Divorce mediation is one form of family mediation under Japan’s Civil Code and Civil Procedures Law. This procedure is often used in Japan.
Family mediation can handle matters which could be solved by personal status litigation (jinji sosho) and any other disputes related to families.
Divorce mediation is accepted since divorce can be handled as personal status litigation:” Mediation in family court generally handles matters defined as matters to be handled as personal status litigation :
・Divorce invalidation, divorce cancellation, recognition of life or death as related to marriage
・Invalidation and cancellation of adoption of a child
・Disputes regarding presence of or absence of parent-child relation
“Other matters generally related to families” are as follows:
・Marriage expenses division
・Parental rights and care of children at the time of divorce (including child support expenses).）
・Property division at the time of divorce
・Determination of parental rights at the time of divorce
・Modification of parental rights
Mediation is a process of reaching agreement. Family mediation demands participation of the parties as a basic principle, even if attorneys are present. Mediation is conducted by one family court judge and two mediators. A family court judge is normally quite busy with a large caseload of mediation cases and will not necessarily get involved in each mediation process. The facts and circumstances will be heard primarily by the two mediators, who will try to resolve issues and reach agreement by the parties. In practice, the mediators are supposed to explain the circumstances to the judge.
Mediators are not judges. Most are not attorneys either. How are mediators chosen? Most mediators are knowledgeable people, teachers and others chosen for their deep knowledge and wide experience in general social issues.
The attorney’s role in a mediation process is to provide support in terms of legal knowledge that is normally lacking among the mediators, who are not legal specialists. However, an attorney represents the interests of only one party and will therefore not advance any points of law advantageous to the other party. Therefore, a disadvantageous mediation outcome is likely when a person undergoes mediation without an attorney. Even when an attorney seems useless because the other party is not represented, the attorney’s mission will be to act on behalf of his or her client. The attorney will not support the other party’s interests under any circumstances.
The mediation results have the same validity as a court’s decision. A mediation agreement is drawn up when the mediation is completed. This document is as effective as a final court decision. Therefore, this is a very effective divorce procedure for deciding parental rights, child support and property division. Setting aside attorney’s fees, the mediation system is easy to use due to the administrative procedure’s extremely low cost and procedural flexibility.