Alternative dispute resolution: mediation or conciliation?

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The derivation, or etymology, of legal words often provides interesting insights into the underlying concepts that the words represent and also the associated cultural norms and perceptions. In this article, I will examine the derivation of the English and Chinese words for “dispute” and also two words that are used to describe forms of alternative dispute resolution: “mediation” and “conciliation”.

Let’s start by looking at the derivation of the English word “dispute”. This word derives from the Latin words “dis”, meaning separately, and “putare”, meaning “to consider”, or “to weigh up”. The underlying concept that this suggests is a difference of opinion or a divergence of views. In this respect, the English word “dispute” is close to the Chinese word zhenglun, meaning “controversy” or “debate”.

By contrast, the Chinese word that is most commonly used as the translation of the English word “dispute” is jiufen. Each of the characters in this word means “tangled” or “twisted”. There are a couple of other traditional terms that are used in this sense: jiuge, which literally means “tangled vine”, and jiuchan. The second character in jiuchan, which also means “tangled”, appears in the traditional word chansong, which means “to be involved in a tangled lawsuit”.

The underlying concept that these words suggest is a breakdown of social harmony, reflecting the traditional notion that a dispute between individuals in society – even a dispute of a purely private nature – was a disruption of the natural order and the harmony of the universe. Indeed, one of the traditional meanings for the Chinese word ge, which appears in the compound jiuge, is “disorder”.

Interestingly, the English word “tangle” is also used colloquially to describe a dispute.

Most of us are familiar with the traditional preference in China for resolving disputes privately and avoiding the public exposure associated with court proceedings. In fact, the Chinese word susong, the English translation of which is “litigation”, captures the public nature of court proceedings. The second character song is made up of the speech radical and the character for public, namely, gong. Together, the characters su and song mean “to complain publicly” or “to bring a public grievance”. It is due to the traditional aversion for resolving disputes publicly that different forms of alternative dispute resolution, such as mediation and arbitration, have become so popular in China.

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andrew goodwin
葛安德
Andrew Godwin

A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at law.asia

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