’Control’ And ’Complicity’: Analysis Of Influencing Factors On Judicial Mediation

In our country, judicial mediation and judicial trial exist together asimportant ways to resolve the disputes. The process of judicial system reformhas been around the changing proportion of the mediation and trial in practice.The rough development process of judicial mediation is through prosperity,depression, and Renaissance three different times. We can not help but thinkthrough this provoking social phenomenon: why does the historical destiny ofjudicial mediation present several ups and downs? What are the influentialfactors in judicial mediation on earth? This paper insists on this problemconsciousness, the influential factors in the judicial mediation (all kinds ofpower and the relations among them) as the research object, the specific analysison how the various power enter in the judicial mediation interior and theoperation mechanism which the various power realizes their discretionarychoices.This paper uses the sociology theories of the French philosopher,sociologist, anthropologist Pierre Bourdieu (1930-2002), specially conceptualanalytical tools of "field","survival mentality","capital","strategy" andthe relationalism, symbolic and reflective research methods; From a judicialmediation case, based on analysis of the influencing factors hidden in the case,and then with diachronic and synchronic perspectives, analyses of the relatedfactors which affect judicial mediation ups and downs. In addition to the fulltext and conclusion, the main body part includes four chapters.The first chapter, using judicial mediation case as the breakthrough point,analyzes the factors in the case. First of all, trying to reveal how the actors(the judge and the parties) reach an agreement that the choice of voluntary intojudicial mediation procedure, as well as the deep roots in the choice beforethe judicial mediation procedure, in the face of the judicial mediation and judicial trial as two ways to settle disputes. Secondly, after the actors intojudicial mediation program, the use of legal language and daily expressionreveals the actors behind the different language cognitive style and mental space,and the power relations among actors. Finally, the agreement of judicialmediation as the result is not completely the embodiment of the parties’autonomy, which contains "symbolic violence", and it makes political powercoming into the judicial mediation process under the potential way.The second chapter, in a diachronic perspective, interprets the factorswhich caused judicial mediation to go through several ups and downs. In thebackground of the judicial system reform, the historical developmental processof judicial mediation is divided into two stages: firstly, from1988to2002,the judicial mediation had went though thriving to declining; Secondly, from2003to2012, the judicial mediation presents renewal. The development trendof judicial mediation presents ‘U’, which reflects that the social factors(social power), judicial factors (judicial power) and political factors(political power) have effect on the judicial mediation ups and downs. Bourdieuthought that power is the driving force of the field. The social field, judicialfield and political field become the influential factors of judicial mediation.But why you choose the judicial mediation as three fields’ connection, and whattheir interaction in judicial mediation is, will be interpreted in this chapter.The third chapter, in a synchronic perspective, analyses the factors whyactors choose judicial mediation as the strategy. The actors in the guidanceof habitus, based on the consideration of personal profit, make the judicialmediation program strategy. In fact, the parties and the judge in the judicialmediation are in controlled and yielded situation respectively, their strategiesare not all the results of rational thought, even illusion products. It can burstthe mists of the parties’ autonomy and reconstruct the image on the judge. Thissituation reflects that the social factors, the judicial factors and politicalfactors play an important role in the process of judicial mediation. The fourth chapter, discovers the mutual relationship of various factorsthat have influence on ups and downs of judicial mediation. As the influentialfactors of judicial mediation, all kinds of power present "control" and"conspiracy" relationship."Control" relationship are mainly reflected in threeaspects: Firstly, the parties in the period that parties’ choices reach anagreement of judicial mediation, are subject to the judge’s control; Secondly,the judge being yielded situation, is rooted in the political field, judicialfield and social field dominating; Thirdly, the relevant judicial policy changeabout judicial mediation rooted in the control relation between the politicalfield and the judicial field."Conspiracy" relationship are reflected in thejudge’s attitude when he faces the control of political field, judicial fieldand social field, and conspiracy relation among political field, judicial fieldand social field.The conclusion part, combining these factors on the judicial mediation inthe diachronic and synchronic analysis, proposes the development direction ofjudicial mediation in the future reform of the judicial system. Firstly, thejudicial mediation as the important way to resolve the disputes will exist fora long time in the judicial practice, in continuous influence of political field,social field and judicial field, Secondly, the judicial mediation as our speciallitigation activities, will transform from "ideological work type" to "programsafeguard model" gradually, in programmed, standardized and institutionalizeddirection; Thirdly, in order to achieve the effective restriction on litigationjurisdiction, the judicial mediation as method about the judicial serviceproduct, will follow the road which perfects its legal supervision mechanism.