Tradierte Moderne? Zur Entwicklung, Begrifflichkeit und Bedeutung von Schlichtung und Mediation in Japan

Abstract

Japan’s  tradition  of  consensus-oriented  settlement  of  disputes  with the  aid  of  a neutral  intermediary is exceptionally long, though its institutionalised forms and functions have  changed over time. This article examines the history of conciliation and mediation and the  breaks with this tradition that have (also) influenced its specific functionality in modern  Japan.  The authors  sort  the  confusingly  disparate  terminology  of  conciliation  and  mediation, especially as it appears in Western literature. They then analyse the role that  conciliation and mediation play in the present Japanese practice of conflict settlement.

The authors come to the conclusion that the question implied by the headline of the  article – whether conciliation and mediation are traditionally rooted in Japanese law – is  to be answered by a “yes and no”. The form of “conciliation” (naisai) that was solidly  established  in  Japan  over  a  long  time  during  the  Edo  period  probably  does  have  psychological after-effects in present society in terms of an open-mindedness towards non adversarial conflict settlement. Still, this mandatory form of conciliation – which was not  part of a constitutional legal order but was rather its functional substitute – cannot be put  on  the  same  level  as  the  modern  conciliation  that  is  based  on  voluntariness  and  is  integrated into the Japanese legal system as one of many procedural alternatives. Modern  conciliation does not line up in a direct institutional tradition with the naisai system.

On the other hand, the legal institution of conciliation has been used several times  since the beginning of modernisation of the Japanese legal system: initially at the end of  the 19 th century as a transitional solution until the necessary institutions for jurisdiction  were established, then during the 1920s and 1930s in the areas of tenancy and leasing  law as well as labour law in order to handle social frictions, and from the end of the  1940s for family and civil disputes in accordance with the rule of law.

Besides  these  judicial  or  court-related  conciliation  procedures,  a  vast  number  of  ADR institutions – partly of administrative, partly of private nature, and of varying kind  and quality – have developed in post-war Japan due to a lack of efficient and affordable  access to court. Despite the differences in detail, this situation is evocative of the Edo  period  insofar  as,  once  more,  private  institutions  instead  of  the  reluctant  state  are  providing for dispute settlement mechanisms. Although this uncontrolled growth with its  sometimes considerable structural deficiencies was  increasingly incompatible with the  rule of law, the Japanese legislator and jurisprudence have long neglected this development that took place outside the law. The impetus to deal with the subject came instead  in the 1990s from the United States, where ADR procedures have played an increasingly  important role for decades in the settlement of social conflicts. Also, the experiences in  the  U.S.  essentially  influenced  the  embodiment  of  the  ADR  law  of  2004.  Insofar,  one  cannot speak of a continuation of Japanese tradition.