Despite the widespread consumer satisfaction with mediation as a less expensive, faster, and more satisfying alternative to litigation, such issues as power imbalance, neutralist versus interventionist styles and inhibitions on freedom to divorce continue to generate much controversy in the field of divorce mediation. Building on a paucity of data and the transcription thereof, and drawing on Michel Foucault’s works, this article examines the phenomenon of mandatory divorce mediation in China using critical discourse analysis (at a macro discourse level) and the linguistic mechanisms employed by mediators (at a micro-discourse level), and further argues that, more often than not, influenced by such factors as traditional Chinese values and public policy, instead of being impartial but acting more like patriarchs of the family, mediators take advantage of their privileged position to talk the disputants into reconciliation and make personal evaluations about the party who is to blame for divorce. As a result, freedom to divorce is an illusion in most cases. Consequently, mandatory mediation provides neither a just nor a more humane alternative to adjudication, and divorce mediation actually turns into a process for giving effect to mediators’ values, with the interests of one or both parties more or less jeopardized.
Journal Article. 9364 words. Illustrated.
Subjects: Family Law ; Marriage and the Family
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