Informal Mediation, An Overview & Analysis of Chinese Justice

“In hearing litigations I am like any other body. What is necessary, however, is to cause the people to have no litigations” (Huang, 252).
So Confucius stated in the Lun Yu, espousing a view of litigation that dominated Imperial China for centuries. But conflict is an inevitability of life, so how was justice practiced within the Chinese traditional worldview outside of the formal litigation system?
What developed over time was an informal legal system that relied on the community rather than the bureaucracy to handle local disputes. Mediation supplemented formal litigation in most cases with formal litigation becoming a secondary option only when informal mediation failed. The most used yet least recorded due to its unofficial status, mediation evolved as the principal method of dispute resolution, especially in civil cases.
As well as conforming to the philosophy and ethical system of Confucius, informal mediation became a pragmatic solution for the majority of the population and an overwhelmed government. Characteristics of life in the Imperial era were stark and simple: the population was largely rural, agricultural, illiterate, and poor. These factors, together with traditional social and cultural norms, caused informal mediation to displace formal law as the prime method of justice in Imperial China while failing to redress the power imbalances that starkly divided Confucian society.
Foundations of Mediation
One can begin to understand why informal law suited the general Chinese population when the flaws of the formal legal system are considered. Those seeking justice through mediation and those through law were perceived to be of much different moral character. Formal justice indirectly demanded an educated individual who could understand legal language. Illiterate plaintiffs found they had to hire the services of litigation masters, as they were called, or what Mellissa Macauley describes as ‘failed literatis.’ As lawyers in Western societies are often viewed with wary distrust, so Chinese society considered Imperial lawyers corrupt, both financially and morally, for taking advantage of the troubles and conflicts of others. Chuan, himself a former magistrate, hinted at ways in which magistrates effectively could carry out justice within their local jurisdictions and deal with “crafty scoundrels” (litigation masters) and “rapacious villains” (runners) (256). While Macauley uncouples overwhelming perception from fact, in the end the costs of litigation masters were often beyond villagers' meager financial means.
Although a local magistrate was not regarded in such a negative light, local villagers considered him a “foreigner”, a necessary component but not truly a part of the local community. A Chinese proverb declares that “of ten reasons by which a magistrate may decide a case, nine are unknown to the public” (Chen 77). Moreover, magistrates often became so preoccupied with administrative functions that they delegated cases to subordinates (Chen 76). The uncertainty and seeming arbitrariness with which cases were decided only reaffirmed the average Chinese’s reluctance to embark upon formal litigation.
By comparison, informal mediation usually involved the services of respected local elite or elders. When there were was no agreed upon middleman, villagers asked a third party for help in resolving a dispute, a third party whom Huang identifies as ‘specifically someone with a solid reputation in the community for this kind of service’ (58). They were usually middle-aged, relatively affluent, and identified with the quality of moral uprightness (niangao youde) and reputation for trustworthiness (you xinyong) (Huang 59). An interesting adaptation was used when mediation was needed between peoples of different villages. In both disputes investigated by Huang, village mediators formed a group with the mediators of the other village to reach a compromise. Mediators allowed parties to reach a binding agreement without having to involve themselves in the ‘degenerate’ law system. Though it is difficult to judge the actions of the players of the formal legal system, their slightly unsavory reputation encouraged people to explore justice with more esteemed figures.
“To enter a court of law is to enter a tiger’s mouth” (Chen 77). The social costs and aspects within cultural norms which so often could not be quantified yet were significant played a large part in the creation of the informal mediation. Shamed by being involved in a conflict in the first place, families faced an even greater shadow upon their reputation when mediation failed and they found themselves forced to turn to formal courts to resolve an issue.
Chen elaborates on the role of family in China as a non-Western concept. In reality, Chinese society was compromised of larger ‘kin groups.' Hence, everyone was a member of an extended family unit (69). For families, the ability to maintain position meant husbands and wives for their children and greater respect within the community. It is important to bear in mind the Confucian value of self-cultivation which MacCormack interprets as the duty individuals had to other family members to “reform and reflect on their conduct” to avoid disgracing their ancestors and their family (9).
Though informal justice could disturb the lives of those involved, it did not blight communal harmony as the formal legal system could and did. A Chinese proverb on litigation remarks “Inform against a man once and three generations of his family will become your enemies." The formal legal system was a zero-sum game with clear winners and losers. Often it provoked long-running feuds between villagers (Chen 77). The very idea of litigation encouraged the pursuit of ‘one’s own interests at the expense of others’ (Chen 67).
Mediation, in contrast, entailed the element of compromise. This allowed both sides to enjoy a settlement that could satisfy some, if not all, their needs. And it was much more tolerable to have problems solved by community leaders rather than by a magistrate who was typically an outsider to the community. All parties could emerge with their dignity and honor and, by extension, that of their families, intact.
Court trials were ‘invariably humiliating’ not only to families, but to the individual (Chen 76). Chen points out that the traditional Chinese system was not the English system of adversarial justice. Instead court proceedings were ‘structured to emphasize the unworthiness of all persons' (Chen 76). Courts resorted to torture to elicit evidence or a confession of guilt (Chen 76). Moreover, the Chinese legal code was entirely penal with no separate section for civil matters. This meant that all judicial processes were ‘accusatory’ (Chen 77). Every case brought before a formal court of law resulted in some sort of punishment. As van der Sprenkel points out “a case could end in punishment for the accused if judged guilty; if he were not, punishment would be assigned to the unjustified accuser” (Chen 77). To many entering the Chinese legal system was like sticking one's head into the mouth of a capricious tiger since the system's primary duty seemed to be to an abstract legalism rather than right or morality.
Pulled away from farms and forced to expend already scarce resources, peasants were not prepared for the tribulations of court. The court system took a relatively long time, which could force both parties to find boarding. When appeals extended the court process, litigants found themselves in increasingly difficult and often untenable situations. Lodging around the yamen was often inflated beyond normal prices and controlled by self-interested litigants, a bad combination for unsophisticated rural plaintiffs and defendants. While serving as magistrate, Chuan found that housing was such an issue that he created a “litigants' shelter” because of his “deep sympathy for ignorant people” (262).
Informal mediation also could pose problems, such as finding an agreeable mediator. However, mediation usually took place within a short time frame and did not require the parties to leave their homes (though it may have forced them to cook a good meal or tea for the mediator). While far from a Confucian ideal, the mediation process minimized damage to family and personal dignity in a communal-based society and avoided the time and expense which formal law typically required.
The Methods of Social Control & the Pursuit of Justice
As Chen asserts without a truly effective law system which in the Western sense ‘regulates human conduct,' one must "endeavour to discover the non-legal means that have helped in the maintenance of order in Chinese society" (38). Beyond the imperfections of its legal system, Chinese views of the law and legal tradition also illuminate why citizens preferred to seek informal mediation. Within Imperial China, formal law developed as "an instrument of state power" rather than a mechanism of redress for personal wrongs in conformity with Confucian philosophy that dominated Chinese culture for two millenniums (Chen 26). Confucian thought, apart from its disesteem for litigation, encouraged communal harmony, hierarchical stability, and an individual's innate virtue. These important objectives infused the core of informal mediation.
The idea that law and courts were necessary to maintain human behavior contradicted Confucian ideals. Lu Chia, a Confucian scholar, laid out the idea of law thus: "Law is used to punish the evil, not to encourage the good. The law is able to punish men, but unable to make men uncorrupt; it is able to kill men but is unable to make men kind" (Chen 31). The state's system of formal restrictions and punishments could not bring out a man's goodness. But since human nature created disputes, the pragmatic solution was to maintain moral standards outside of a formal system. Without strictly enforcing laws or reference to specific statutes, mediation illuminated the inherent virtue within a quasi-judicial system. [allowed for a man's inherent virtue, within this quasi-judicial system, to affect the outcome of his case ?]
Ideally codified law followed a similar track: law was used to right the wrongs that caused imbalance or disharmony. Formal law, in essence, was indicative of a moral decline directly linked to the state by the very fact of its existence (Chen 128). The state, and the large Confucian family headed by the Emperor, was responsible for this failure of values and virtue (Chen 128). Outside of this, law could restore the harmony upon which the Chinese world depended and maintain the authority of the state relative to the people. The system primarily addressed criminal cases which demanded people be punished. The lack of a civil code, however, meant that cases which involved money or property, i.e., vices in the Chinese ethical view, were pushed to the back burner. In effect, the legal system existed to protect the interests of the state rather than the needs of the people. In contrast, informal mediation reflected Confucian virtues of responsibility to oneself and one's community rather than the will and/or power of the state.
Social mechanisms also allowed human conduct in traditional Chinese society to be regulated outside of formal systems (Chen 128). Shame and ridicule acted as agents of ‘social control.' Informal communal sanctions were effective mechanisms of communal stability. Chen emphasizes “what affected the individual’s life was not physical infliction of punishment, but public censure” (128). The family bond, the strongest social institution and most stressed Confucian group relationship, provided the cohesion that made public reputation an important facet of life. With the legal system deemed as morally and socially degrading, much of the codified law was successfully enforced by the indirect shame which infractions provoked.
In the wet-rice agricultural villages of China, the Confucian value of communal harmony, even if not explicitly identified, was a necessary fact of life for survival. Families shared plots of land, entrusted in one another during harvests, and engaged in local trade together. Simply put, “the Chinese are basically collectivists by nature. In this sense, it is important to always try to maintain group harmony” (Chen 67). MacCormack identifies in The Spirit of Traditional Chinese Law the underlying set of rules which governed communities and which conferred privileges upon the old and maintained relations between families (9).
Formal law, by its dichotomous solutions, implied self over society, an implication that contradicted core Confucian values. Informal law, in contrast, embraced these values by ‘weighing mutual interests for the long term good, rather than rigidly adhering to the pursuit of individual rights at the expense of the communal or social interests’ (Chen 67). Community centered thinking encouraged the collectivist Chinese to seek redress in a setting that did not disrupt the community, a setting afforded by mediation and its informal law.
The structure of Chinese hierarchy, the foundation of the social structure, was a prime influence on informal mediation. “Let householders avoid litigation, for once go to law and there is nothing but trouble” (Chen 77). It was the responsibility of the family patriarch to resolve disputes without resorting to such non-Confucian methods as litigation and thus avoiding social disruption. MacCormack elaborates that formal law allowed persons of lower status to have a fair chance at reparation against those of higher status. Thus formal law technically allowed —though we do not see frequent cases— hierarchical disruption.
Confucianism demanded obedience from its adherents: “[a] moral man's behavior is directed toward promoting co-operation and solidarity by public example” (Chen 67). Huang describes mediators as finding cases dealing with social unequals outside of their ‘consciousness’ where they felt unable to rule against their own worldview (72). An ambiguous area, the ability to discern between Confucian values with its inherent beliefs in hierarchy and community and abuses of power and class struggle will be explicated in further detail. However, in a strictly Confucian worldview, the informal mediation system successfully reaffirmed Confucian beliefs in preservation of harmony through distinct social roles and status.
“Disputes were viewed as disruptions of the natural harmony which link individual, group, society, and the entire universe. The best way to restore this harmony was through compromise” (Chen 65). By replacing the winner-loser paradigm, informal mediation encouraged Confucian ideals of communal harmony and virtue that bound together Chinese society. Natural harmony was a virtue of man, not a matter of the state. Through its simplicity and reflection of the needs of the masses for justice, informal mediation became the standard in a society where formal law was not sufficient.
One can view the formal-informal dichotomy as the struggle between morality and law. In the justice system, Confucianists held a hegemony over the Legalists. Recourse in the courts was ‘generally shunned,’ with the various social groups – families, clans, and villages – providing the appropriate background for the mediation style of dispute settlement (Chen 66). Chen records “in this regard, the application to the formal legal system was very rare... the fact that very few cases came before the courts provided a more accurate index of the Chinese predisposition to compromise” (67). Though recent evidence suggests people did use the courts more than previously thought, the lack of records for mediation makes it difficult to judge its use relative to the courts. However, given the underlying social tone, the dominance of Confucian ideology, and the disposition towards compromise, one can understand the tension between the two systems. As a result of this tension and the molded cultural environment [?], informal mediation dominated Chinese justice.

Practice of Mediation: Civil Cases and the Ideal
“When the people of the community start quarreling over an insignificant difference of opinion or happen to have a fit of anger, one of them may file a complaint without considering the consequences. But if his relatives and friends advise him to think it over first and if he cannot file suit except on prescribed dates, all parties may settle their differences over a cup of wine. Is this not what the magistrate, the 'father-and-mother official' of a district, would like to see among his people?” (Chuan 254).
Within this judicial framework, one can dissect the methodology by which the Chinese strove to solve a variety of issues. They often sought mediation to resolve differences arising out of transactions crucial to village life: land rental, marriage, and formal or informal loans. These conflicts primarily dealt with individual problems, a fact which suggests informal mediation was the outside embodiment and rectification of personal rights. In this sense, we can begin to evaluate the Chinese system on more familiar Western grounds.
Throughout the world, a common source of contention is either love or money, or a potent mixture of the two. The people of China were no different: people entered into contracts, loans, land transactions, and marriages. Mostly civil matters, these critical events were the major source of contention from which arose the largest need for redress. Therefore, informal mediation—the easiest and most accessible solution—became dominated by civil affairs.
The treatment of formal loans best illustrates the role of the middleman. The middleman was chosen through a personal relationship. That personal relationship facilitated the transaction and enabled the middleman to achieve an agreement with both parties quickly (Huang 52). One interesting development which occurred within the mediation process was the middleman also acting as a guarantor, a person who would pay if the borrower defaulted. For example, Du Xiang of Shajing village sold 10 mu of land to fulfill a 300 yuan loan a relative took out (Huang 53). But with this added responsibility came the possibility of remuneration. Huang calls such middleman just short of a ‘paid brokering profession;’ they were paid typically by gifts of agricultural produce for loans over one hundred yuan and nothing for loans smaller than a hundred yuan (53). In the ethnographic data, mediation involving formal loans appears to be the most successful. Huang’s survey records not one dispute over a formal loan unresolved by mediation (53).
In an agrarian society, the sale, rental, and purchase of land were the primary source of economic stability for the household unit. The middleman was often chosen because of his knowledge of the land or his credibility with a landlord. Sometimes the middleman cosigned a written agreement, if there was one. (Huang 54). They were asked to measure land. They signed sales documents. Akin to their role in formal loans, they were rewarded with a meal or a gift (Huang 56).
Land rental could be a little more difficult since the anticipation of economic fluctuations, a distinct possibility, could complicate contract negotiations. For instance, in Enxian County, a Ma Chang rented a plot of land for three years at the fixed price of six yuan a mu using Ma Ruiyuan as the middleman. However, agricultural prices increased soon after the negotiation and the majority of other village agreements switched to an in-kind arrangement. The landlord Liu Shicun wanted to switch to a similar agreement, but Ma Chang refused. The middleman Ma Ruiyuan mediated with the result being Ma would pay in cash the second of the three years and then in kind the third year (Huang 55). In the majority of the cases, however, the middleman’s responsibilities terminated with the conclusion of a contract (Huang 55).
In a modern context, one often thinks of marriage as a natural selection of pairs. For the Chinese, however, marriage was a complex matter that required careful negotiation between families. During the Imperial period a go-between frequently facilitated marriages. Once each family consented to an engagement, the go-between was responsible for the exchange of “small cards” (xiaotie) and then the “big card” at the actual marriage (Huang 56). An unpaid service, the mediator’s role in the marriage ended at the wedding ceremony, with any later disputes to be handled by kin (Huang 58). Though not wholly an “economic deal,” an arranged marriage meant the middleman played an important role in its facilitation (Huang 57). In two cases described by Huang a maternal uncle arranged a marriage, in one instance, and, in the other, a villager arranged a marriage for a friend's nephew (57). These middleman functions were an important tool of social stability and were “[c]learly understood to be a favor, not a paid service” (Huang 57).
The resolution of such cases explicates why Chinese citizens preferred mediation. Van der Sprenkel divides the mediation style into three categories: negotiation, conciliation, and arbitration. All three methods of handling disputes lent themselves to compromise, which, as stated before, pervaded Confucian moral thinking. Negotiation, the least used, meant no outside help was sought and the disputants arrived at a settlement between themselves (Chen 79). Conciliation involved the help of a third party, who ‘would attempt to help the disputants reach a compromise without dictating terms to them’ (Chen 79). In contrast, arbitration was in some sense an informal court session, where the two parties presented their views and the third party reached a ‘judgment’, which would be enforced and abided because of the ‘inherent arbitrators authority’ (Chen 79). Within these three systems, Chen remarks correctly that these systems were more ‘fine than real’ (79). Mediation often involved all three within the overall process. Disputants might begin negotiating between themselves but later call upon a third party to reconcile their differences (Chen 79).
However, what happened when third parties such as neighbors, kin, or friends were not available to resolve disputes? Then villagers looked to someone with a ‘solid reputation in the community for this kind of service’ (Huang 58). These were typical community and kin-group mediators: men who were well known for their virtue and fairness, educated on some level, with influence in the village or local area, and generally well-off. We see these attributes readily affirmed in Huang’s evidence. In Sibeichai village, the most frequent mediators were two men who both served as village heads. In Shajing, seven mediators were named—a doctor, jewelry shop owner, three landlords, an owner of a cake shop, and a modest man of advanced age (58 59). One may typify them as Huang has as an informal ‘gentry’ class; but, they also may be characterized as professionals, landed aristocracy, and the bourgeoisie.
We often are presented with ideas of law in terms of ‘ideal’ situations; and, it is appropriate to evaluate informal mediation on a similar level. Mediation was primarily a tool of what we may term ‘civil law;’ that is, informal mediation was not sufficient to rectify criminal disputes. Instead, disputes where there was no clear cut right and wrong were most satisfactorily solved by compromise (Huang 72). The critical factor seems to have been the mediator's sense of responsibility. In informal loans and marriages where the mediator was usually a relative or a friend, his willingness to make good on a loan or a marriage proposal was often necessary if he wanted to maintain his position within the family. Indeed, where it was advantageous to be sensitive to social and family responsibility, one sees a lack of reliance on formal law. Again, as we recall, Huang's study documents no failed resolutions which treated with formal and informal loans.
The status of the disputants also was an important factor in determining the success of mediation. Wealth and power could easily quiet a mediator, if not the accuser, in an unchecked informal system; social inferiors were basically outside of the system (Huang 72). While we shall examine the misuse of privilege later, it is also necessary to raise the point that most communities were made up of an equal peasant class. Therefore, the ‘gross imbalance of power’ that could stifle mediation was somewhat rare (Huang 70). In Huang’s words, mediated compromise worked best in instances of disputes among people of equivalent status and power (70). Thus the ideal situation fell into the category of civil disputes between people of equal hierarchical status that could be resolved by kin or family members.
The process of mediation reflected a desire for simplicity in the judicial system, as opposed to the workings of the formal system. The village leaders, whether invited or self-appointed, would find out the background leading up to the conflict and whatever other information necessary for them to discern the true nature of the dispute. Villagers would be interviewed on the pasts of the parties involved, and a solution would be proposed based on information garnered (Chen 80). Sometimes the predicted outcome of the dispute, if to be hypothetically taken to court, was factored into the ultimate solution, allowing for some vindication for a legalistic position (Huang 65) The mediators would ‘shuttle between the disputing parties’ to reach a final agreement, which then was celebrated with a feast (Chen 80).
The decision making of mediators also reflected the deep impact of moralist thinking that went into the process. Though Confucian values are stressed, it is overreaching to extend such basic tenets that one can simply term “right and wrong.” [Although Confucian values are stressed, to use the terms 'right' and 'wrong' would oversimplify the nature of the mediation process. ??? I am not quite sure of your meaning here.] As humans, I believe we all share basic values that allow our society and world to function. Informal mediation relied on these inherent concepts to guide its decision process, and decisions were ultimately reached on villagers' common sense notions (Huang 66). Though formal law did figure into informal mediation, most disputes were decided by the commonalities of ‘right and wrong’ (Huang 64).
“In the general social context of imperial China, compromise was more valuable as a technique of stopping rifts from developing into violent struggles, of minimizing detrimental effects of conflicts, than as a positive method of preserving social harmony” (Chen 84). The importance of personal relationships extended not only before but after resolution as well. The practice of mediation permitted people to resolve their conflicts and also to hash out old problems that may been precursors of the dispute. The enforcement of mediation also embodied this spirit: participants were expected to carry out the resolution on their own. After the final outcome of a dispute, the litigants and the mediator ate a feast together at the expense of both parties (Chen 84). One can hardly imagine a more harmonious way to rekindle positive feelings between previously at odds people. Indeed, the two parties by custom shared a wine cup, a “Chinese version of the peace pipe of North America” (Chen 81). Harmony was maintained and carried out in the local environment, relying on the recurring Confucian ideal of self-cultivation and responsibility.
This thinking even extended to the formal system: magistrates readily refused appeals on resolutions which resulted from mediation. To go against a ruling handed out by the leaders of the community a magistrate would be ‘flouting public opinion’ (Chen 84). These decision makers were often the same people he relied on in order to carry out his local duties. To refute their opinion was a provocative gesture for a magistrate to make. Hence, magistrates would ‘readily concur with community leaders.' This meant that the guilt of the appealing party was presumed before his case was even heard (Chen 84). In effect, the process of dispute settlement outside of the formal law disallowed a party’s right of appeal to the official court (Chen 84).
Western Concepts & Chinese Individualism
The Western practice of law paints a perfect picture of what Confucian scholars so adamantly disliked. In the West, individual rights, specifically in regard to property, serve to protect us from being infringed upon by the state. One can take others to court on a range of issues with civil and criminal matters clearly distinct from one another. But conceptions of Western individualism do not translate in a primarily communal-based Chinese society. Rather than functioning as a protective force for the citizenry, the formalities of law effectively protected the state from the people. Chinese law was not a tool of the population, but an agent of legitimizing power and authority without addressing the need for justice. Informal law bridged this gap by creating the opportunity for compromise outside of the legal sphere.
Judged by community leaders on the basis of fact and moral right and wrong instead of on legal language, mediation allowed localities to resolve issues without dissolving relationships that were important to village communities. It is important to note that law rarely intruded on the decision making of informal mediation, thus preserving local practices. Informal mediation was much more than a local practice, but a nation-wide tool that maintained social stability, a key feature for a Manchu regime roiled by frequent political and military unrest.
Expanding on Western concepts, it is possible to regard informal law as the embodiment of personal rights throughout Imperial China. Formal law made no distinction between civil and criminal disputes, so a system complementing formal law evolved which could readily handle civil matters. This encouraged peasants to achieve what they termed right and wrong in social matters, but which the West would describe as the expression of inherent individual rights. Especially in matters touching upon property, informal mediation satisfied villagers' need to rectify situations which could harm a collectivist society. That the majority of cases dealt with ‘civil’ affairs—that is, property, monetary, and marriage disputes — underscores this conclusion. Though one may be led astray by the terms "communal" and "collectivist," informal mediation allowed individuals to protect property rights not officially ordained by the state.
Informal law became the de facto law in a society where conceptions of individual rights were not acknowledged by the government. One's legal rights when entering into the formal law system were non-existant while informal mediation was conducted by people often chosen by the two parties. Further, these cases dealt with matters that were often minor nonetheless the backbone of any successful civilization: interpersonal, property, and monetary rights. Thus, informal mediation served to satisfy the desire for individual judicial rights while legitimizing the power of the Manchu state through the maintenance of social stability.

Abuse of Confucian Principles or Class Reinforcement?
“The Chinese mediator does not merely act as a channel of communication between the disputants; he is expected to propose possible solutions, to explain the framework of law within which the agreement must be reached, and to take an important part in the parties’ negotiations. In resolving disputes, a Chinese mediator is expected not only to help the parties reach a settlement that accords with their wishes, but also to promote important socio-political values and policies.” (Chen 15)
Informal mediation could do “little in the way of righting injustices against the powerless by the powerful” (Huang 68). As noted before, informal mediation worked best with people of equal social status since mediators often felt obliged to work within the social hierarchy. This implies that mediation failed when there were imbalances of power between the parties involved. But can one discern between the keeping of Confucian harmony, which may have meant that reinforcement of the class structure was expected, and the outright abuse of privilege, class, and power by those were most inclined to use it?
I have previously discussed the dominance of Confucian intellectual thought. Hundreds of intellectuals have considered the place of Confucianism within a class-structure thought. We must now turn to a different vantage point to distinguish between principles to reach a straightforward analysis of the informal law system and patterns of class dominance.
The primary force that inhibited justice was the mediator himself. “Just as the magistrate was often not a model Confucian gentleman, so the extra-judicial mediator was not always an exemplar of Confucian virtue” (Chen 83). Often mediators were enveloped by self-interest, particularly as regards their reputation, and a level of want that “undermined the ideal dispute resolution method” (Chen 83). Corruption, betrayal, and personal loyalties were all part of a mediator's rationale and which could lead to unevenly balanced outcomes (Chen 83). Community mediation was generally limited to the empowered members of the community: the male heads of households (Huang 71). Further, mediators were often the very people who would benefit from the stagnation of social hierarchy: the landed gentry and sundry elite who enjoyed positions of privilege. Indeed, even within the communal and Confucian ideal, there were still obvious differences in power and status which caused further imbalances within the informal judicial system.
An extremely disturbing case examined by Huang illustrates the kind of abuse the unchecked mediation system could allow. In 1927, a seventeen-year old male named Liu Changjiangtou raped a seven-year old. After the girl died of injuries, Liu went into hiding while his father, a wealthy man, worked to have formal charges removed. The father was able to have the criminal case treated as a ‘mere civil dispute,’ with the case being decided by the village head and other village members. The mediators ruled that “Lu Shenglan and Liu Cungui each stuck to his version of events, each had his reasons, and neither was sufficient to establish whether what allegedly happened really happened” (Huang 69). Following the ruling, the young girl's father, Lu Shenglan, was encouraged to petition to close the case. And the magistrate, successfully bribed, agreed to end the case. Huang summarizes, “thus the powerful employ the principles, procedures, and language of informal justice to cover up a crime of rape-murder” (69). Confucian virtue did not inhibit susceptibility to the influences of power and money.
Joseph Esherick illuminates the mindset of the elite in one concise but telling phrase: “elite strategies were divided between inter-class conflict for power” and strategies “that tended to unite elites as a self-conscious dominant class” (316). Further, Esherick singles out the “essential functions” of the community of mediation and brokerage as being dominated by people of elite status (317). Providing these functions in itself was a way of enhancing prestige and community standing, and controlling these functions was another method of maintaining their privilege (Esherick 317). By serving these purposes, they increased their own power and prestige, reaffirming their positions within the community. This class also saw itself most closely linked to the local bureaucrats who they shared cultural and social ideals with; indeed, the influence of mediation and mediators increased as its brokers were heavily tied to the official functionaries of the state. Mediation became a resource employed in the strategy of elites to define ‘social position’ and reinforce ‘cultural hegemony’ (Esherick 324). Therefore, informal mediation was a significant part of a larger system of domination of the upper classes. Thus a viable method of justice was withheld from the poor as the elite continued to exercise power and privilege over the lower classes.
In conclusion, as Huang puts it, the triad of state law, the community’s sense of right and wrong, and compromise to maintain peace all operated together. The legal hemisphere was one of the most important for the state, specifically the Manchus who adopted Confucian principles to legitimize their hold on power. Within this desire for legitimacy, the distinctions of class and privilege exercised themselves over the lower classes in the seek for justice, often leading to abuse and failures of the pervasive ideal of ‘right and wrong.’ Informal mediation was an important aspect of this legitimization: the social structure was maintained, disputes were resolved on a local level, and government officials could reinforce the power of the state, all in the name of Confucian ideals. But within these ideals, one can view the same class abuses in informal mediation as a microcosm for the inertia that would fuel the fire of the Communist Revolution and the desire to move from the patterns of class dominance. Informal mediation was an imperfect system that mirrored the pitfalls of a society characterized by stratification, elitism, and social privilege.


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