What is estate division mediation in Japan? Explanation by an Attorney, Eriko Matsuno.
1. What kind of mediation is estate division mediation in a Japanese court?
This is a mediation procedure conducted at the family court aimed at reaching a resolution when heirs cannot agree among themselves on how to divide the estate. Mediation at the family court is a procedure in which a judge and mediation commissioners serve as neutral intermediaries, organizing and coordinating each heir’s claims and wishes while seeking a resolution (agreement) that is acceptable to all parties.
In other words, estate division mediation is the process of seeking such an agreement at the family court regarding how to divide the estate.
Since this is not a trial, the court does not render a decision but it may proceed to another trial stage afterwards if no agreement is achieved.
2. Main characteristics of estate division mediation
Since this is strictly mediation, it proceeds through “discussions.” Rather than the judge unilaterally rendering a conclusion, the goal is to reach an agreement among all parties.
In this process, mediation commissioners and judges act as facilitators, like conductors. Typically, two mediation commissioners, one male and one female, listen individually to each heir (when an attorney is present, the attorney primarily speaks) and organize the mediation process. It is a procedure that confirms where the parties can reach an agreement or not.
In this mediation, proceedings can typically be conducted without directly facing the other party.
Compared to conducting negotiations outside the court, mediation has a facilitator who organizes the issues, making the points of contention clear. Since everyone is assigned tasks to complete before each session, each party is required to complete those tasks and compile their arguments, which facilitates the entire process. Parties may also be asked to consider what concessions they can make.
Once the issues are organized, the mediation committee often proposes a mediation proposal as a draft agreement. Since this proposal is often reasonable based on established court practice, the majority of parties reach a settlement based on such mediation proposals after consultation with his or her own attorneys.
3. Legal effect of the mediation conclusion record
When parties reach an agreement through mediation in the manner, a court formal record is prepared by the court. This has the same legal effect as a final Japanese court order and can be used for procedures such as transfer of real estate title in the pubic proper registration in Japan, withdrawal of deposits and savings, and compulsory execution afterwards.
However, if an agreement cannot be reached, the mediation ends as unsuccessful. After that, adjudication (a sort of trial for the inheritance matters) proceedings begin.
4. Procedural steps
- Filing: One of the heirs files a petition with the family court having jurisdiction over the place of residence of the other parties, naming all other heirs as respondents.
- Mediation sessions: Parties gather at the court approximately once every one to one and a half months to continue discussions.
- Settlement or non-settlement: The process concludes when all parties have agreed. However, if discussions do not reach a resolution, the mediation is deemed unsuccessful and the procedure automatically transitions to “estate division adjudication.”
- Adjudication: The judge determines the method of division based on his or her judgment.
5. Points to note regarding the relationship between mediation and adjudication
An important point to note is that the documents containing arguments made and materials submitted during court mediation sessions have already been reviewed by the judge. Adjudication will be awarded after the judge reviewed such arguments and materials in order to renders a decision. Therefore, parties should be careful from the mediation stage not to submit materials or make arguments that may be disadvantageous to themselves.
For this reason, it is advisable for parties to have an experienced attorney from the mediation stage.
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