Samurai, Japanese martial arts, the tea ceremony and other stereotypes are known to everyone and are cultivated in many available sources (movies, books).
As the Japanese say: "Our etiquette begins with learning the art of holding a fan, and ends with the rite of suicide."
This phrase is not empty words. Japanese social behavior is highly formalized. The nuances of historical development and the territorial features of Japan led to the creation of a society based on harmonious coexistence, even if this harmony is sometimes purely external.
Such formalized rules of behavior have their own name - kata. Kata is available for almost every occasion. Of course, this is not a written law, but these rules are so well established and so strictly observed that they have become an absolutely integral part of public life.
“But what does this have to do with mediation?” - you may ask.
The most immediate. It was cultural characteristics that led to the active development of mediation as a phenomenon, and then as an institution.
Mediation in Japan: Past and Present
Historically and culturally, mediation in Japan is a purely natural process.
The first so-called. The "constitution" of Japan - the "Shotoku" Constitution (604 BC), which had a great influence on the subsequent legislative acts of the Japanese kings and the formation of the Japanese early feudal state, in the first article determined:
"Harmony is to be valued, and the avoidance of senseless confrontation is to be respected."
Japan has a century-old tradition of non-conflicting dispute resolution methods. Litigation was not known until Western countries introduced it in the late 1800s. To this day, one can often come across the opinion of Japan as a society that does not participate in litigation.
Japan during the Tokugawa period (1603-1867) was divided into four social classes. The hierarchy was: (a) samurai bureaucrats, (b) peasants, (c) artisans, and (d) merchants. The samurai were the highest of the four classes. Peasants, artisans, and merchants were required to be loyal to the samurai and were not allowed to act rudely towards the samurai. In this society, it was believed that arguing is a violation of morality. It was the duty of the senior and authoritative members of society to keep the peace within the limits of their social or political influence and, if necessary, to make every possible effort to mediate. In modern Japan, the class hierarchy has been replaced by a vertical structure based on the relative status of any two individuals. The concept of a vertical society, tate shakai, pervades all interactions between Japanese people.
The position of each person in relation to others, based on age, gender, education and profession, is decisive. This social hierarchy is rooted in Confucianism and Buddhism, with their emphasis on duty and social harmony. Thus, until today, it is believed that disputes should be resolved in such a way as to preserve "harmonious relations" and allow a person to save face.
This is done through conciliation and mediation, not through winning/losing litigation. Although the number of formally adjudicated civil cases has grown steadily since 1983, mediated dispute resolution continues to play a predominant role.
Types of mediation
Today we can talk about three main types of mediation (mediation):
(i) mediation conducted and supported by the court (“Judicial mediation”), which is divided into two types: (a) mediation in civil matters (including commercial matters), other than family matters; and (b) family mediation for family cases only. The latter is mandatory.
(ii) mediation conducted and supported by government entities other than the courts (“Administrative Mediation”).
(iii) mediation established and operated by the private sector (including any foreign mediation organizations) (“Non-Governmental Mediation”).
The most popular and effective alternative dispute resolution method in Japan is court-related mediation ("chotei"), judicial mediation. On average, one in three newly initiated civil cases are resolved by chotei. About 55 percent of judicial mediations end with an agreement between the parties.
In 2020, more than 30,000 civil mediations and more than 130,000 family mediations were initiated.
Features of the judicial mediation procedure:
• Mediation can be initiated by the parties or the court.
• The procedure is guided by a mediation committee established for each case, consisting of a judge and two mediators appointed by the court from the local community (dignified members of the public, 40 to 70 years old, not necessarily lawyers). Committee members are civil servants, perform their duties for 2 years and can be reappointed for a new term. The procedure takes place in the courthouse; it is confidential but the committee may allow (and even request) the participation of third parties interested in the outcome of the procedure.
• The parties must attend the mediation process in person. By law, a representative may attend mediation instead of a party only in exceptional cases.
• The costs of the mediation will be paid at the start of the mediation by the party that offered it. The costs are determined in accordance with the amount declared by the initiating party (from EUR 8.5 to EUR 51.5).
• The committee sets a date and time for the process (usually once or twice a month) and notifies both parties. The procedure is predominantly in the nature of consecutive individual meetings for fear that the parties may not restrain their emotions, which will prevent reaching an agreement.
• The mediator is often the source of specific proposals to resolve the dispute.
• Any party or the committee itself can terminate the procedure.
• The mediation agreement is registered by the court, if it does not contradict the law and public order, after which it has the character of a court decision.
The basis of the process is mutual concessions. Judicial mediation is encouraged in every possible way, both from a social and public point of view, and from the state: the government supports education and training for mediators.
Administrative mediation is common and is conducted by many government committees dealing with issues in specific areas, such as consumer or labor disputes (for example, labor disputes are handled by the Labor Relations Commission).
Non-governmental (private) mediation is carried out by many private organizations (for example, Japan Commercial Arbitration Association - JCAA, Japan Banking Association - JBA, regional Arbitration and Mediation Centers of Japan Bar Associations, Japan International Cooperation Agency - JICA, alternative financial dispute resolution is also provided for by the Law on financial instruments and exchanges).
The Law on Promoting the Use of Alternative Dispute Resolution (Act No. 151 of 2004), which came into force on April 1, 2007, encourages and regulates this type of mediation.
Private intermediaries have the right to undergo a certification process, but this is not mandatory. However, to date, more than 160 organizations are certified (accredited) by the Japanese Ministry of Justice.
The procedures for Administrative Mediation and Non-Governmental (Private) Mediation differ according to the internal rules of the respective mediation body; however, most of the procedures are generally the same as for Litigation Mediation.
An agreement reached through an Administrative Mediation or a Non-Governmental (Private) Mediation shall be deemed to be a mere agreement between the parties. If one party violates the agreement, the other party must obtain a court order before it can enforce the agreement.
Cultural Features
So, back to the reasons that led to the development of mediation dispute resolution. As we already know, the life of Japanese society is formalized and built on a number of key concepts, the very presence of which leads to the fact that the resolution of a dispute outside the standard judicial procedure is preferable.
Here are some of them that directly affect the approach to the negotiation process:
belonging to a group: a person is perceived primarily not as an individual, but as part of a group (clan or company). At the same time, the group is a source not only of material wealth, but also of "kao" - the social reputation, honor, respect provided by the group; a direct consequence of this concept is that decisions will be made by the group so that no one "loses face". Conversely, the actions of a member of the group may have an impact on the reputation of the group, which obliges the members of the group to be extremely prudent in their actions and decisions;
· the concept of social duty: "on" and "giri". Every Japanese from childhood feels "on" - a debt that can hardly be repaid in any way, for example, a debt to parents. As they grow older, the concept of “giri” arises - responsibility due to a certain position in society or a group, for example, the responsibility of an employee to an employer (and vice versa) or a seller to a client;
· Striving for excellence is an integral part of "kata" in all areas of life. Even the smallest deviation from the ideal will be regarded as a failure; the consequence of this approach is long-term decision-making to achieve an ideal result, detailed planning and maximum avoidance of uncertainty in decision-making;
· the concept of harmony "wa" is one of the key in society. Any decisions and actions should serve to strengthen harmony within the group (be it society as a whole, or individual groups, for example, companies). "Wa" is dominant in all respects, including in business. Maintaining "wa" is (in combination with "giri") the responsibility of the company's management. From the point of view of the Japanese, too harsh e and direct questions and answers, assertive behavior in negotiations, a negative answer are manifestations of aggression, which means they violate the harmony of “wa”;
· "nemawashi" - a practical way to resolve the difficulties in making decisions that arise in connection with the above concepts, such as: the need for long-term coordination of decisions with all members of the group, reaching an ideal solution, etc. Nemawashi refers to the development and informal agreement of a decision before it is formally adopted. In practice, this is a series of individual discussions of issues with all members of the group, whose opinion is essential to the final decision. With this approach, the decision is made, as a rule, even before the moment of the general meeting (for example, a meeting or negotiations), and at the general meeting it is only formally announced;
· concept of behavior "honne/tatemae": "honne" is the world of innermost thoughts and intentions of a person, and "tatemae" is a "facade", the purpose of which is to maintain the harmony of "wa" in relationships and serve as a protective screen in communication until then until the other side reveals their true intentions. The transition from "tatemae" to "honne" is not possible in a short time, it requires patience, tact and gentle perseverance. However, only upon reaching the state of “honne” in communication will it be possible to understand the true intentions of the party;
· trust: from the point of view of the Japanese, the foundation of any long-term relationship is trust, not a contract. No detailed contract will help if there is no relationship of mutual respect and trust between the parties;
· benevolence and "amae": benevolence, the goodwill of the strong towards the weak is an indispensable part of culture, and "amae" is the extreme expression of such goodwill. In negotiations, the Japanese will traditionally insist that they are the weak side, expecting indulgence from the other side, and attempts by the other side to take advantage of such an outwardly weak position and put pressure on it will be perceived as a violation of harmony (as aggression);
· Japanese culture is classified as high-context - communications depend to a large extent on the context of the non-verbal part of the message than on the message expressed verbally. In other words, it is necessary to understand what is behind the spoken word, because the main meaning of the message can be much deeper than its verbal expression.
The listed concepts of behavior naturally led to the fact that a system has developed in society in which the conflict itself is a negative event (violating harmony), and the resolution of the conflict is so important that even the party that is right in the dispute will be ready to go to concessions to reach an agreement. This approach, by the way, is a distinctive feature of mediation in Japan - mediation procedures are invariably accompanied by mutual concessions by the parties.
To the above cultural features, over time, nuances of a purely practical nature were added, namely, a very long consideration of cases in courts (one instance can take 3-5 years), as well as the unpredictability of court decisions. The fact is that public opinion condemns the very fact of the conflict, which means that even the injured party that initiated the case in court will be perceived negatively, partly to blame for the conflict. Judges are no exception to cultural rules; their judgments are also subject to generally accepted norms, in connection with which judges are more likely to be guided by the "spirit" of the law, rather than the letter.
The combination of these cultural and practical nuances has created a natural fertile ground for the development of mediation, because the procedure corresponds to all the key concepts and traditions of Japanese society and serves to achieve and preserve the harmony of "wa". It is curious that among the usual advantages of mediation, such as the speed with which we are accustomed to resolving a dispute, the relatively low cost of the procedure, obtaining a controlled result, resolving the dispute in the spirit of win-win, the Japanese single out a quality that is essential for the culture of Japan - the low conflict nature of the procedure compared to judicial resolution of the dispute , as well as reducing the psychological burden in the process of conflict resolution.
Natalya Frolova,
Mediator of the Mediation Center Solis
Sources:
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