Town mediation in Taiwan

• Published date: 01 December 2020
• Author: Gabor Hera
• Date: 01 December 2020
• DOI: http://doi.org/10.1002/crq.21288

RESEARCH ARTICLE

Town mediation in Taiwan

Gabor Hera

Doctoral School of Law Enforcement,

National University of Public Service,

Budapest, Hungary

Correspondence

Gabor Hera, Doctoral School of Law

Enforcement, National University of

Public Service, Kiss Aron Str. 10, 1125

Budapest, Hungary.

Email: hera.gabor@gmail.com

Abstract

The primary aim of this paper is to demonstrate the

ways in which historical roots and social context have

had an impact on mediation in Taiwan. During the

investigation, the history, legal environment, and

everyday practice of mediation were analyzed with par-

ticular attention to an out-of-court alternative dispute

resolution method: town mediation. As the findings of

a literature review and the qualitative field work con-

firm, town mediation only adheres to some principles

of professionalism, and only to a limited extent. How-

ever, some specific features of town mediation that suc-

cessfully contribute to peaceful conflict resolution are

also discussed.

1|THE ANTECEDENTS OF MEDIATION

Taiwan has a long history of mediation. This is partly due to Confucianism, the belief system in

which Taiwanese society is grounded. This paper will not pay particular attention to the moral,

social, and philosophical teachings of Confucius, but it is necessary to briefly introduce some of

the core values and principles of Confucianism in order to understand present-day Taiwanese

society and the current system and practice of local mediation.

The essence of Confucius' approach rests in the importance of social harmony, which must

be maintained by all members of society. In a Confucian utopia of social harmony, people evo-

lve harmonious relationships, respect each other, do not create disturbances by conflicts, and

try to restore harmony before a dispute is brought to court. The pursuit of social harmony is

one of the core values of Confucianism, and is expressed in the so-called “wú song”principle,

which translates to “do not go to the courts”. As Confucius advised, “In hearing lawsuits, I am

no better than others. What is imperative is to make it so that there are no lawsuits”

Received: 19 November 2019 Revised: 23 August 2020 Accepted: 23 September 2020

DOI: 10.1002/crq.21288

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and

reproduction in any medium, provided the original work is properly cited.

© 2020 The Authors. Conflict Resolution Quarterly published by Wiley Periodicals LLC.

Conflict Resolution Quarterly. 2020;38:7–25. wileyonlinelibrary.com/journal/crq 7

(Watson, 2007, p. 83). Based on this principle, trial, and litigation are inherently tainted and

troublesome to social harmony and personal relationships, and thus disturb the social order. A

proverb cited by Cohen in his article about Chinese mediation clearly describes this anti-

litigious attitude: “It is better to die of starvation than to become a thief; it is better to be vexed

to death than to bring a lawsuit”(Cohen, 1966, p. 1201).

As law was “a necessary evil”(Fa, 1980, p. 24) for settling disputes, societal mediation was

commonly used in ancient China; justice was typically administered informally by families,

clans, villages and associations (Cohen, 1966; Fa, 1980; Xianyi, 2016).

While discussing this ancient value system, the importance of hierarchy and social order

should also be mentioned. As Confucius emphasized, “Let the ruler be ruler, ministers minis-

ters, fathers fathers, sons sons”(Watson, 2007, p. 82). Later on, the importance of hierarchy was

further emphasized by Dong Zhongshu, one of the most important Confucius scholars.

According to Dong, social order is regulated by fundamental ties between superiors and those

who have a lower rank in the hierarchy (Zhao, 2015). According to this approach,

Males, lords and fathers belong to the superior metaphysical principle of yang, they

are equivalent to each other, while females, retainers, and sons are equivalents due

to their sharing in the inferior principle of yin. Thus in the same fashion that

retainers treat their lords and wives their husbands, sons should hold their fathers

in awe, follow their directives without hesitation. (Knapp, 2005. p. 25)

All in all, social harmony can only exist if every individual knows their place in the social order

and acts in accordance with their set tasks and duties, with low-ranking individuals guided by

higher-ranking decision makers (that being said, even in these hierarchical relationships exist

mutual obligations, responsibilities and reciprocity). The stability of society is largely based on

the harmony and togetherness of families in which elder men are superior and powerful, and

young family members and women in particular, have subordinate positions (Zheng, 2016).

The migration of Han Chinese people from mainland China to the island of Taiwan started

in the seventeenth century (Davison, 2003). In addition to spreading the principles of Confu-

cianism, this migration carried the legal culture over as well; those who migrated continued to

handle their disputes informally. As Wang highlighted, while introducing civil dispute resolu-

tion during the rules of the Ch'ing dynasty in Taiwan, ordinary people usually tried to resolve

their conflicts through conciliation, often assisted by their family members and prominent local

noblemen (Wang, 2000, p. 24). According to Diana Lin, two types of mediation can be identified

in this period: (1) clan mediation that was facilitated by the “the elder and virtuous”of the clan

and (2) local mediation that was guided by the head of small geographic units (the “shiang-

pao”or “pao-chia”) (Diana Lin, 2011, p. 200).

The next milestone in Taiwanese history was Japanese colonial rule, which took place

between 1895 and 1945. During these decades, two types of mediation were available for dispu-

tants. After the Civil Disputes Mediation Law was enacted in 1904, local government officials

were put in charge of handling any civil cases within the framework of administrative media-

tion (Wang, 2010). But the heads of local divisions (renamed from “shiang pao”to “hokň”in

1898) or policemen also had the right to mediate civil disputes; Wang called this kind of media-

tion “ordinary mediation”or “unofficial dispute resolution”(Wang, 2000, p. 90). Although

mediation was more prevalent in the beginning of the Japanese colonial period, people in

Taiwan were affected by the Japanese Civil Code and litigation soon became more common-

place. After a while, the role of modern courts in dispute settlement became increasingly

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