9. Court Mediation as a Public Interest Platform: The Example of Maintenance Fee for Elders in Taiwan

Introduction: Elder Care as Public Interest in Court-Ordered Mediation

When the public interest relates to social issues such as economic development, social hierarchy, or generational injustice, community planning demands that the common good-oriented city model be redesigned. However, the role and function of the judiciary, including local courts, is often neglected. This chapter conducts an ethnography of court-ordered mediation to examine how the process serves the public interest, particularly in the case of disputing elders' maintenance fees. The social context of this case demonstrates how the judiciary serves the public interest, particularly through financial support to the elderly, also known as elders' maintenance fees. Traditionally, both in the domain of family law and in societal practice, it is the adult children’s obligation to support their elder parents' daily living expenses. However, the emphasis on individualism, the distortion of the nuclear family, the burnout of the middle-aged generation, and other contemporary trends have contributed to a situation in which elder parents cannot be financially supported by their adult children. Even worse, elders' social care costs have become a long-term critical issue within the domain of the family. Eventually, elder care expenses could not be solved by the family alone. Therefore, the elder financial support system eventually became the core of the broader public interest and a vital tool for maintaining the well-being of society.

As the individual case of elders' living expenses has become a concern of the common good and has been taken care of under the principle of public interest, elder care costs have been disputed between elder parents and their adult children in family court. The first stage of the dispute process is court-ordered mediation. This chapter examines the mediation process, as led by the family court, in an indictment case filed by older parents against their adult children for living expenses. The court employed its judicial power to mobilize social workers and psychological consultation resources and then reported outcomes to social welfare agencies to sustain the elder care network when the family financial and care functions failed.

Court-ordered mediation functioned in this case as a community service platform. In Taiwan’s family law area, elder care costs—characterized as maintenance fees by previous indictments and legal scholars—have been traditionally considered a private matter. However, this chapter discusses how elder care costs have transitioned from the household sphere into the domain of public interest. The aim of the chapter is to demonstrate this transition through case analysis, with an emphasis on how contemporary society has driven the transition of elder care from private to public interest. Under these conditions, the judiciary branch— specifically court-order family mediation—has become an effective platform for community strategy.

Why has Court-Ordered Mandatory Mediation Became a Community Service Platform?

The mediation system in Taiwan involves parallel township mediation and court-ordered mediation.¹ Township mediation entails enlisting prominent local figures (e.g., elders of a well-established family in the village, people with significant knowledge and experience, or people with higher socioeconomic status) to serve as mediators that help local people address small-scale disputes such as minor traffic accidents, low-intensity labor disputes, or domestic controversies. The concept of township mediation is intended to foster a sense of community. Parties involved are encouraged to use local and community resources to solve small-scale disputes and avoid the need to go to court, with its attendant formality and strict legal procedures. However, traditional township mediation has been affected by rapid social and economic transitions. The influence of such transitions on mediation is described by Jung Shaw-Wu, a Taiwanese anthropologist, in “Culture, Law, and Strategy: Settlement Processes of a District Mediation Committee.” Jung (2007) contends that the local culture, local factional affiliations, and socioeconomic status, both relative and absolute, of the parties and mediators constitute weak points in the authority of township mediation. In contemporary society, it has become difficult to identify the most credible family in the village in the same way it had been in the past. Similarly, it has become difficult to select experts with a certain degree of professional knowledge and mediation skills to negotiate between the disputing parties. Other concerns are whether the parties will trust the “local elites” chosen to serve as their mediators and whether the selected mediator will attempt to achieve a truly fair outcome or simply an expedient solution to resolve the issue (Jung, 2007, pp. 57-104). Furthermore, the increasing atomization and restructuring of society undermines rootedness in one’s locality, and disputing parties can easily obtain extensive information online. Consequently, for younger generations that are more internet savvy and tend to move for job opportunities, township mediation may not be a compelling option. In other words, traditional township mediation seems to have lost the moral and cultural authority on which the legitimacy of its decisions depends. In this context, court-ordered mediation is becoming increasingly important.

In light of how the mediation paradigm has shifted and continues to shift from the township to the court-ordered model, I intentionally selected family dispute mediation as my field and I have worked on this since 2008. I discovered that parties involved in family disputes have a relatively high level of confidence in court-led mediation. In “The Counseling Function of Family Court and Family Dispute Resolution,” Kuo (2016, pp. 354-403) analyzed contemporary court functions and determined that courts of first instance, particularly family courts, have increasingly functioned as service providers rather than performing the more conventional roles of hearing and weighing evidence and handing down verdicts. Courts, for instance, increasingly provide various resources such as education classes for divorcing parents who are in post-divorce family situations, occupational counseling, and self-help legal aid for parties involved in disputes, with the aid taking the form of actual resources that can serve to enhance their knowledge of and confidence in future negotiations. Thus, service-oriented court-ordered mediation by family courts is in keeping with the trend toward courts offering multiple services. This paper presents an analysis of how court mediation functions as a community service platform; a dispute between an older father and his adult children over who should pay the living expenses of the former is examined as a case study below. This study takes place in an urban context; courts in urban areas are in a more privileged position to recruit relatively experienced professionals to serve as the court-mediators when compared to courts in rural areas. This does not mean that people living in rural areas follow so-call traditional values and enjoy reciprocity and happiness with three generations living together. My fieldwork experience indicates that courts in rural area are not able to obtain adequate human resources to build up the type of service-oriented court-ordered mediation. Therefore, in this chapter, I only focus on the cases happening in courts that are located in urban areas.

A Father and His Children Failing to Fulfill Their Roles: An Empirical Case and Analysis

The living expenses of older adults include medical expenditures for chronic diseases, which are paid via the National Health Insurance system (National Health Insurance Annual Report 2019, p. 10) or their national pension.² This policy demonstrates that providing for the living expenses of older adults is in the public interest. However, in accordance with the traditional cultural concept of fulfilling one’s duty of filial piety to one’s elderly parents, Taiwan’s Civil Code specifies that adult children have an obligation to provide for the care of their parents.³ To balance the interests of parents and their children, Taiwan’s Civil Code also provides that if a parent failed to fulfill their parental duty when their child was a minor, then said child—after reaching adulthood—may petition the court. The child may ask to be exempted from their duty or to have it reduced after the court comprehensively reviews the moral, cultural, financial, and psychological conditions of both the elderly parents and their adult children in family cases.⁴

Through my own court-ordered mediation practice, I have come to understand the actual conditions of contemporary Taiwanese society, wherein non-traditional families constitute an increasingly large proportion of families. Given the range of contemporary circumstances, not all older adults are in marriage relationships, and for those who were married and do have adult children, they may not be able to live with their adult children for care as they age or receive further living assistance from their adult children (Kuo, 2017). Therefore, providing for the living expenses of older adults, including medical expenses but excluding various personal expenses, is seen as a public interest matter. Because family dynamics have shifted, the traditional nuclear family model is no longer adequate to the needs of older adults. Consequently, from the traditional point of view, adult children should pay for their elder parents' living expenses to express their affection to the parents, as well as to demonstrate that the filial duty has been well fulfilled. However, this is supplemented by the government in the name of the public good. To provide substantive societal context and to explain the transformation of elder care costs into a part of the public interest, I examine how court mediation has been extended to become a community service platform, with special attention given to the maintenance fee provision of the Taiwan Civil Code in the real case of Mr. A.

The Case of Mr. A

Mr. A was 68 years old, married and divorced twice, lived alone, received a monthly old-age pension of NT$4,000, and participated in the social relief welfare-to-work program operated by the local government, for which he received NT$15,000 per month. Even with the program income, he struggled to make a living, and then the local government terminated the program after only two years because of insufficient financial support and the number of people needing the subsidy. Additional misfortune befell Mr. A when he was involved in a traffic accident and suffered a bone fracture. After the accident, which compounded his problems with chronic diabetes and hypertension, he developed osteomyelitis, his prognosis was poor. His ability to live independently gradually declined, and he eventually moved into a long-term care institution administered by the Social Affairs Bureau of the local government; at that point, he received a low-income subsidy of NT$8,000 per month. However, the cost to live in the institution was NT$20,000 per month. On behalf of Mr. A, the Social Affairs Bureau prepaid one year of the cost of residing in the long-term care facility. The local government then determined that the payment should be borne by Mr. A’s three children, B, C, and D, and requested the court to order the three children to reimburse these prepaid expenses.⁵

Before they could commence litigation, the court ordered Mr. A and his three children to try mediation under court supervision. After more than a year of mediation and the submission of complete accountings of the property and finances of both the father and the children, no satisfactory resolution had been achieved. The adult child B argued that the father, Mr. A, had been married to B’s mother for only one year. After Mr. A and B’s mother divorced, B had been taken care of by his grandmother, who was the mother of Mr. A. Mr. A was not an active participant in B’s childhood, and Mr. A paid neither B’s education nor living expenses. As an adult, B was working as a laborer and only earned approximately NT$30,000 monthly; moreover, he had to pay alimony to his ex-wife. B contended that he already was financially against the wall and could not afford to cover the expenses of Mr. A.

The other two adult children were daughters C and D. They were born during Mr. A’s second marriage. C and D both noted that Mr. A was sentenced to jail after 3 years of marriage to their mother. Then, Mr. A divorced C and D’s mother, who raised the two girls alone. C and D claimed that they had no strong bond with Mr. A as their father. In addition, D’s son had a rare disease, which financially burdened D. Thus, D could not afford to bear the expenses of Mr. A.⁶ The court determined that in the case of B, although Mr. A did not personally take care of B, he had entrusted B to A’s mother. This act was deemed sufficient to fulfill the parental duty of care for B. As for the children from the second marriage, Mr. A had raised the two daughters for at least 3 years, which was also deemed sufficient to establish that A had discharged his parental duty, and thus, C and D were responsible for executing theirs. Therefore, the court ordered that B, C, and D reimburse the maintenance fee prepaid by the local government. The court weighed B, C, and D’s financial abilities and decided that B, C, and D should pay NT$2,000, NT$8,000, and NT$2,000 per month, respectively. B, C, and D are highly likely to resist paying and to appeal the decision. Mr. A, however, may petition the high court procedure to enforce the judgment against children B, C, and D.

In this case, the filial duty of adult children was measured in monetary terms: as a biological father: how many years did Mr. A pay for each child so that the child should be obligated to pay the father back upon reaching adulthood? In this context, the nuclear family was reduced to being understood solely as a financial support unit rather than as something more robust and richer and that includes reciprocal love, respect, and active engagement in family activities. In such a case, what does filial duty mean for elderly parents and their adult children, particularly regarding the responsibility of paying for living expenses? Court proceedings focus only on the financial aspect but have nothing to contribute to creating or honoring an aging plan that accounts for the situations of elderly parents and adult children alike. A mediation process focused on helping Mr. A and his children develop a mutually agreeable future plan would have likely yielded a superior outcome. Additionally, during the mediation, a court-assigned mediator may have introduced more public financing alternatives available from the local government and community, which may have eased the burdens of A, B, C, and D. Because such a process was not engaged, the case will likely be fought bitterly through litigation.

Family Court Mediation as a Service Platform

In 2000, Taiwan’s Judicial Yuan enacted a policy to use mediation flexibly to solve family disputes, having realized that litigation is not always appropriate for solving domestic problems. Family court, unlike other courts, prioritizes helping families resolve disputes without litigation, and hence, family courts provide expert help to families to facilitate communication and negotiation. Judge Peng Nan-Yuan, in a law review article, explains how psychological counseling can be beneficial for parties engaged in mediation, often leading them to greater understanding of the dispute and eventual resolution (Peng 2008, p. 40). Further, Judge Hsieh Ching-Hui indicated that, under current practices, “the court shall provide a mechanism for interested parties to” work through negative emotions holding back dispute resolution, and further recommend “consulting techniques or psychosomatic treatment methods frequently used by social workers, such as empathizing, active listening, or medical diagnosis, [that] are adopted to help interested parties recover to a relatively stable psychological state for them to face and undergo legal proceedings” (Hsieh, 2005, p. 13-15). Meanwhile, I proposed “quasi-consultation” as a lens through which to interpret the function of family courts (Kuo, 2016). For more than two decades, Taiwan’s Judicial Yuan has employed the “quasi-consultation” mode of dispute resolution, which has been integrated into court-ordered mediation. This paradigm has been predominant in family matter resolution in Taiwan.

In the “2008 Family Dispute Mediation (Conciliation) Practical Operation Manual” of the Taichung District Court, for example, a novel procedure called the “mediation double screening mechanism” is described. In this procedure, Judicial Associate Officers (JAO司法事務官) screen cases in the first stage. Subsequently, the JAOs assign cases to suitable mediators depending on the formality examination, characteristics of the dispute, and the professional competency of the mediator pool. In the “formality examination” screening process, the JAOs are able to illuminate those cases that are not able to be solved by the mediation process. Among the mediator pool, available mediators all have different specialties. The family dispute mediators screened, trained, and employed by the court can perform consulting functions to help interested parties solve their disputes. Therefore, before the date of mediation, according to the mediation double screening mechanism, the JAO undertakes a formality review and a mediator is assigned who then communicates with the interested parties, informs them about the mediation process, and works to increase the interested parties' willingness to attend the mediation. After implementation of the “mediation double screening mechanism,” the success rate of mediation increased to 59% in 2008 and the attendance by interested parties on the date of mediation reached 69%. In the family dispute resolution process, mandatory mediation enables the interested parties to gradually clarify their situations with the assistance of court-provided resources and independently develop or jointly negotiate suitable, concrete, and feasible solutions (Yang et al., 2013; Yang et al., 2007).

As the family court mediation system was established and developed rapidly, the judges' burden from handling these tremendously complicated litigations were effectively reduced. Therefore, in the Labor Incident Act that took effect in 2018, the importance of mediation is highly emphasized. In fact, in the current judicial system in Taiwan, particularly at the district court level, mediation is a mandatory process that is supervised by local courts. The courts recruit suitable mediators for various cases, mostly local professionals such as lawyers, social workers, or psychologists. The courts also provide seminars, study groups, and workshops in different fields to help professionals learn from each other. Therefore, this continuous upgrading of the quality of mediators has eventually produced a new model of the judiciary at the local level and has made an impact in the local community, particularly in the area of family law disputes. The more experienced mediators and local courts have created a platform for people who need help with their dysfunctional families. In fact, when the two disputing parties enter the process of court-ordered mediation, the courts can invite municipal resources to help the parties and their relatives negotiate their own satisfactory resolutions.

Court-Ordered Mediation and Its Public Value

After reviewing the history of court-ordered mediation in Taiwan in the last two decades, I would like to point out that at least in the area of family disputes, court-ordered mediation is successful and effective because disputing parties are convinced of the authority of the judiciary and thus are confident in the resources—psychologists and social workers—provided by the courts to help resolve their disputes. On the other hand, mediation is by nature less formal and therefore is highly appropriate for family disputes. For example, elder care in these instances typically involves decades of emotional blackmail and financial shortage or unfair arrangements within the family. Such disputes have made significant impacts not only on a few family members, but also they produce negative influences on subsequent generations and their ongoing family lives. Therefore, the well-established court-ordered mediation mechanism has played a role in successfully addressing the demands of individual cases while also realizing the public value of reducing the relational harm of acrimonious family litigation.

It is particularly notable that all the participants, including the JAO, the court-assigned mediator, and the disputing parties, work to reach a settlement through teamwork. The disputing parties learn key skills, namely negotiation and communication, allowing them to better establish and pursue their future life plans by clearly expressing their intentions. The JAO, the court-assigned mediator, and the professional helpers who participate in the mediation process hone their abilities through their intensive participation in dispute resolution, emerging better prepared to mediate future disputes and assist elderly individuals, thus forming a type of safety net.

When the topic of elder care costs is related to court-ordered mediation and becomes an important public value for reimagining the well-being of the community, I suggest a reconsideration and reactivation of the role of court-ordered mediation. First, I contend that when discussing the contributions of communities or professional groups to urban renewal that involves the public interest, changes in the role and function of district courts should not be neglected. The relatively younger generation in local courts could try to be more flexible rather than resorting to litigation when they are confronted by cases that oppose public interest to traditional family values. They must play a more active role rather than one merely limited to using authorities solving the individual chaos under the umbrellas of the nuclear family or so-called traditional Chinese filial responsibility.

Second, little prior attention has been paid to the fact that family courts are becoming more service-oriented compared to earlier stages of court-ordered mediation. Thus, court-ordered mediation provides services that introduce financial and psychological support resources to interested parties. Winning or losing cases is not the key point. Helping the disputing parties establish a new order in their lives is the goal. Such a new order may pertain to the establishment of a more autonomous, non-biological “chosen” family for individuals who receive varied financial and emotional support from different life stages.

Third, by analyzing the case of Mr. A in the process of court mediation, I suggest that courts should thoroughly review cases in advance of mediation, and carefully assign the appropriate mediator whose professional knowledge can be correctly applied to the case. Meanwhile, when the assigned mediators supervised by the court are able to help interested parties clarify problems, they can also introduce the disputing parties to community resources. When these methods are used during the process of mediation, every participant—including the JAO, mediator, and disputing parties—can better understand the limitations of the law. Ultimately, the court system has its restrictions. The court, the black letter of the law, and court-ordered mediation mechanisms can only realize their professional authority successfully if they engage varied resources to form a platform for redesigning the new city. Nevertheless, pursuing personal happiness and further seeking the common good of the community require a deeper comprehension and cooperation among various professional fields. To achieve the goal of the chosen family as the part a wider community strategy, one cannot rely solely on one approach or a limited area of professionals. In this regard, the judiciary can play an active role at the local level in particular. To maintain court-ordered mediation as a public resource platform, and to achieve the goal of making this mechanism provide public value, a focus that extends beyond solving individual cases will be a concrete step toward the community strategy.

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1. See the Township and County-Administered City Mediation Act (English version). https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=I0020003 ↩︎

2. In 2019, of the total medical expenses of outpatients and inpatients (including emergency clinics) in Taiwan, the expenses of people aged 65 years or older accounted for 38.4%, the highest among all age groups. ↩︎

3. Taiwan Civil Code Article 1115: “In case there are several persons bound to furnish maintenance, the order in which they are to perform such obligation is as follows: (1) Younger lineal relatives by blood; (2) Elder lineal relatives by blood; (3) Head of the house; (4) Brothers and sisters; (5) Members of the house; (6) Daughter-in-law and son-in-law; (7) Parents of either the husband or the wife. Among the elder lineal relatives by blood or younger lineal relatives by blood, the person nearest in degree of relationship will be the first. If there are several persons bound to furnish maintenance and of the same degree of relationship, such obligation shall be borne by them according to their respective economic ability.” ↩︎

4. Taiwan Civil Code Article 1118-1: “If it would be grossly inequitable for a person to be liable for maintenance, he may ask the Court to mitigate such an obligation when the person who is entitled to maintenance has committed one of the following acts: (1) If the person entitled to maintenance has intentionally maltreated, insulted or committed severe misconduct, physically and spiritually, against the person liable for maintenance, his/her spouse, or a close relative of the person liable for maintenance. (2) Without justifiable reason, the person entitled to maintenance did not fulfill his/her obligation to the person liable for maintenance. The provisions of subsection (1) and (2) do not apply to persons entitled to maintenance who are lineal descendants by blood of the person liable for maintenance.” ↩︎

5. This case was adapted from the Taiwan Kaohsiung Juvenile and Family Court decision Jia-sheng-zi No. 62 in 2020, district court decision Jia-qin-sheng-zi No. 242 in 2017, Taiwan Taipei District Court decision Jia-qin-sheng-zi No. 242 in 2017, and Taiwan Taipei District Court Jia-qin-sheng-zi No. 4 in 2017. ↩︎

6. In 2021, the minimum monthly living expenses per person in Taiwan was NT$13,288. The minimum living expense is determined by competent authorities of the central government and special municipalities and is set as 60% of the median of disposable income per capita in the recent year as announced by Directorate-General of Budget, Accounting and Statistics, Executive Yuan. The minimum living expense is reviewed and adjusted according to the living standards of different regions annually to protect the basic economic security of the disadvantaged. The adjustment of the minimum living expense is relevant to the rights of the disadvantaged. Thresholds for other social welfare subsidies, such as living allowances for middle- or low-income senior citizens, living subsidies for people with disabilities, support for disadvantaged children and youth, and support to families in hardship are adjusted according to the minimum living expense, which profoundly affected public finance. For more, see the Department of Social Assistance and Social Work, Ministry of Health and Welfare: https://dep.mohw.gov.tw/dosaasw/cp-530-56282-103.html (last viewed on October 2, 2021). ↩︎