Greetings from China! Today the U.S.-China Partnership for
Environmental Law hosted a “Roundtable of Environmental Dispute Resolution: Adjudication and Mediation” at the Guangzhou Maritime Court. We sat around a horseshoe table in classic Chinese fashion, with the American on one half, and Chinese judges, all dressed in matching light blue shirts with China pins, on the other.

There is no doubt that this sort of cross-cultural exchange is both useful and difficult. The need for translation breaks the flow, some of the remarks of Chinese judges were read from pre-written scripts, and everybody needs work on their PPT slides (too much verbiage).

American judges, from the US EPA’s Environmental Appeals Board and the Vermont Environmental Court, focused on what I’d describe as judicial process including topics such as the types of claims brought (public and private), who can file suit, who is subject to suit, and importance of allowing claims against government. Nut and bolts information was also conveyed—monitoring of results; when do things end? (completion of remediation; continuing jurisdiction); what does a court order look like?; details, deadline, reporting, penalties for noncompliance. In terms of adjudication, what I’m really not sure about is whether Chinese judges do such things, where they know how to craft such orders, or whether they have authority to do so? But on the mediation side, the American and Chinese judges had much in common.

One difference did occur. The Chinese judges stressed the primary role of mediation, and stated that Chinese courts always give priority to mediation in civil action. The Chinese judges stated that the “court guides the parties to resolve” the conflict through mediation before the court takes the case. But what does “guide” mean? At best, do Chinese courts more effectively and efficiently resolve disputes by facilitating resolution before litigation becomes necessary? Or, at worst, does “guide” mean that the outcome pre-determined and that’s why mediation is preferred. Do and can judges, both Chinese and American, signal an outcome preference during mediation? These questions occurred to me before the Q&A session when the judges had a great informal discussion about the perceived advantages and disadvantages of having the same judge do the trial and mediation (as is done in China) or have a separate trial and settlement judge (as is done in the EPA’s EAB).