There are a number of benefits of mediation. In mediation, parties decide how to resolve their disputes. Parties select a mediator, negotiate supported by the mediator, and decide how to resolve the dispute. Mediation aims at finding a constructive resolution which preserves the good relationship between the parties, and often leads to their good business in the future. In general, mediation does not take as much time as other forms of dispute resolution so the costs are less and are more predictable, and all information, discussions, evidence, etc. disclosed in the mediation process are kept completely confidential.
In litigation and arbitration, a third party such as a judge or an arbitrator has definitive authority to give a binding decision on the dispute. In mediation, the mediator does not have this power - the parties themselves determine the outcome and have full authority to decide how to resolve their dispute.
2. Faster Procedures and Lower Cost:
Litigation and arbitration, as binding procedures, usually involve a reluctant defending party and often take a lot of time, due to their adversarial win/lose nature and formal evidentiary procedures. As a result, legal costs for litigation and arbitration are usually very high and often unpredictable, particularly in the event costs are awarded to the winning party. Mediation, as a voluntary process, generally involves willing participants who, with the support and expertise of the mediator, are motivated to negotiate constructively to find a mutually agreeable solution. This process requires less time, usually 2-4 weeks of preparation and a one-day mediation session. Therefore, the costs are far less than litigation and arbitration and much more predictable.
3. Greater Satisfaction:
In litigation and arbitration, parties focus on defeating the other side by arguing and producing enormous evidence. Mediation aims at producing constructive resolutions which preserve the good relationship between the parties, and often lead to their maintaining their business relationship in the future.
In litigation, almost all arguments and evidence will be public. In mediation, all information, discussions, evidence, etc. are kept completely confidential.
Mediation is generally classified into “Evaluative” and “Facilitative” types, however this classification is ambiguous.
In “evaluative mediation,” the mediator often provides a neutral third-party evaluation of a party’s claims and/or prospective result of the litigation or arbitration. The mediator often plays an active role in pushing for settlement, such as by making a settlement proposal or statement regarding the merit of a side’s case and the mediator’s view about specific issues)
In “facilitative mediation,” the mediator supports the parties to communicate more positively, and tries get the parties to see various means for settling the dispute, thereby assisting the parties to try to settle the dispute by themselves. The mediator neither evaluates the parties’ claims nor provides his/her opinion on the outcome of the case if it were to be adjudicated; instead, the mediator facilitates the parties to recognize a way to resolve dispute by mutual agreement.
In court-annexed mediation in Japan, almost all judges and mediators use evaluative mediation in resolving disputes, but JIMC-Kyoto provides both evaluative and facilitative mediators, as well as mediators who do a mix of evaluative and facilitative techniques, depending on situation and the request of the parties.
“Mediation” is deeply ingrained in Japanese culture and this practical attitude to resolving disagreements has been concentrated in the ancient city of Kyoto, as the former capital and center of Japan for more than 1000 years. It is not too much to say that Kyoto is the center of the Japanese traditional culture of mediation in Japan.
As JIMC-Kyoto is located in Kyoto’s Doshisha University, users of JIMC-Kyoto can proceed to mediation in the calming atmosphere of Kyoto using the facilities of Doshisha University at very reasonable cost. JIMC-Kyoto has notable international advisors, a panel of high-profile international mediators from all over the world, and well-trained and experienced staff members who are international lawyers or professors.
As JIMC-Kyoto is located on the Imadegawa campus of Doshisha University in the center of Kyoto, users of JIMC-Kyoto can proceed to mediation using facilities and human resources of Doshisha University at very reasonable cost. JIMC-Kyoto also has access to facilities in Kodaiji-temple, one of the most famous temples in Japan, and it characterizes JIMC-Kyoto as a special institution for mediation in the world.
Since Doshisha University provides its facilities to JIMC-Kyoto, the cost of administration and facilities are very low compared to other international mediation centers. Please click the link for more details. As for the fee for mediators, it depends on the mediator chosen by the parties.
Mediation is completely voluntary and JIMC-Kyoto will arrange procedures to fulfill the timetables of the parties as much as possible. Depending on the availability mediator chosen by the parties, mediation can held within as little as two to three weeks. Once all parties are ready, the mediation session itself is usually finished in one or two days.
We aim to generally resolve cases within 2-3 months after the commencement of mediation at JIMC-Kyoto.
The success rate of mediation is generally considered to be over 70%. Available statistics for commercial mediation in the UK show consistent rates for settlement above 75%.
A party can file an application form for mediation to JIMC-Kyoto without the written consent of the other party. After JIMC-Kyoto receives the application and the application fee, the secretariat of JIMC-Kyoto will contact the other party and explain the advantage of mediation at JIMC-Kyoto and try to obtain the consent of the other party.
Mediation has many benefits. Parties can decide on their own how to resolve their disputes, with the support of professional mediators, aiming for constructive resolutions which preserve the good relationship between the parties. In addition, it is very cost-effective, does not take much time, and the mediation process is kept completely confidential. These merits would be good items to discuss regarding why the other party should participate in a mediation.
We strongly recommend that you respond to a request for mediation by the other party because mediation could resolve your dispute efficiently as explained in FAQ #? However, the mediation process is under the parties’ autonomy, and even after the mediation process commences, either party has the freedom to walk away from the mediation at any time without cause. This may happen in the case a party believes that there is no possibility of a settlement or a party feels that he or she is not treated property. Therefore, the answer is no, and you do not have to respond to a request for mediation by the other party. In such a case, please let us know your intention by sending a rejection form.
When JIMC-Kyoto receives an application and the application fee from an applicant, the secretariat of JIMC-Kyoto will contact the other party to explain the procedure of a mediation at JIMC-Kyoto and invite them to participate. After JIMC-Kyoto receives the administration fee from both of parties, the secretariat will discuss the procedure of the mediation including the appointment of a mediator. After the appointment of the mediator, JIMC-Kyoto arranges logistics for the mediation and supports the mediator to carry out the mediation session.
Usually mediators request both parties to submit briefs of their arguments and produce documentary evidence beforehand, and then will discuss the issues with each party by phone, prior to the mediation session in Kyoto.
For the mediation session, both parties are required to send representatives of the parties who have authority to settle the dispute on behalf of the parties. Usually at the beginning of the mediation, a mediator has a joint session where he/she will explain mediation, the procedure, and their role, and then have the parties explain their own views and desires regarding their dispute. After the opening session, the mediator will usually talk to each party individually and aim to find a good means to settle the issues of the dispute. If the parties agree on a settlement, the parties, with or without the assistance of the mediator, draft the settlement agreement and both parties sign it. Commonly this is done in a single day, though sometimes the procedure ends at midnight. Until both parties sign the agreement, all statements or agreements are not binding on the parties and will be in strict confidence. Even in the case the parties are not able to reach a settlement, the mediator may follow up with the parties because during the session, both parties understood the dispute from the same standpoint and it will be easier to reach a settlement.
Under Japanese law, prescription (the statute of limitations) will be interrupted when a party makes a judicial claim; in the case of attachment, provisional seizure, or provisional disposition; or when a debtor acknowledges its debt. And a “demand (non-judicial claim)” has an effect of interruption when a judicial claim is commenced within six months. We recommend you to consult your lawyer about the period of prescription.
Finding the right mediator is very important, and selection should be made considering the mediator’s qualifications, expertise and experience. All mediators on the list of JIMC-Kyoto are well experienced in negotiating and resolving disputes involving multiple parties, as is done in mediation. With this common ground among the mediators, parties should next look for a mediator with particular expertise in the area of the dispute and any specific language skills necessary to work smoothly with the parties. In the event the parties have selected more than one possible candidate, JIMC-Kyoto may provide a recommendation or select the mediator with the parties’ consent under its rules.
Parties may see the CV of all members of the JIMC-Kyoto mediation panel, and may request recommendations from JIMC-Kyoto. Arrangements may also be made to ask any questions to the relevant mediator directly.
Parties should discuss the choice of mediator between themselves, and request assistance from JIMC-Kyoto in the event of deadlock. If parties are unable to agree on a mediator, JIMC-Kyoto may select a mediator under its rules, however the parties may always refuse as the mediation is completely voluntary.
In the mediation session, parties and mediators discuss issues aiming at reaching a settlement agreement at the end of the session, therefore participants from both parties are requested to have someone with authority to settle the case.
We understand that even an authorized CEO (a representative director and president) must obtain the approval of the board of directors at a proper BOD meeting to finalize a settlement agreement in Japan, but even in such a case, an authorized person can sign the settlement agreement with a clause stating, “subject to the approval of the board of directors at a proper board meeting.”
Parties should consider carefully the real issues that led to the dispute, and what their goals are to settle. Parties should ask themselves what is the real interest they wish to protect or obtain following the resolution of the dispute and whether it is possible to incorporate non-monetary matters to make a settlement more attractive. Unlike litigation or arbitration where the result is usually limited to financial compensation, in mediation the only limit is the creativity of the parties in finding a solution to their disagreement.
A mediator, once selected, will contact the parties individually to obtain information regarding the nature of the parties’ relationship and the circumstances that led up to the dispute. After performing this basic research and establishing the initial relationship with the parties, the mediator will meet the parties on the mediation day.
Although the practice varies depending on the mediator and whether there is strong hostility between the parties, the mediation will usually begin with a joint session with all parties present. The mediator will explain the rules for the conduct of the mediation, that it is a voluntary and confidential process, and that the mediator is impartial, with the role of assisting the parties to find a settlement to their dispute. The parties will then each be given the opportunity to make a presentation regarding the dispute and their position. The mediator will listen, and may ask questions, and will usually summarize each side’s position after their presentation.
Following this, the mediator will ask each side to retire to their own rooms and the mediator will take turns meeting with each side individually and confidentially to explore their issues and needs further and formulate settlement options. These meetings are called a caucus. These rounds of caucus sessions will be held until the mediator believes the parties are close enough to begin considering terms for agreement on a settlement.
Eventually, after additional caucus sessions have helped to develop a plan and a tentative agreement seems to have been reached, the parties may be brought together to finalize a settlement.
At any time in this process the mediator or the parties may decide further negotiations will not be fruitful and in such case decide to stop the mediation.
When the both parties sign the settlement agreement, it is binding agreement and both parties have a legal duty to comply with the settlement agreement. In almost cases, parties comply with the content of the settlement agreement because they signed the agreement voluntarily and it satisfies their needs.
In the event a settlement agreement is not achieved, the parties may proceed to arbitration or litigation. Even in such a case however, as a result of the JIMC-Kyoto mediation process both parties understand their positions better, have often agreed on many of the previously outstanding issues and settlement is more likely during the arbitration or litigation procedure.
“All disputes, controversies or differences which may arise between the parties hereto, out of or in relation to or in connection with this contract shall be submitted to Japan International Mediation Center in Kyoto for resolution by mediation in accordance with the Mediation Rules of Japan International Mediation Center in Kyoto.”