (Case No.37)

In Excerpt 5, the judge used the discourse marker ‘well’ ” which plays as
a device for argumentation and confrontation, to portray his intentions
of disagreements and challenges and add tone and force to his utter-
ance, then followed up by stating the disadvantageous effects of divorce
and the benefits of reconciliation from the complainant’s stance.
Finally, the complainant yielded and agreed not to divorce, avoiding
another potential tragedy. Four other cases of the same character
reconciled peacefully. Our interviews with other judges reinforced
our conviction that safety and/or peace is of the highest priority in
divorce mediation.

B. Convenience and Judicial Economy

The mediating judges can benefit greatly from mediation. There is no
need for enforcement, no risk of being appealed against, and even no
need to write judgments. Some mediators take pride in saving a broken
family. As a result, although judges will not make an all-out effort to seek
 JIAN WANG 85

mediation, they have little reason not to pursue it when the opportunity
arises, especially with all the benefits that mediation entails (He, 2009).

C. Traditional Chinese Culture Regarding Marriage and Family

In recent decades both cultural and linguistic anthropologists have
moved in the direction of seeing culture as located in social practices
(Sherzer, 1987). A family is a miniature replica of the society in itself,

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based on marriage. The importance of family lies in the fact that it
cements a nation together by providing it a past, a present, and a
future. It is a place where individuals can seek comfort and warmth,
and, most importantly, values, such as patience, care, understanding
and commitment are passed on and make possible their survival and
growth.11
So, just as westerners (at least a portion of them) might choose to go
to the church to get married and most view marriage as a decent thing,
the Chinese people cherish marriage all the more, as is evidenced by
numerous Chinese sayings such as, ‘shi nian xiu de tong chuan du, bai nian
xiu de gong zhen mian’,12 ‘Ning Chai qian zuo miao, bu chai yi men qin’
(meaning ‘one would rather destroy a thousand temples than dissolve
a marriage’).13 People assume that upon marriage, the relationship
between the husband and wife is no longer merely a matter between
the couple, but rather involves other family members as well.
After all, it is inevitable for people to have conflicts, but departure is
not the only way to resolve the problem. So, if something goes wrong
with marriage, it is advisable to reconcile the couple, instead of persuad-
ing them to sever their relationship.14 For if marriage dissolves, the
family will disappear and consequently the nation will suffer from in-
stability, violence, and other misfortunes. Ethically speaking, Chinese
people attach much importance to the family, viewing it as an integral
part of a state, and viewing divorce as the tragedy of a family, of a society
and even of a country,15 which is reinforced by numerous reports about
negative impacts of divorce on the children and families in foreign
countries (Barczak et al., 2010). This viewpoint is not only prevalent
in the mainland, but in some other places influenced by Confucianism.
Hong Kong, for instance, where the rate of divorce has been increasing
as everywhere else, still enjoys a marriage culture rather than a divorce
culture. Young and Fok (2005) argue that professionals in Hong Kong
should strengthen and save marriages where possible, and if divorce is
unavoidable, to help couples resolve problems with minimal acrimony.
Influenced by the Chinese value that it is vital to maintain the integ-
rity of the family despite the fact that their marriage is already in trou-
ble, mediators try to reconcile couples employing various tactics. As a
result, although China has gone through a Socialist revolution, the
Cultural Revolution, and the Socialist Reform since 1978, some core
86 TO DIVORCE OR NOT TO DIVORCE

aspects of Chinese culture have persisted (Chang, 2006). So, avoiding

divorce has become an important part of socialist ideology.

D. Influence of a Patriarchal System

In China, the authorities are viewed rather like a father who stands at
the top of the patriarchal system, always giving instructions as to how to
act appropriately. So when a marriage relationship goes awry, the me-

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diators take it as their responsibility to reconcile the disputing couple.
What is prominent from the data is that mediators, like a patriarch of a
family, will always work to keep the party at fault in line and make per-
sonal evaluations, for example, by scolding and blaming the party who
is considered to be at fault in the divorce.
In the following example, the wife (defendant) was a little-educated
woman from the countryside who was badly at odds with her
mother-in-law, while the husband (plaintiff) was an obedient son, an
engineer of a construction company, seldom staying at home. The
plaintiff was under great pressure as a result of the disharmony between
his wife and his mother, and finally brought a divorce petition, which
the wife strongly resisted. The judge made the following remarks:
Excerpt 6
J: (to the weeping defendant who appeared to be powerless and fragile)
Stop crying, ok? After all, it has not been decided yet whether to divorce
or not. So what is the use of crying now? (The defendant stopped crying
and shedding tears, but still sobbed) Well, you must have figured out why
your husband brought the suit. Your crying indicates that you love your
husband. He is an obedient son, so, if you really love him, try yourself to
improve the relationship with your mother-in-law. After all, as a junior,
you should respect your senior. This is a traditional Chinese virtue . . . .
...
J: (to the plaintiff, separately) You must have noticed that your wife loves
you, for I was informed by your neighbours that every time you came back
home, you and your wife would close the door and had good fun, which
shows you two love each other. How can you divorce her because your
mother is at odds with her? To be a docile son is greatly appreciated, but
when love is concerned, you should be manly, pursue your happiness and
try to dismantle the tangle between your mother and your wife via certain
means other than pleading for divorce . . . . (Case No.20)

Excerpt 6 is a typical example of the patriarchal culture. The judge

blamed the defendant for disregarding the Chinese virtue (respecting
the senior, in this case, her mother-in-law), and suggested how to save
her marriage; besides, the judge scolded the plaintiff for foolishly trying
to divorce a woman who loves him and whom he loves, urging him to
solve the problem in other ways. Finally, they reconciled.
 JIAN WANG 87

4. DISCUSSION
As is shown in the excerpts above, mediator neutrality is a mirage, and
mandatory divorce mediation provides neither a more just nor a more
humane alternative to the adversarial system of adjudication and, there-
fore, does not fulfil its promises (Grillo, 1991). And its impacts can be
summarized in the following two aspects.

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A. Mediation is Detrimental to One Party
The presence of the mediator, and the ideology of mediation, can in-
fluence not only the organization and content but also the tone of
discourse between parties and mediator. Consequently, especially
with mediators pushing each side to compromise, mediation
diminishes the temptation and the ability to behave antagonistically
rather than cooperatively, for ‘. . . it’s an atmosphere where people
are there for some reason or another, maybe it’s because there’s an-
other person in the room who’s neutral. The climate is there for com-
promise . . .’ (McEwen et al., 1994). Take the following example:
Excerpt 7
J: . . . have you considered the safety of your child and yourself if you persist
in divorce? I cannot guarantee that he will not act on his words, for we
have encountered such tragedies before . . .
F: (40 s) well, I agree to reconcile. (Case No.38)

Excerpt 7 depicts the plight that women will encounter because they are
not as physically powerful as men. Mrs. Z has been in a marriage in
which she has been physically abused for five years. She and Mr. Z have
one boy, whom Mr. Z has never injured. She dared not break up the
marriage, for Mr. Z has threatened to beat her and the child if she
divorces him. When she separated from him, he tried to find her and
continually harassed her. Each time he beats her, he shows great
remorse afterwards and promises not to do it again. He is a man of
considerable charm, and she often forgives him. Mrs. Z is at a loss as
to whether to leave her husband or not. She is worried about what will
happen, economically and physically, to her children and herself. What
bothers and traumatizes her is the severe confrontation with her fierce
husband, and the safety of her child and herself. In this case, the
mediator’s suggestion once again gets the better of the woman’s con-
sideration. However, whether reconciliation – a seemingly beneficial
result for her and her boy – justifies the mediator’s intervention,
remains to be seen.
Again, our survey reveals that mediation events always move indeci-
sive clients to make decisions they have been reluctant to make. In
another typical case (Case No. 30), the plaintiff, Mrs. L used to be an
88 TO DIVORCE OR NOT TO DIVORCE

office clerk, but later quit her job and became a caregiver of her hus-
band and children, for her husband earned enough money to sustain
the family. In the first few years, she enjoyed the job-free life, but in-
creasingly felt that she and her husband were growing apart, for her
husband came home late and less frequently. Later she found her hus-
band had an affair with another woman. She sought a divorce, to which
her husband objected. During the mediation process, two things were

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brought prominently before her: her right to seek her individual inter-
ests was by no means wrong, but her departure from the marriage would
definitely turn the family or her children’s life upside down, and she was
too old and unskilled to find a decent job to survive and raise her chil-
dren. Guilty, frightened, and uncertain of the future life, she had to
follow the mediator’s reconciliation suggestion. From our subsequent
interview, it was agreed that mediation could be useful, even trans-
formative, for it saved Mrs L’s family. However, significant possibilities
of damage to Mrs L also exist, for she finds herself traumatized by a
‘forced’ reconciliation and suffers the risk of entering into such a
‘forced’ reconciliation, for she has no alternatives in such an intimate
setting in which she is very vulnerable.
According to some feminist scholars, women have a more ‘relational
sense of self’ than do men. For example, Carol Gilligan describes two
different, gendered modes of thought: the ‘female mode’, which is
characterized by an ‘ethic of care’, emphasizing nurturance, connec-
tion with others, and contextual thinking, and the ‘male mode which is
characterized by an ‘ethic of justice’ emphasizing individualism, the use
of rules to resolve moral dilemmas, and equality (Dubois et al., 1985). In
Gilligan’s view, the male mode leads one to strive for individualism and
autonomy, while the female mode leads one to strive for connection
with and caring for others. The ‘ethic of care’ has also been viewed as
the manifestation of a system of gender domination as shown by the
aforementioned examples.
So the neutral and justifiable image of mediation is greatly
compromised; rather, it is a process detrimental to the party who is
somewhat less powerful, physically or psychologically, and whose pos-
ition is not in line with the mediator’s ideology. A survey of the medi-
ators’ practice during the mediation process further strengthens this
conclusion.

B. Mediation is a process that Applies Mediators’ Values

Folger and Jones (1994) claimed that the mere entry of a third party
into a conflict will influence the outcome of the dispute. Our survey also
reveals that mediators frequently use varied skills and techniques to
discourage disputants from dissolution, turning the whole mediation
process into one that applies mediators’ values.
 JIAN WANG 89

Excerpt 8
M: . . . we live at the place where she works, so I have to travel a long way to
work everyday. When I get home late in the afternoon, hungry and tired,
she is still at the labm
J: nWell, she is no lazybones . . . she is at work,
right? And you two are busy with work. So no one is at fault about that.
Mrs. XX, what do you think?

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F: Once the experiment starts, I cannot stop it until it finishes . . .
(Case No. 39)

In Excerpt 8, the husband wants to divorce because of lack of love and

care from his wife. As the power of the mediator is not always
openly acknowledged but is hidden, the mediator’s interruption
(a hidden power) deprives him of the right to depict the state of affairs
supporting his claim to divorce, and introduces a topic that contradicts
his arguments, subtly endowing the wife with the power to speak so as to
rebut the husband’s claim. Thus, the party whose claim is contrary to
the aim of the mediator may feel less in control of the mediation
process.
Although power is a phenomenon influenced by many factors and
cannot always be translated directly into a satisfactory outcome for the
power-wielder (Fisher, 1983), a skilled mediator armed with the proper
technique and precautions can go some way towards addressing some
of the potential power imbalance problems before and during the me-
diation, and use it as a means to carry out his values, for mediation is
actually a process of ‘conflict management’ rather than ‘dispute reso-
lution’ (Milne and Folberg, 1988).
Excerpt 9
M: . . . I want to enjoy ordinary family love as other people do. I just want to
have a good meal ready while I get home from work, to have somebody to
take care of me when I am sickm
F: nDidn’t I take care of you when you were
caught in the rain and caught a cold last month? Contrary to what you
said, I often do the cooking and housework []
M: [] to have somebody to take care of me when I am sick, to have someone to
listen to me as I am unhappy with my work, to m
F: ndidn’t I listen to your complaint?
J: (to the male) I am a man myself, so I know what is on your mind. But don’t
try to be so particular, OK? . . . (Case No. 9)

In Excerpt 9, the husband wants to lead a typical and ideal Chinese

way of life: he is responsible for earning for the whole family, while the
rest is left to the wife: being a house-keeper, caretaker of the family,
90 TO DIVORCE OR NOT TO DIVORCE

a ‘punching bag’ when the husband is angry, in a word, a repository of

various roles. As the husband speaks, the wife interrupts and deprives
him of the floor, but the mediator does not intervene. The husband has
to yield his turn. As the wife finishes, the husband picks up his floor
again, trying to finish his statements when the wife once again inter-
rupts. Again, the mediator does not intervene, but lets her finish. Then
he turns to the husband and tells him not to be so particular and find

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fault with his wife. This is unusual, for, as Garcia argues, one of the
structural features that is critical to the linguistic distinctiveness of me-
diation is that mediation sessions usually allow each disputant to tell his
or her story, while requiring the other party to wait quietly for his or her
turn to speak (Conley and O’Barr, 1998). This case is similar to Excerpt
1, only that in Excerpt 1 it is the wife who is biased. The reason why the
mediator was indulgent to the wife and comment negatively on the
husband is that he wanted to reconcile the couple. Our survey reveals
that mediators frequently imposed hidden agendas on one party, just
because mediators disapprove divorce.
Excerpt 10
J: Since you are in your silver marriage now, why bother to get divorced? Just
as the saying goes, ‘shao shi fuqi lao lai ban’.16 The relationship between a
husband and wife is similar to the foot and shoes. When you feel that your
feet hurt, it may be that some sand gets inside your shoes, you would not
throw away the pair of shoes just because of the sand in it, will you?
(Case No.1)
In this typical case where an aged couple sought for divorce because
of some trivial things, the judge conducted mediation, metaphorically
comparing the relationship of a couple to that of shoes and feet, and
pointed out that it was unwise to throw away shoes just because the feet
felt hurt by sand slipping into the shoes. Later, the judge went to visit
the couple several times and finally they reconciled and even had a
better relationship. Another nine cases show that judges suggesting
how couples should spend the rest of their life, stressing the silliness
of divorce at the time of their silver or golden marriage; while for
middle aged or young couples, six cases reveal that the judges always
treat the quarrels as being common for young couples, using their own
examples to illustrate the truth of the saying ‘Yi ri fuqi bai ri en’.17
(I doubt the truth of the judges’ story, for some judges used the same
personal story, but the trick does work!). As regards couples with
children, judges would quote from Chinese songs and sayings (like ‘A
child without his mother or father is like swaying grass in the wind’) to remind
them what might be the best outcome for the children for whom they
have responsibility. Thanks to mediators’ efforts, most families are
saved.
 JIAN WANG 91

But in a sense, mediation provides an opportunity to bring the les-

sons of context and subjective experience to dissolution proceedings
where disputing parties’ legal rights are not central. Instead of relying
solely on abstract principles and rules, disputing parties and mediators
can concentrate on the reality of complex relationships. Take Rifkin’s
words, ‘precedent, legal rules and a legalized formulation of the facts
might be seen as irrelevant to the mediation process and an unneces-

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sary constraint on the mediator’ (Rifkin, 1984). Individuals could be
seen in relation to one another, and morals as “a question of respon-
sibilities to particular people in particular context” (Karst, 1984). So in
a particular context where avoiding divorce and how to prevent divorce
has become an important part of socialist ideology, it is hard to say
whether the rights of individuals will be guaranteed if mediators exert
every effort to carry out their values.

CONCLUSION

The focal point of the research is to examine the court-ordered divorce

mediation process in China in respect to its neutrality, linguistic char-
acteristics, mediators’ discourse and its contributing factors, and how
power influences mediators’ discourse, from a micro- and macro-
perspective.
Numerous foreign accounts report widespread consumer satisfaction
with mediation as a less expensive, faster, and more satisfying alterna-
tive to litigation (Bohmer and Ray, 1994; Clarke et al., 1989; Grillo,
1991; Hughes 1995; Kelly, 1989); meanwhile, various research findings
reveal that power inequality does exist, and the ideal of the neutrality of
the mediator seems to be a mirage (Greatbatch and Dingwall, 1989,
1991, 1999; Shaffer, 1988; Trinder et al., 2010). Our survey also reveals
that mediators, generally held out to be a third, impartial, purportedly
neutral person, are not impartial at all.
Foucault (1979) argues that power impacts bodies, for power rela-
tions have an immediate hold upon them. In the field of divorce
mediation, mediators, as specifically trained professionals, rely on the
power relationship in the institutional setting, and are influenced by
the traditional Chinese value that the family is an integral part of a
society and a state that knows that the maintenance of family integrity
means much to society. Therefore, taking these factors into account,
they will not simply announce a divorce verdict, but rather exert a great
deal of power to manipulate the whole process, set agendas and employ
various tactics to reconcile disputing couples.
So during the process, mediators inevitably take the viewpoint of the
party who objects to divorce, by acting as his/her representative. Thus,
92 TO DIVORCE OR NOT TO DIVORCE

mediators are sometimes grossly biased, more like patriarchs of the

family who work to keep in line the party at fault and make personal
evaluations of the party who is to blame for the divorce, which conse-
quently and inevitably results in a palpable shift of power to the party
with whom the mediator agrees, to the detriment of the party who is less
powerful, physically or mentally. Our survey reveals that a particular
interaction or dynamic exists between a mediator and the disputing

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couple, and it is always the former that prevails. So as mediation pro-
ceeds, mediators set the rules regarding who talks, when they may speak
and what they may say, thus, the impartial image of mediators is grossly
impaired.
As is mentioned above, of all the 48 mediation cases, 31 (65 per cent)
end up with reconciliation or Adjudicated No-divorce, which was desir-
able for mediators. In a sense, it is a great success; after all, mediators
saved 31 rocky marriages, at the same time confirming their beliefs and
values. But our survey shows that mandatory mediation can be detri-
mental to men in the same ways that it harms women, especially when
their demands are contrary to mediators’ ideology and deeply rooted
traditions. But more women than men share an emotional orientation,
worldview, and economic circumstances, for women are often expected
to act in a particular way because they are women (Williams, 1989).
When mediation is the prototype for dispute resolution, the societal
message is that a good person is one who follows the rules, and who
cooperates, communicates, and compromises. Because of the stereo-
type imposed on the female, the female appreciates cooperation more
than the male and compromises more readily; consequently, manda-
tory mediation overrides real women’s voices where they say that co-
operation might, at least for the time being, be detrimental to their lives
and the lives of their children.
Despite the great success of mediation in some countries, the linking
of divorce and mediation, whilst presenting important opportunities,
also carries dangers of a stereotype that divorcing parties should be
forced to reconcile when there is at least some hope which should
not be ignored.
As is seen from the above analysis, Chinese mediation practice shares
some similarities with that in other countries, eg on the macro-level,
power asymmetry, partiality and/or gender bias, etc. are exhibited
throughout, and on the micro-linguistic-level, such techniques as inter-
ruption, reformulation, affiliative response, etc. are usually employed.
However, in the Chinese context, the mediator, influenced by trad-
itional Chinese virtues and social ideology, will exhibit patriarchy
much more explicitly while in other countries, mediators will do this
implicitly or indirectly, by omission rather than direction.
The negative effects of power inequality and linguistic devices em-
ployed in the mediation process has forced people to consider whether
 JIAN WANG 93

to change our mind about divorce mediation (Dingwall, 2010).

Nevertheless, we have to admit that, despite the apparent potential
harm to the disputing couples, all the means used eventually serve
the ends of mediation, which is to resolve disputes peacefully. So it is
not my intention to criticize the Chinese judges for acting so abruptly or
seemingly unjustly in the mediation process. Rather, my intention is
only to point out that mediation cannot simply operate as a process

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outside a wider social and cultural environment. This context always
enters into the process and helps to shape it, regardless of the profes-
sional claim of the mediators.

NOTES
1
It is believed that although the western ADR model has its origin in the USA, it is not as
widespread as in China. Yet, even 2000 years ago, inspired by Confucian ideas, “NO SUIT”
(focusing on the settlement of dispute by means other than suit) was a deeply rooted tradition
for ancient Chinese and it is still customary for people to avoid suit nowadays when disputes arise.
2
See: CAL. CN. CODE §4607 (West 1983 & Supp. 1990; Chapter 23) and other 13 states where
mediation is mandatory; Article 32, Family Law of PRC 2001; Section 20(3), Finnish Marriage Act;
Article 255, French Civil Code; Section 99 Ehegesetz (Matrimonial Act, Austria) (as amended in
1999; and repealed by the Federal Act on Mediation in Civil Matters which came into force on 1 March
2004 and, established the legal framework for mediation in all private law areas, including family
law), etc.
3
See: Article 2, Marriage Law of PRC 2001; Section 303(c), Section 305, etc., Uniform Marriage
and Divorce Act of 1970 (USA).
4
In the sections that follow, ‘judge’ and ‘mediator’ will be used alternatively, for the mediator in
the court-based mediation is actually the judge who will later conduct the trial process if mediation
fails.
5
According to the provisions of present Marriage Law of PCR, where disputing couples reject to
reconciliation after court-ordered mediation, the court should render a judgment accordingly.
6
See: Section 32 of the Marriage Law of the PRC, amended in 2000.
7
http://lists101.his.com/pipermail/smartmarriages/1999-October/002343.html
8
http://www.studa.net/xingfa/090930/15150197.html;
http://theory.people.com.cn/GB/49150/49153/4703680.html.
9
http://www.publications.parliament.uk/pa/jt200405/jtselect/jtchilcon/100/10004.html.
10
See: http://english.cri.cn/2946/2006/12/07/[email protected], for more details.
11
http://www.buzzle.com/articles/importance-of-family.html.
12
The literal meaning is ‘a decade makes a encounter, and a century makes a couple’; or ‘A
Decade’s hardship in the world could be exchanged for an occasion while they can travel on the
same ship, while a century’s tribulations on earth could be in return for the marriage of the two’,
indicating it is good luck or fate for two people to get married.
13
This is a folk custom and a manifestation of Confucianism. A temple is a place where the
homeless (i.e. the monks) live for spiritual pursuit. If temples are destroyed, the monks
would have no place to live. So in Chinese eyes, to destroy a temple is a great sin, for which one
would get paid back. Similarly, to dissolve a marriage is also a great sin that a decent person would
not do.
14
Some people argue that this perception has become old-fashioned, and dissolution of mar-
riage is no longer an injury to the disputing couple. See: http://wenda.tianya.
cn/wenda/thread?tid¼520f926d4aa5e0a1.
15
According to the report by China News Net, the majority of the juvenile delinquents in China
are wandering minors. Till 2009 there are about 10,000,000 wandering minors in China, mostly
coming from broken families whose parents are divorced. See: http://wenda.tianya.cn/wenda/
thread?tid¼6d20838fdd6e3da5 (2009- 10-05) for details.
94 TO DIVORCE OR NOT TO DIVORCE
16
The saying means: when the couples are young, the better-half is a passionate lover; when
they turn old, the better-half makes good company.
17
The saying means: ‘A day together as husband and wife means endless devotion the rest of
their life’.

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96 TO DIVORCE OR NOT TO DIVORCE

APPENDIX

The following transcription convention is applied to the excerpts in this article:

CAPITALS: Loud speech
(4s): A silence whose length is specified in seconds (here 4 seconds)
[]: Speech that overlaps with that of another speaker

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Italics: Stressed words or phrases
— —: An interrupted utterance and its resumption, as in:
Plaintiff: he said—m
Judge: nsaid what?
Plaintiff: —said he would not let me live a quiet life after divorce
mn: An interruption occurrence, as in:
Defendant: Would you in my position m
Judge: n I am not here to answer
questions - you answer MY question.
...: The rest of the information is omitted
J: Judge
F: Female
M: Male