The origins and development of family conciliation in Japan: a political aspect

Abstract

Mediation has a peculiar characteristic as a form of dispute resolution. It is ‘all process and no structure’. Because the final agreement is the justification for the procedure, mediation can accept non-legal intervention in order to help both parties reach an agreement. In Japan, conciliation – ‘mediation conducted by lay people’ – was institutionalized much earlier than in the US, the UK and European countries. In the early twentieth century, it was introduced by government not only to reduce the court's workload, but also to promote settlements based on patriarchal and particularistic values.

The government had tried to introduce a Western legal system as soon as possible after the Meiji Restoration in 1868, but underlying this encouragement of Western-style law lay the aim of abolishing the extraterritoriality which had been conceded to Western countries. The national slogan during the Westernization process was ‘Preserve the Japanese soul and learn Western techniques’. The first family law drafted by a French law professor offended those in power, because it gave rights to family members and put the married couple at the center of a family. This notion of a family system contradicted that of the dominant class in Japan, which gave the head of a family the power to govern family members and put a male filial line at the center of a family.

Therefore, after the re-drafted family law had come into effect, the government planned to exclude all types of family disputes from the ordinary court system. For this purpose, the ‘reform’ of family law, the establishment of a special tribunal, and the introduction of conciliation were planned, though only conciliation was introduced before WWII.

After WWII, in the process of postwar reform, all these schemes came to be realized, although family law itself was changed to comply with the new Constitution. Many prewar conciliators kept their positions after the war. Conciliators were usually retired old men or housewives who were chosen by the court for their ‘good common sense’ and social standing. Conciliators were expected to persuade spouses, particularly wives, to repair and sustain relationships, but as people became less and less subservient to official authority, family conciliation came to be criticized as imposing often obsolete and personal views upon spouses.

However, conciliators have become indispensable assets for the courts. They form a national organization which is the only national organization to support the courts. Conciliators not only reduce the court's workload but also provide significant political support to the courts. The position of a conciliator as a court official is still attractive for retired people and even lawyers. In so far as this mutually beneficial relationship does not collapse, Japanese family conciliation will survive for the foreseeable future.

Keywords:

• mediation
• conciliation
• dispute resolution
• family dispute
• family law

Acknowledgements

The author would like to thank Susan Reid and an anonymous reader for improving the English, though the final responsibility is mine.

Notes

 1. It should be noted that the Meiji Restoration was carried out by former Samurai swordsmen in south-west feudal clans. Before the Meiji Restoration, there had been five classes: swordsmen at the top, followed by peasants, craftsmen, merchants and the underclass. After the Meiji Restoration, new class divisions among noblemen, swordsmen, ordinary people and the underclass were officially maintained until the establishment of the Imperial Constitution in 1890.

 2. ‘Iye’ in Japanese means an extended family as a collectivity with its own property including religious things for ancestor worship. The surname of an extended family represented the ‘iye’ and it was considered most important to perpetuate the name of the ‘iye’ by the succession of the whole property managed by the head of the ‘iye’.

 3. Under the ‘iye’ system, succession of religious things for ancestor worship was considered to be very important. Therefore, the law of inheritance was not considered as a part of property law, but of family law.

 4. Japan started the military invasion of China in 1938 and the government expected an increase in disputes over condolence money, which the government had already experienced after the war against Russia. This time the government expected an even larger increase. Discussions on this point at the Imperial Diet are included in the collection of legislation materials by Horiuchi (1970, pp. 1011–1016).

 5. Though conciliators for disputes other than those of family were all men, women were also chosen for family conciliation. In Tokyo, 25 women were chosen when family conciliation started. The appointment of women to family conciliator was considered to be a great honor for them in the period when female suffrage had not been given. Yet those women were chosen from a small group of educated women with social status, such as medical doctors, educators and wives of high rank government officials (see Anon. 1953, p. 12).

 6. It is not clear whether the adoption of women brought more balanced views to family conciliation, as there were indications that female conciliators tried to impose moralistic views upon wives (see Kobayashi 1951, p. 13, Anon. 1953, pp. 10–11, Anon. 1959a, p. 96).

 7. A female conciliator, who worked in Tokyo, reported that she consulted with a judge only when she had questions regarding the law, while a judge usually sat only in the first conciliation session (see Anon. 1959a, pp. 96–97).

 8. The prewar courts belonged to the Ministry of Justice, but the new Constitution made the judiciary an independent branch of the national government. This reform, based on the American judicial model, helped to spread the image that the Family Court was something like an American democratic institution.

 9. There seemed to be no comprehensive plan to integrate the family tribunal and juvenile tribunal (see Anon. 1959b, pp. 72–83).

10. A family law professor, Nakagawa, was well known for this argument (Nakagawa 1975, p. 3). An influential civil law professor, Wagatsuma, followed Nakagawa (Wagatsuma 1952, pp. 560–563) and the argument was widely invoked to justify the exclusion of family disputes from legal regulation based on rules.

11. In Japan, unlike most Christian countries, marriage can be dissolved by spouses without any legal intervention, in so far as spouses agree on divorce. Therefore, only when spouses do not agree on divorce are they required to go to conciliation, before going to litigation. For divorce procedures and their use in Japan, see Murayama (2010).

12. Conciliation is conducted for civil cases as well as family cases. Civil conciliators belong to the District Court, although most civil cases are conciliated at the Summary Court, rather than the District Court.

13. How the Federation was established was described in an issue of their journal, Chotei Jiho [Conciliation Journal] (hereinafter cited as Jiho [Journal]), 1952 (4), 1–5.

14. Family conciliators, who were in their 60s or 70s and had the authority of court officials, were expected to persuade younger spouses, particularly women, to accept settlements congruent with traditional values which would tell women to endure and stay in a marriage. Even as late as 1967, a section chief of the Family Bureau of the Supreme Court General Secretariat clearly instructed in a meeting with the National Federation that family conciliators should make efforts to prevent spouses from dissolving their marriages (Chotei Jiho [Journal] 1967 (48) 22). Although the percentage of reconciliation in divorce cases increased from 11% in 1960 to 13% in 1970, since then it has steadily decreased from 9% in 1980 to 4% in 2005 (Saiko Saibansho Jimu Sokyoku [Supreme Court General Secretariat] 1961, 1971, 1981, 2005).

15. In 2002, the percentage of family conciliators who were in their 60s at the time of appointment was 57% and that of those in their 50s was 31%, while the percentage of conciliators in their 40s or younger was only 7% (Saiko Saibansho Jimu Sokyoku [Supreme Court General Secretariat] 2003, p. 17). It should be noted that this age distribution was based on the age at the date of appointment and that their appointments were usually renewed. Therefore, the actual age distribution of the family conciliators must be significantly higher than the age distribution shown above.

16. At a conference with conciliators held in Hiroshima in 1986, the Civil Bureau Chief of the Supreme Court General Secretariat instructed family conciliators not to force women to accept settlements which would impose an obligation to remain in intolerable marriages (Jiho [Journal] 1986 (103) 22–23). At a board meeting of the Japanese Federation of Conciliation Associations in 2002, the Family Bureau Chief emphasized the necessity of paying attention to ‘the gender viewpoint’, as judges felt that people increasingly asserted their rights and that family cases were getting more difficult to deal with (Jiho [Journal] 2002 (152) 50).

17. The percentage of lawyers among family conciliators was 11% in 2002. The largest group of family conciliators is people without jobs, mainly housewives, and the percentage of people without jobs was 42% in 2002 (Saiko Saibansho Jimu Sokyoku [Supreme Court General Secretariat] 2003, p. 17).

18. Privileged status for information submitted in conciliation was not seriously discussed. It is still not clear how information submitted in conciliation could or could not be used in litigation.

19. When I interviewed conciliators for research on divorce consultation, I found conciliators strongly conscious of their official position: when I addressed them as ‘conciliator’, they corrected me, saying ‘conciliation commissioner’. The acting president of the Tokyo District Court told me in an interview that there was a long list of lawyers who had asked the court to appoint them to the position of conciliator.

20. ‘Gaikaku dantai’ literally means an outer group collectivity. Ministries of the national government often help the regulated to organize ‘gaikaku dantai’ so that ministries and the collectivities can develop mutually beneficial relationships. Founders of the Japanese Federation of Conciliation Associations emphasized that their organization was the only ‘gaigaku dantai’ for the courts.

21. Before this change, some conciliators begged judges and clerks to assign cases to them or sent gifts to senior conciliators to increase the possibility of obtaining cases (Jiho [Journal] 1962 (33) 6).

22. When family welfare officers were appointed, how conciliators should cooperate with them was a question for discussion. When the Supreme Court allowed a spouse at fault to obtain divorce by changing their precedent, how conciliators should deal with divorce cases claimed by spouses at fault was chosen as a question at meetings. In recent years, gender and domestic violence have been topics for discussion.