Mediation: Comparing Approaches – English and Welsh System vs. Japanese Model

Sally Clark Blog

During Family Mediation Week it is exciting to see the increase in engagement from professionals and clients in learning more about the mediation process.

Whilst mediation can play a vital role in the resolution of all manner of civil disputes, it is particularly relevant in family law, as familial matters are often acrimonious and can have lasting impact on all parties involved, be that adult or child. As opposed to civil matters, family matters often require the parties to continue to interact with each other over a long period of time, for example until children reach adulthood and beyond at events such as graduations and weddings. It is this ongoing connection which makes mediation an important resource for solving family disputes with a conclusive agreement and maintain or improving working family relationships.

In the English and Welsh legal system, family mediation can take many forms. At a basic level, mediation involves the use of a neutral third party to facilitate discussions and negotiations between two parties to hopefully reach an agreement. It is common for both parties to sit in one room with the mediator, or in these Covid-19 times, via Zoom. There is also ‘shuttle’ mediation, where the parties are in separate rooms and the mediator ‘shuttles’ between them on the basis that anything said to the mediator can be shared with the other party – again this is currently still able to take place via Zoom and separate online ‘rooms’. There is also co-mediation, which can be useful in complex or high conflict cases and involves two mediators, one of whom will be an experienced family solicitor and the other will have a background in social work or other extensive work with children and families. Finally, there is also the option to engage in mediation with each party having their own legal representative with them, to advise on positions to adopt or unrealistic expectations.

Whilst it would seem we have a solid basis upon which mediation can continue to grow within our legal system as a viable alternative to litigation, there are various countries across the world who already have an extensive history of mediation within family proceedings. In this case, I will be giving a whistle-stop tour of the Japanese system of family conciliation, which is a form of court-connected mediation (kaji chotei) that deals with various family disputes. Unlike the English and Welsh system, full participation in this conciliation/mediation process is mandatory in all family cases. It is normally conducted by a panel consisting of one judge and several lay conciliators who act as mediators. These mediators need not necessarily be legally qualified, and indeed the only qualifying requirements are that they are aged between 40 and 70, and have the life experience required to assist in the resolution of family disputes.

Conciliation mediation is preferred to litigation as it is seen as key to maintaining family relationships and even potentially improving them following the resolution of the conflict at hand. It is also seen to be beneficial as the lay mediators often support the weaker party and intervene forcefully if one party is felt to be overpowering or intimidating the other.

The Japanese form of mediation is unique when compared to the current methods available in England and Wales, primarily due to the inclusion of lay persons in determining the outcome of family disputes. The reasoning behind the use of lay mediators from a variety of backgrounds is to incorporate “common sense” into the resolution of disputes. Furthermore, the idea of mutual concession is a central feature of this form of mediation and it is also enshrined in Japanese statue for all civil matters. This means both parties will attend with the knowledge and expectation that they will have to make concessions in order for an agreement to be reached, thereby reducing the rhetoric often focusing around ‘winning’ the dispute.

Whilst this specific method is unlikely to be adopted by the courts in England and Wales due to hesitancy surrounding the use of lay mediators as well as judicial availability, it is also unlikely to be a coincidence that in 2016 the Japanese family litigation rate was only 1.6%.

If you are wondering whether family mediation may be suitable for you, or have any other questions about the family mediation process or our services, please contact the Harrogate office on 01423 638 272, the Liversedge office on 01274 861 096 or email us.