11.25Krapp stated that the Japanese mediators exercised a great deal of effort with a view to re-establishing harmony. Mediation can last from two months to an average of six months.1156 Mediation is governed by the “Law for the determination of family affairs” and similarly entitled rules. “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. Mediators are not considered as neutral third parties as they work with the judge who is part of the mediation committee.1157
11.26The courts select a mediation committee which has more than one mediator and one judge. The judge is usually the president of the committee. In 1986, 40% of family mediators were women, in contrast to 10% of mediators for civil cases.1158 Approximately 10% are lawyers but many family mediators are housewives. They do not receive specific training in mediation but have to be 40-70 years old. They have the status of government employees, and are employed part-time for two years. In 1987 there were 13,163 mediators working in the Family Courts.
11.27The mediation process can commence if only one of the parties applies. There is a fine if a party does not attend.1159 In practice, the judge does not attend every mediation session. However, he has control over the process as each session is written up by one of the mediators and sent to him.1160 The judge may have ordered investigation by a psychologist prior to the mediation and the results of the investigation will be passed onto the mediators.
11.28Krapp attended a divorce mediation. In caucus the woman disclosed a secret bank account which she did not want disclosed to her husband. However, at the next session the mediators did disclose it as they took the view that anything disclosed to them is public knowledge as they are the “auxiliary” of the judge. The costs are very low, about US$11.80 for one session. The mediators can refuse to dissolve the marriage and so can a judge.
11.29An agreement which is approved by the presiding judge is binding and enforceable as a judgement.1161 If there is no agreement, the law authorises the judge to terminate the case by a judgement after listening to the parties and taking all the circumstances into account.1162 He then acts as an independent judge of the court rather than as presiding officer of the mediation process. In practice it is rare to make a judgement. If there is no judgement the parties can file a claim. Then a different judge will adjudicate the claim.
1156 Mediation, an alternative method of dispute resolution. Publication of the Swiss Institute of Comparative Law (1991).
1157Krapp, “Court-connected mediation in Japan”. Second International Mediation Conference, Adelaide, January 1996, Conference proceedings, supra at 168.
1158Krapp quotes the Guide to the Family Court of Japan, at 16, (1987), Supreme Court of Japan, Tokyo.
1159 50,000 yen maximum - approximately US$ 394.
1160Krapp, ibid at 171.
1161Article 16, “Law for the Determination of Family Affairs”.
1162Article 24 ibid.