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In Western countries mediation is a modern conflict resolution process which still presents unresolved problems. Clear unified rules do not exist in this field.

In contrast, Japan has rich experience in mediation. In this country, mediation is a traditional conflict resolution process. It belongs to the culture and is influenced by Japanese religions and philosophers like Confucius. Japan has codified the practice of mediation of civil disputes since many years.

The Japanese system of mediation of civil disputes what is called chotei in Japanese offers interesting aspects for the practice of mediation in Europe and in America. The following report gives therefore an introduction to the practice and legislation of mediation of civil disputes in Japan.

I. CODIFICATION

In Japan mediation what is called "chotei" in Japanese is more often used for the resolution of civil disputes than adjudication(1) and is well integrated into the court system. It exists in Japan in two different forms i.e.: mediation of family disputes and mediation of civil disputes in general.

Mediation of family conflicts is ruled by the "Law for Determination of Family Affairs" and the "Rules for Determination of Family Affairs". In contrast, mediation of civil disputes in general is ruled by the "Law for Conciliation of Civil Affairs" and the "Rules for Conciliation of Civil Affairs".

II. JURISDICTION

Parallel to the division of the law, there are two different courts that have jurisdiction over mediation.

1. Mediation of family conflicts is under the jurisdiction of the family courts which were created in 1949 for the purpose of having special courts for conflicts within families and juvenile delinquency.(2) The processes at the family courts are informal and adaptable to the individual case. The public is excluded. Mediation is given an important role in the family courts and is mandatory for all family cases.(3)

2. The ordinary civil courts have jurisdiction over mediation of civil disputes in general. The competence within the ordinary civil courts is divided between the district courts and the summary courts. While environmental disputes, agricultural affairs,(4) and mining damages are under the jurisdiction of the district courts,(5) mediation of all other civil disputes is under the jurisdiction of the summary courts, independant of the difficulty of the case and the value in dispute.(6)

In contrast to family courts, mediation is not mandatory for cases filed at ordinary civil courts. In these courts, mediation is less important for the resolution of disputes. Consequently, only some judges are in charge of mediation. In the Civil Court of Osaka for example, only three out of twenty judges are dealing with mediation.(7)

3. Even though the tasks of ordinary civil courts are very different from those of the family courts, the mediation processes of these two courts are similar. Subsequently, I will present the practice of mediation of these two courts together, unless there are differences.

III. MEDIATON PROCESS

1. Location
Mediation takes place in the court building. Family courts usually have many mediation rooms while ordinary civil courts only have a few, even in big cities. Often the tables in the mediation rooms are rectangular. The mediators are then seated at one side and the parties at the other side.

2. Beginning of the Process
The mediation process starts when one of the parties demands it by filling out a simple form.(8) This is an important difference to the American, Australien, and European practices where both parties have to consent to go through this process.

If the parties do not request mediation, then the judge decides whether or not the parties have to go through mediation.(9) If he is in favor of mediation, then it is mandatory for both parties. In the United States, there are also some courts (10), where mediation is mandatory for both parties.(11)

3. Presence of the Parties and other Persons
The public is not admitted to the mediation process. However, the court can admit interested persons. The Japanese mediation practice differ from the American one, where other interested persons can be admitted only when the parties agree.

Both parties are obliged to come to the mediation sessions unless they are represented by an attorney. If a party is in default and not excused, it has to pay a penalty of up to 50,000 Yen which is about 441 US $.(12)

IV. THE ROLE OF THE JUDGE

1) The court selects for each case a mediation committee which is composed by two or more mediators and one judge. The judge is the president of the committee. Usually, the courts choose two mediators for each committee.

In Japan, in contrast to the American, European or Australian mediation system, the judge plays an active role in the mediation process. Since he is the president of the mediation committee,(13) he can join in every mediation session. In practice, he rarely does, because he does not have the time. However, even though he might not go to the mediation sessions, he has control over the whole process because he receives a protocol of each mediation session written by one of the mediators.

V. THE MEDIATORS

The mediators must be present at all sessions. Usually, when they start with a case, they are not aware of the problems regarding the case. However, in certain cases, the judge orders investigations prior to the mediation by a psychologist or another investigator of the court. If investigations take place before the mediation starts, the mediators will be informed about the problems of the case before they begin.

Usually, the mediators decide the course of the mediation process. Depending on the problems of the case, they question the two parties either together or separately. If necessary, they may invite third persons who are knowledgeable about the case.

Sometimes the mediators receive instructions from the presiding judge upon their request or his intervention. Often the mediators ask for the advice of the judge when they have questions about the settlement.

Mediators in Japan come from all kinds of professions. They do not need to be lawyers. Approximately 10% of the mediators are lawyers. Many female mediators hired by the family courts are house-wives and a great number of the male mediators is retired from other professions.

A mediator has to fulfil the following conditions: He must be a citizen of good reputatuion, between 40 and 70 years old, and has to have special knowledge in one area of law or to be an expert in any other particular field.

The mediators have the status of government employees. They are employed for two years on a part-time basis. Usually, a mediator is in charge of several cases and comes to the court only when his case is scheduled.

Concerning the sex of the mediators, there are considerable differences between these two courts. Normally, ordinary civil courts hire only a few female mediators. In the Civil Court of Osaka, for example, only about 10% of all mediators are female.

On the contrary, the policy of the family courts is to hire a great number of female mediators in order to have one male and one female mediators in each case, particularly if it is a divorce case. In 1986, for example, 40% of all mediators engaged by family courts in Japan were women.

The earnings of the mediators are comparably low. Professors and lawyers earn as mediators not more than house-wives. A mediator receives approximately between 8,000.- Yen and 1,000.- Yen (about US $ 70.64 and US $ 8.83) (14) per day, depending on the number of cases and length of the sessions (15).

In Japan, there are no courses where candidates can learn about mediation as it is the practice in America. However, the Japanese government sometimes offers courses for those who are already mediators and who are interested to learn more about mediation.

Due to the great number of mediators in family courts, the total number of mediators in Japan is very high. In 1987, for example, 13,163 mediators were working for the family courts alone. As is is considered very special in Japan to be a mediator, the courts can select their mediators out of a great number of candidates.

VI. COSTS OF THE PROCESS

1. The costs of the mediation process at the family courts are very low. Family courts charge only 1,500 Yen which is about US $ 13.24 (16) for one mediation process independant of the value, duration, and difficulty of the case. A divorce case of a rich couple, for example, does not cost more than the divorce of a poor couple. In the family courts, the costs have to be paid by the party who is filing the case.(17)

2. In the ordinary civil courts, it is also the plaintiff who has to pay the costs of the mediation process. However, if the defendant asks for investigations, he has to pay these additional costs.

In contrast to the fixed costs for mediation at the family courts, the costs for mediation at the ordinary civil courts vary according to the value of the case. They are very high, if the value of the case is high. If the value of the case is 10,000,000 Yen (about US $ 88,300), the costs for mediation amount to 27,300 Yen (about US $ 241.00). The mediation process is nevertheless less costly than a civil process. The costs for a civil process are 57,600 Yen (about US $ 508.60) in the example of a case value of 10,000,000 Yen (18).

3. If the parties do not reach a settlement in the mediation process and file a claim, they only have to pay the difference between the costs due for the civil process and the costs already paid for the mediation process.(19)

VII. DURATION OF THE PROCESS

In order to reestablish harmony among the parties, the mediators make remarkable efforts. (20) Consequently the processes have a long duration. In some cases, it takes years before a settlement is reached. On the contrary, other cases are settled after only two months. In most cases, however, mediators need approximately half a year for the mediation process to be completed. (21)

VIII. END OF THE PROCESS

1) If the negotiations between the mediators and the parties are successful and the mediators feel that the case can be settled, they propose a settlement agreement to them.(22) This procedure is different from the Anglo-American understanding of mediation, in which the mediators should not try to impose a settlement on the parties. In Japan, the parties often accept the mediators' proposals, because mediators are persons of authority and well respected. Sometimes more negotiations are necessary.

An agreement which is approved by the presiding judge is binding and executable as a judgement.(23)

2) If the negotiations between the mediators and the parties are not successful, the laws of both courts (24) authorize the presiding judge to terminate the case by a judgement after listening to the parties and taking into account all circumstances of the case. The judge who is deciding a mediation process by a judgement is not acting as a member of the mediation committee but as an independant judge of the court. In practice, it rarely occurs that the judge terminates a mediation process by a judgement.

3) If the parties do not reach a settlement and the judge does not terminate the mediation process by a judgement, the parties can file a claim. In this case, the judge who is presiding over the mediaton committee is usually not the one who decides the civil action. In small courts, however, where there are only a few judges, the same judge might decide the claim.(25)

IX. Cases of the Practice

Now I would like to present three cases of the practice in order to demonstrate to you how disputes are mediated in Japanese courts and how problems in Japan differ from those which might arise during mediation in America and other countries.

1. I will begin to talk about a mediation session which I visited in autumn 1990 at the District Court of Osaka. The mediation process had started some months before this session. The mediation committee consisted of a judge and two male mediators who had retired from their former profession. One of them had been a judge and the other had been an employee in the government administration.

The claimant was the nephew of the defendant. He had been working for 20 years in the press of his uncle, the defendant, when the latter dismissed him. The nephew then had opened his own press which he continued running when the mediation process was going on. He claimed 6,000,000 Yen (about US $ 52,920) from his uncle. The defendant refused to pay to the claimant the requested sum and pretended that his nephew had committed unfair competition during and after his employment.The claimant denied the accusations of his uncle.

The mediation session which I observed began with a joint session with both parties, their attorneys, two mediators and the presiding judge present. The judge did not ask questions and left the session after half an hour. The mediators started by asking questions to the claimant. Since the latter had financial problems with his own press, the mediators asked him whether he would be interested to resume work for his uncle. The claimant was not interested. The mediators then tried to discover, whether the claimant had committed unfair competition. They interrogated him in quite an aggressive manner.

During the twenty minutes questioning of the defendant afterwards, they treated him in a very polite way. The defendant refused to pay the 6,000,000 Yen to the claimant. However, he was prepared to pay him 3,000,000 Yen (about US $ 26,460).(26)

Subsequently, the mediators had a caucus with the claimant and his attorney. They did not disclose to him that the defendant agreed to pay him 3,000,000 Yen. During this caucus, the mediators, particularly the retired judge, questioned the claimant again in a very harsh manner.

At the end, the mediators had a caucus with both attorneys. They let them know that they intended to make further investigations concerning whether or not the claimant had committed unfair competition.

My major observation of this mediation session was the attitude of the retired judge towards the claimant. During a discussion prior to this session, the retired judge had explained to me that a mediator needs to encourage a shy party and to discourage an aggressive one. After this mediation session he confessed to me that he had treated the claimant in a harsh manner, because he believed that the young claimant was lying and that he had treated the defendant in a nice, friendly way, because he believed that the older defendant was an honorable man. This concept of neutrality which one often finds in Japan leaves room for discussion.

2. Another interesting case which I observed was pending in 1990 at the Family Court in Kyoto. It was a divorce case. The mediators, a 69 years old married woman and a retired government employee, created a warm atmosphere through their understanding and friendly attitude.

The husband had asked for the divorce. He already lived apart from his wife, but in the same house. While his wife and their daughter occupied the second floor of their house, he lived alone on the first floor.

During prior mediation sessions, his wife did not agree to a divorce. However, during a caucus with her on the day when I observed the process, she confessed to the mediators that her husband had beaten her. Therefore, she told them, she also wanted a divorce from her husband.

Since the divorce had been decided for by both parties, the mediators' task was now to work out an agreement regarding the financial situation. The wife confidentially shared with the mediators that she kept an important sum of money of which her husband had no knowledge.

The couple lived a traditional Japanese marriage. While the husband was earning money, the wife administered it. Her brother had given them 2,000,000 Yen (about US $ 17,660), which she kept in a bank account. For several years she had put the annual interest rate in another secret bank account. Thus she was able to accrue a considerable sum for herself.

Even though the mediators received confidential knowledge about this money, they decided to impart this knowledge to the husband during the next session.

I was very astonished that the mediators decided to tell the husband about the money. The case helped me to understand that mediators in Japan do not uphold true confidentiality. They act as an auxiliary of the judge. Whatever the parties will disclose to them is official knowledge and will be taken into account when they make their settlement proposal. They are neutral in the sense that they make a settlement proposal according to law and their sense of morality.

Thus, there is no debate in Japan about the duty of a mediator who receives secret knowledge from one party, as it is in Western countries. In these countries, it becomes a problem for the mediator who receives secret knowledge from one party. If he tells the other party about it, he does not keep his confidentiality. On the other hand, if he withholds this information, he might violate his duty of being neutral.

3. Finally, I would like to report to you one case which has been in the newspapers. A German woman, married to a Japanese man, asked for divorce at a Japanese family court. During the mediation process, she told the mediators that she wanted to divorce because her husband had battered her. The male mediator responded by saying that it is fairly normal in Japan for a husband to batter his wife. He himself would do it.

Since the mediators did not agree to dissolve the marriage, the woman filed a claim. However, the judge had the same opinion as the mediators and refused to dissolve the marriage. Finally, the woman filed a divorce claim in Germany, where she was successful.

With this case, I want to show you the powerful influence of mediators in Japan. Differing from Western countries where it is primarily up to the parties to reach a settlement, in Japan, parties need to persuade the mediators. If they are unable to do so, they risk to lose their claim at court.

FINAL REMARKS

The Japanese way of mediating civil disputes is different from the European, North-American and Australien way. Differences can be seen in the facts that Japan has ruled the field of mediation in detail and has well integrated the practice of mediation into the court system. Also the position of the mediator is different in Japan from the same such position in Europe, North-America and Ausralia.

The Japanese mediation system has developed solutions to problems which are still unresolved in Eurpoe, America and in Australia. Despite cultural differences some aspects of the Japanese system could be adopted in other countries. The question concerning which rule of the Japanese mediation system might work in which country and for which kind of court and type of dispute etc. requires, however, more detailed study for their respective contexts.

- Cf. Oki, M. Schlichtung als Institution des Rechts, Rechtstheorie vol. 16, p. 151 - 162, 1985.
- Cf. Art. 1 Law for Determination of Family Affairs.
- See: Art. 18 Law for Determination of Family Affairs.
- Art. 27 Law for Conciliation of Civil Affairs.
- Art. 32 Law for Conciliation of Civil Affairs.
- Art. 3 and 24 Law for Conciliation of Civil Affairs.
- The information about the Civil Court of Osaka is based on a talk with the attorney Imatomi (Miyake Law Firm) Oct. 13, 1990, Osaka.
- Art. 18 Law for Determination of Family Affairs; Art. 2 Law for Conciliation of Civil Affairs.
- Art. 18 (2) and 19 Law for Determination of Family Affairs; Art. 20 (1) Law for Conciliation of Civil Affairs.
- For example: Small Claims Court mediation at the District Court in Quincy (MA).
- Cf. Cohen, L., Mandatory Mediation: A Rose by Any Other Name, vol. 9, no. 1 Mediation Quarterly, p. 33-46 (1991).
- Art. 27 Law for Determination of Family Affairs; Art. 34 Law for Conciliation of Civil Affairs.
- Art. 7 Law for Conciliation of Civil Affairs; Art 22 (1) Law for Determination of Family Affairs.
- The exchange rate used in this report is 8.83 $ US to 1,000.- Japanese Yen taken from December 16, 1996.
- For more details see: Krapp, Court-Connected Mediation in Japan, Second International Mediation Conference, Mediation and Cultural Diversity, Conference Proceedings, Adelaide, Australia, University of South Australia, January 1996.
- See: fn. 14.
- The information about the costs of the process is based on a talk with Mrs. Kawamura (attorney and mediator at the Family Court of Kyoto) Oct. 4, 1990, Kyoto.
- See: fn. 14.
- The information about the costs at the civil court is based on a talk with the attorney Yamashita (Miyake Law Firm) Oct. 5, 1990, Osaka.
- Some parties however are not satisfied with the mediators as some newspaper articles show: Asahi Shimbun of 15.11.90, 30.11.90, 12.12.90 and 22.12.90 etc.
- The information about the duration of the process is based on a talk with the attorneys Imatomi and Hasegawa (Miyake Law Firm) Oct. 11, 1990, Osaka.
- Cf. Art. 137-7 Rules for Determination of Family Affairs.
- See: Art. 16 Law for Determination of Family Affairs; Art. 21 Law for Conciliation of Civil Affairs.
- Art. 24 Law for Determination of Family Affairs; Art. 17 Law for Conciliation of Civil Affairs.
- The information about the end of the process is based in part on a talk with the attorneys lmatomi and Hasegawa (Miyake Law Firm) Oct. 11, 1990, Osaka.
- See: fn. 14.