Paper Submitted to 2011 Law and Society Annual Meeting, June 2-5, 2011 Westin St. Francis Hotel, San Francisco, CA, USA
Legal Knowledge Practice of Lawyers and Non-Lawyers
in the Divorce Mediation in Taiwan
Shu-chin Grace Kuo
SJD, Northwestern University School of Law
Associate Professor of Law, National Cheng Kung University 1 University Rd., 70101Tainan City, TAIWAN
gracekuo@mail.ncku.edu.tw
*unfinished draft circulated within the panel only *
Keyword
Legal Knowledge, Lawyers, Non-lawyers, Legal Professional, Anthropology of Law, Family Dispute Mediation, Mediators, Ethnography of Law, Family Law
Introduction
My whole project aims to delineate the legal knowledge1 involved in the
family dispute resolution process and to identify the trajectory where legal knowledge and family law jurisprudence are formed. Mediation has been described for a long time and characterized as a more flexible, more efficient, and so it is a better dispute resolution mechanism when it is compared to litigation.2 However, in this project, I
hope to offer a different point of view of mediation. I will argue that mediation, as one form of dispute resolution, may not be so much different comparing with litigation. Indeed, mediation and litigation are all framed by legal doctrinal structures, document production, and legal technicalities. Borrowing Riles’ term of legal technicalities,3 I
will argue that these elements, doctrinal structures, documents, and technicalities, all form the each stage of dispute settlement process both in litigations and mediations. Based on my legal anthropological research finding, I will provide another framework to talk about the mediation, particularly I will focus on the divorce mediation. I
1 Annelise Riles, “Knowledge About Law,” Entry in the International Encyclopedia of Law and Society 885-888 (Davis S. Clark, ed. 2007); Mariana Valverde, Law's Dream of a Common Knowledge. (2003). 2 Laura Nader, The Life of the Law: Anthropological Projects. (2005)
employ the “legal knowledge” theory to comprehend the actors’ knowledge practice in divorce mediation.4 Meanwhile, I will particularly assert that the dispute settlement
progress de facto is reframed by varied knowledge performed by each participant (actors, including lawyers and non-lawyers) according to the different. Thus, in my point of view, not only disputants are referred to the “participant”; I also include the mediators (lawyers and non-lawyers), judge clerks, attorneys, disputants’ escorts ( they are usually disputants’ friends and relatives), all of their presentence and interactions in the mediation room—produce the whole phenomena legal knowledge. In other words, I aim to provide a theoretical analysis of how the ethnography of family mediation mirrors the legal knowledge construction of the family law field.
In this manner, I will begin with the actors, including lawyers and non-lawyers, in the mediation room. I hope to answer the following questions: Who frames and reframes the dispute in the mediation room? Is the authoritative role of framing the dispute and identifying the core concerns always being occupied by the mediator? Or is it an exchangeable and interactive position for all parties, including the disputants, their attorneys, and the mediator? When the mediator lacks a shared contextual social relationship with the disputants,5 how can the mediator establish his/her authority to
lead to a settlement?
Lawyers and Non-Lawyers
Before answering these questions, I need to clarify the terms lawyers,
non-lawyers, and attorneys. In this essay, my usage of “lawyer” does not refer to “trial
attorney”; it means “legal expert,” or at least, someone who has completed four years of law school education or obtained official qualifications. In the modern legal cultural context of Taiwanese society, this group of people is called “Fa Lu Ren” (law persons).6 Both lawyers and non-lawyers are possibly appointed as mediators if the
judges approve.7 I use “attorney” refer to a licensed litigation attorney, who usually
accompanies his/her clients in the mediation room. As “non-lawyers,” I refer to people without official legal education background, so that they do not belong to the group of “lawyers”(Fa Lu Ren) as I mention above. However, they might be law amateur with certain legal knowledge primarily from the mediators’ “experiences and cases sharing” workshop or a certain amount of conferences. The non-lawyer
mediators’ mostly have background of being social worker or high school consulting 4 Annelise Riles, Relations: The Anti-Network: Private Global Governance, Legal Knowledge, and the Legitimacy of the State, 56 Am. J. Comp. L. 605 (2008).
5 Shaw-Wu Jung, Culture, Law and Strategy: Settlement Processes of a District Mediation Committee, Taiwanese Journal of Sociology, June 2007, 38-57-104.
6 Annelise Riles & Takashi Uchita, Reforming Knowledge? A Socio-Legal Critique of the Legal Education Reforms in Japan, DREXEL LAW REVIEW, P8, VOL. 1, NO.1 (Winter/Spring2009); Setsuo Miyazawa, et al., Legal Education in Japan: Legal Education and the Reproduction of the Elite in Japan, 1 ASIAN-PACIFIC L. & POL’Y J. 2 (2000).
teacher. In my project, I also develop a theme to make comparison of varied styles of mediation which mostly due to mediators’ various background. Some disputants who are not able to afford attorney, they would ask their friends or relatives who are “law amateur” to be with them. I call them “law amateur escort.” Sometimes, the “law amateur escort” makes a great impact on the dispute settlement process, because they win the whole-heart trust of their own side of disputant.
Legal Knowledge Practice in the Site: Focus on the Divorce Mandatory Mediation in the Court
This paper represents as an early draft of my legal ethnographic project involving a court-supervised mediation progress in the domestic relations division of the trial court (Family Court) of general jurisdiction for the county. There are mandatory and assigned mediation cases supervised by the chief judge of the Family Court in Taiwan. A chief judge has the duty to assign mediation cases to different mediators according to varieties of disputes. For example, the divorce mediations involving with children custody are usually assigned to mediators who are social workers or with therapist background. In fact, there is no formal rule for appointing a certain kind of mediator nowadays in Taiwan. The chief judge of the district court primarily selects the mediators from retired people, such as judges, retrained clerks, or other
government officials, or elementary or middle school teachers. Mediators from varied occupations indeed have different styles of mediation. How the chief judge matches each pair of the mediator and his/her case is another issue that reflects the legal-cultural character of the dispute.
All mediation cases are not allowed to be in the public. Therefore, in order to receive the multi-entry permission into the mediation room, I contribute myself to as a mediator. For having reciprocity, I am able to closely access the daily practice of dispute settlement process and do my legal ethnographic field research.
In the mediation progress, I was an overt researcher. The cases I dealt with included mandatory mediation, e.g., divorce mediation, and judge-assigned family disputes, e.g., family name change.8 I went to the court every two weeks, and played
my role as a mediator for three cases assigned by the chief judges in each mediation shift. I also participated in workshops held by social workers who regularly serve as mediators in this district court.
Upon my request, for research purposes, the chief judge assigned only family dispute cases to me.9 Indeed, the assignment depended on mediators’ specialty
approved by the chief judge. Thus far, most of the cases I have worked on have been 8 Taiwan Civil Law, Art.1059, Subparagraph 5.
divorce-related disputes, include cases of “getting divorced,” such as spousal property division, spousal maintenance, child custody/visitation, etc., and cases of “after divorce,” in which spouses formally request a change in custody or ask for payment of unpaid child/spousal maintenance.
Mediation: through the Lens of the Dichotomy of Dispute Settlement
In this section, I will critique the problematic dichotomy, which characterizes mediation as the opposite mode of dispute settlement, compared to litigation—the judicial dispute resolution. Yet, before I raise this inquiry, I need to explain an awkward situation: I do not intend to provide a comparative study of the judicial practice of family dispute mediation in the US and in Taiwan. However, I employ literature that mostly originates from the US; the empirical materials are obtained from Taiwan. It may look absurd. There are two reasons for this asymmetry. First, the recent mediation program developed rapidly in Taiwan mostly due to the lack of satisfaction with litigation.10 Criticisms of litigation have been generated in legal
practitioners and scholars’ discourses in Taiwan, which are mainly focused on how to reduce the cost of litigation and to adapt more modes of alternative dispute resolution (ADR), particularly at the district court level. This kind of assertion became
mainstream propaganda in the recent decade.11 Indeed, the orbit of the discourse of
ADR development is similar to what it has been in the US.12 From medical
malpractice to consumer dispute, from civil cases to criminal cases, the contentions of bringing more “alternative dispute settlements” and inventing more “multi dispute settlement programs” seem to be highly emphasized in the fields of legal academic and judicial practice.13 In this manner, there might be a linear process of a litigation
and mediation development pattern in the modern dispute settlement system.14
Secondly, Taiwan, as a legal system succeeding country, was greatly influenced by Germany, the US, and Japan. Taking family dispute mediation as an example, the Judicial Yuan often assigns judges of the domestic division at various court levels to study abroad in the US. Then, the judges bring the most updated US experiences to Taiwan’s judicial practice, for example, Judge Hsieh Jing-Hui, who was the key person who established the basic structure of family dispute mediation in the district court in the area of southern Taiwan. Hsieh absolutely took her U.S. experience as her
10 CHIU Lien-Gong, Legal Theory of Rights of Procedure Option, (2nd ed., 2001). 11 CHIU Lien-Gong, Legal Theory of Rights of Procedure Option, (2nd ed., 2001). 12 Laura Nader, The Life of the Law: Anthropological Projects. (2005)
13 Steven Weller, John A. Martin, and John Paul Lederach, Fostering Culturally Responsive Courts: The Case of Family Dispute Resolution for Latinos, 39 Fam. Ct. Rev. 185 (2001); Laura Nader, The Life of the Law: Anthropological Projects. (2005)
primary reference when she designed the court-attached family dispute mediation program.15 Meanwhile, social workers and psychologists, the two main groups who
are brought into the family mediation system to cooperate with judges in Family Court, also mainly refer to U.S. experiences. Therefore, I employ mediation literature from the US and Taiwan as the basis for launching my argument, so that it may look competent.16
Mediation and other forms of alternative dispute resolution for disputes of divorcing, divorced, or de facto couples but never married parents have spread rapidly in the last few decades in the US and elsewhere in the industrialized world.17 This
trend of ADR, especially mediation, was motivated by a general dissatisfaction with the traditional adversary methods, i.e., litigation, for settling family disputes, which are full of personal emotion and intimate details. Then, for example, in the case of child custody, mediation practitioners and researchers agree that mediation allows parents to develop their own plan for family reconstruction while the judicial process is constrained by the dictates of the law. In this manner, using mediation in family disputes more sufficiently increases the quality of the parties’ communication to address emotionally charged issues.18
Holding this understanding of mediation, most of the mediation literature then further confirms the “core values” of mediation, which are “party self-determination, mediator neutrality, and confidentiality of mediation communications.” These three core values create the substantial facets of mediation: “defining, clarifying, and narrowing the issues in dispute; understanding differing perspectives; identifying interests; and empowering individuals to manage their conflicts.”19 Indeed, these
concepts become internalized in characterizing mediation; for example, the manual books for mediators indeed are developed by these ideas.20 Overall, the literature and
practices of mediation in the US confirm the merits of mediation, especially standing in the position of disparaging litigation.
Meanwhile, some critics of family dispute mediation mainly focus on the 15 Interview with Judge Hsieh Jing-hui, Taiwan High Court (Appeal Court, Taipei) with the file of the author. (2009/05/23).
16 The hybrid phenomena of the court-attached mediation practice inherited from the U.S. model and mixed with the local culture will be worthy of further discussion from the comparative law
perspective.
17 Robert E. Emery, David Sbarra & Tara Grover, Divorce Mediation: Research and Reflection, p143-144, in Jana B. Singer and Jane C. Murphy et al. eds., Resolving Family Conflicts. Ashgate (2008).
18 Bill Ezzell, Inside the Minds of America’s Family Law Courts: The Psychology of Mediation Versus Litigation in Domestic Disputes, 25 Law & Psychol. Rev. 119, p122-124 (2001); Art Hinshaw, Mediators as Mandatory Reporters of Child Abuse: Preserving Mediation’s Core Values. Florida State University Law Review, Vol. 34, 2007. Available at SSRN: ttp://ssrn.com/abstract=937501
interests of so-called marginalized groups, women and ethnic minorities. The first criticism comes from feminist scholars: they worried that women can be more
excluded in such an informal dispute settlement.21 Feminist scholars also criticize that
the Western concept of law is based on a patriarchal paradigm and is characterized by hierarchy. The dispute resolution processes are ruled by linear reasoning, application of abstract principles, and the ideal of reasonable persons. The subjects are not treated respectfully and humanely when they enter the tower of law. Even informal dispute resolution cannot provide either a more just or a more humane alternative to the adversarial system of adjudication of family dispute.22 The other criticism comes from
the ethnic perspective and emphasizes the cultural context of disputes.23 Legal
practitioners and scholars develop abundant discourses of ADR, which involves much broader methods and theories when compared to traditional doctrinal studies of law.24
Overall, the common theme comes from the faculty of law, whose primary concern leads to mediation program amendment, such as improving the therapeutic mediation by psychologists and lawyers working together or enhancing the quality of
mediators.25
Yet, I will question, what is the essential difference between family dispute resolution and litigation? What if there is no substantial variance between these two institutes, especially when the judges in litigation tend to encourage the two parties to reach a settlement by their own negotiations; and the mediators/arbitrators are
encouraged to identify and provide revolving plans for the opposing parties? Indeed, the grey area of litigation and mediation seems to be getting close. Thus, I am thinking that the so-called core value of mediation, which is based on the dichotomy of epistemological recognition of mediation and litigation, needs to be theoretically reconsidered not only from the traditional law-and-society perspective but also from the “anti-network”26 point of view, which is beginning in the gap to cross the
disciplines. According to this manner, in a future revised essay, I will try to raise the methodological and epistemological discussions of how the different camps of
21 Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 Yale L. J. 1545, p1547-1549 (1991); Nancy G. Maxwell, The Feminist Dilemma in Mediation. International Review of Comparative Public Policy, Vol. 4, No. 1, pp. 67-84 (1992); Martha Shaffer, Divorce Mediation: A Feminist
Perspective (1988), University of Toronto Faculty of Law Review, Vol. 46, No. 1, 1988.
22 Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 Yale L. J. 1545, p1547-1549 (1991); Martha Shaffer, Divorce Mediation: A Feminist Perspective (1988). University of Toronto Faculty of Law Review, Vol. 46, No. 1, p167-p168 (1988).
23 Steven Weller, John A. Martin, and John Paul Lederach, Fostering Culturally Responsive Courts: The Case of Family Dispute Resolution for Latinos, 39 Fam. Ct. Rev. 185,p186-193(2001) (particularly in Table 3, the authors provide a summary of cultural variations for mediation and mediators). 24 As the relations of interdisciplinarity, see Annelise Riles, Representing in-between: Law, Anthropology, and the Rhetoric of Interdisciplinarity, 1994 U. ILL. L. REV. 597, 631-643 (1994). 25 Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 Yale L. J. 1545 (1991); Peng, Nan-Yuan, The Outcome of Family Litigation Engaging with Psychological Counseling, The Taiwan Law Review, No. 103, p243-257 (2003) (in Chinese).
scholars deal with mediation, such as cultural anthropologists, psychologists, law-and-society scholars, legal practitioners, social workers, etc. Then, through the legal knowledge practice by myself as a mediator, occupying the multiple positions of legal knowledge production, I wish to provide theoretical analysis of epistemological interaction, which is “representing in-between”27 the disciplines and institutes.
Holding these inquiries, I will provide a short story in the following section to illustrate how the actors in mediation do their knowledge practice to reach for a way out.
People in the Mediation Room: Story of Yanfan and Lainan
Yanfan (female, 32 years old, trade company assistant) has been married to Lainan (male, 32 years old, computer engineer) for 7 years. They have a 4-year-old daughter, Feifei. All of them lived in Lainan’s parents’ house. Lainan had an affair with a woman on Mainland China for 2 years. Yanfan and Lainan’s parents all knew about this affair. They hoped Lainan would regret and would come back to play his role as a son, husband, and father. Yet Lainan seldom returned home; he even rented his own apartment. Therefore, Yanfan filed a suit to ask that Lainan to pay child support, but Yanfan did not want to claim for divorce. Claiming for child support is a mandatory mediation case.
I was the mediator in charge of this case. I read the their files, including Yanfan’s filing papers, Feifei’s living expenses list, and the transcripts of messages between Yanfan and Lainan when they quarreled with their own considerations: Yanfan wanted her husband to come back and fulfill the ideal family picture. Lainan wanted his wife to “let him go” because there was no love or feelings. The transcripts were four pages long and full of emotions and anger. After I finished reading the files, the assistant called both parties to come into the room and started the mediation. Yanfan dressed neatly but looked sad. She broke down and sobbed aloud several times when she mentioned how Lainan had been disloyal to her. Lainan looked calm down and kept chewing gum.
I first clarified both parties’ wishes and explained the laws regarding this case. After the first-round clarification of both parties’ intentions and plans, I kept Yanfan in the mediation room and asked Lainan to wait for ten minutes outside. I told both parties that I would give them ten minutes each for a discussion with me. When I discussed with Yanfan alone, she felt my empathy, and told me her bottom line for negotiation: no divorce, minimum child support (NT$6000), separation accepted, and Lainan to give her back her car, but she would pay for half of the car. Lainan accepted
this deal, and both parties agreed to meet after 2 weeks to sign the agreement. So, the first round of mediation seemed successfully finished.
In the second round of mediation, Yanfan and Lainan both brought a note with them. Their notes were like contracts. There were some legal terms, but they were being used in incorrect ways. It seemed they were prepared before the second round of mediation. Based on my knowledge of law, I explained to Lainan that his contract looked like a “mutual divorce agreement” and that it was impossible to carry out some of the conditions in this agreement because their marriage had not ended yet. They were currently a married couple; they had just agreed to live separately and still needed to fulfill obligations for each other as a married couple. Lainan looked doubtful. He replied that these terms should correct because he had copied the words from some lawyers’ websites. Lainan was still chewing gum this time and showed that he was dreadfully bored by Yanfan and this whole process. Apparently, Lainan did not have any feeling for this relationship. It seemed that the contract he showed was the beginning of the future divorce suit. I opened my bookcase and dipped into the heavy “Six Codes Book”28 in front of him, and I read aloud the related family laws
to him. My words and behavior made Lainan quickly dump his request and withdraw his note. Finally, Yanfan and Lainan signed the document for the mediation
settlement. All the clauses were based on the first-round negotiation. Lainan looked resentful during these two rounds of mediation. Yanfan showed her thankfulness to me before she left the court hall. She said, “Thank you, I know you did good for me. I know you’re on my side. I know I am a fool that I am still love him. No matter how bad he was, he is the father of my baby. I’ll wait for him with my parents-in-law. I’ll keep a home for him.”
Multiple Role Playing for being a Mediator in the Field of Legal Knowledge Practice
When I was serving as a mediator, I kept balancing the different roles of
how to construct a therapeutic theme of the mediation for the inferior parties, I temporarily have no solid ideas now as a mediator on-site.
My other introspection is that the disputants may not be lawyers, i.e., legal professionals, but they are not all entirely naïve. The disputants are learning legal terms, making their own documents, and forming their own legal knowledge practice. The mediator, being a part in the mediation room, responds to the disputants and, meanwhile, frames and reframes every facet of the dispute settlement process. For instance, I was holding the “Six Codes Book” (Liu Fa Chuan Shu 六法全書) as the lawyer’s bible and dipping into the codes in front of the gum-chewing male disputant, my on-purpose behaviors creating the authority in the site. It appears as a law-faculty mediation model, which differs from the therapeutic mediation model for domestic disputes. Maybe it is about time to rethink whether mediation is dangerous for women nowadays.29 Is there possible power shifting in the mediation room, and how does the
power shift among the structure of class, gender, materiality, legal elite ideology, and legal technicality? As a cross-discipline legal researcher, I migrate back-and-forth from judicial practice to jurisprudential introspection. I put on and off different caps, from the role of nice-lady counseling mediator to the role of sophisticated practitioner of law. Those different caps bring me various ethnographic responses. The practice of divorce dispute settlements/unsettlements in mediation room also represents the process of producing legal knowledge, which might make impact for the audience who are interested in anthropology of law and socio-legal study especially regarding the ADR.
Reference
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Legal Theory of Rights of Procedure Option, (2nd ed., 2001).
Ezzell, Bill
Inside the Minds of America’s Family law Courts: The Psychology of Mediaiton Versus Litigation in Domestic Disputes, 25 Law & Psychol. Rev. 119, p122-124 (2001)
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Divorce Mediation: Research and Reflection, p143-144, in Jana B. Singer and Jane C. Murphy et al. eds., Resolving Family Conflicts. Ashgate (2008).
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The Mediation Alternative: Process Dangers for Women, 100 Yale L. J. 1545, p1547-1549 (1991)
Hinshaw, Art
Mediators as Mandatory Reporters of Child Abuse: Preserving Mediation’s Core Values. Florida State University Law Review, Vol. 34, 2007. Available at SSRN: ttp://ssrn.com/abstract=937501
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Culture, Law and Stragegy: Settlement Processes of a District Mediation Committee, Taiwanese Journal of Sociology, June 2007, 38-57-104.
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Becoming a Mediator: An Insider’s Guide to Exploring Careers in Mediation. San Francisco: Jossey-Bass 2002);
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The Outcome of Family Litigation Engaging with Psychological Counseling, The Taiwan Law Review, No. 103, p243-257 (2003)(in Chinese).
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