Resolving Disputes without Going to Court. Research on Alternative Dispute Resolution System Getting Attention in the U.S.
Associate Professor Shino YOKOTSUKA
Faculty of Humanities and Social Sciences (Law)
Important decisions should be made by the parties concerned, not the judge
Please tell us about your reseachon conflict resolution.Associate Professor Yokotsuka: The word “conflict” doesn’t necessarily something on the scale of bombings and the like, but there are various conflicts in our daily lives, for example, neighbor troubles and fights among family. In order to resolve such conflicts, one might think of hiring a lawyer and having the case heard and resolved in court, but in the U.S., a system called “Alternative Dispute Resolution (ADR) is now receiving attention.
In this system, a neutral third party, called a mediator, stands between the two opposing parties and conducts mediation (arbitration).
Japan also has a mediator system, but mediators in the U.S. are people who have received proper training. The aim is to facilitate communication between the two sides, not to persuade the parties or jump to conclusions. Since people in conflict tend to be emotional, the mediator rephrases words of the parties involved, helping them to learn the other’s perspective and way of thinking in a calm manner and to fundamentally understand why the disagreement or conflict arose and to find a conclusion that both parties can agree on.
I am also a member of the Family Mediation team at the Superior Court of the District of Columbia in the U.S., which deals with issues between couples and parents and children, and I work as a mediator when I am assigned to a case.
Is ADR common in the U.S.?
Associate Professor Yokotsuka: The U.S. is a country with a large racial gap. Even police officers are prejudiced, and there are situations where people are treated with suspicion just because they are black, or where black people are judged more harshly. Despite being a minority, the number of black people in prison is overwhelmingly high. In court, too, the person with more money often has the advantage. The system for judging people should be fare for everyone, but it is not in reality. This is not right, and so systems like ADR have been proposed.
During the COVID-19 pandemic, many people of color working in the tourism and construction industries were first laid off, and then many were evicted from their homes because they could not pay the rent. In a court case, if you cannot pay the rent, it is assumed that you should be forced to leave. Is there anything that can be done about this? ADR has been introduced in various states in order to find a solution from the perspective of both the landlord and the tenant.
In some cases, the parties to the dispute themselves request a mediator, while in other cases the court will request a mediator. Recently, there are more and more judges in the U.S. who think that “rather than the judge coming to a conclusion, wouldn’t it be better if the parties to the dispute could discuss it between themselves and find a better way?” Another advantage of ADR is that it doesn’t cost as much money or time as a court case.
ADR system could also be useful in Japan, where the number of immigrants is likely to increase.
Who serves as a mediator?Associate Professor Yokotsuka: There are individuals and NPOs. However, as is also an issue in the U.S., the mediators are all white. As they are often volunteers, they are wealthy people, such as retired lawyers. The people who are in need are minorities, such as people of color, but the people providing the service are middle class or above. This is a common issue in the field of volunteerism worldwide.
Mediators must take into account the diverse backgrounds and power balance of the parties involved in the dispute, and conduct the arbitration from a completely neutral standpoint. However, I don’t think anyone can be completely neutral. We all have some kind of bias, even if we are not aware of it.
This means that mediators should not be confident that they can be completely impartial, but should instead adopt a humble attitude and be area that they too have biases, and conduct mediation with this in mind. It is also necessary to increase the number of mediators from ethic minority groups and provide multicultural education to mediators.
Do you think it will be adopted in Japan?
Associate Professor Yokotsuka: That is one of my research interests. ADR is a system that was developed in the West, and it can only work if both parties involved are willing to talk. However, many Japanese people are not good at putting their opinions forward. Nevertheless, I think ADR has potential, and I am conducting research on how we can introduce this system to communities with different culture backgrounds and traditions.
It is thought that Japan will continue to accept more immigrants in the future. If many people from different cultures come to Japan, there is a possibility that problems and conflict will occur. In that case, I think the demand for systems like ADR will increase.
Every system has its limits. “Questioning” is important.
Why did you start this research?
Associate Professor Yokotsuka: I studied abroad in the U.S. from graduate school, but even before that I was doing volunteer work to support minorities. The Catholic church I belonged to was very active in supporting refugees. While I had many opportunities to come into contact with minority groups, who are often difficult to recognize in Japan, I began to think I would like to conduct research on immigration.
However, there was not much research being done on immigrants in Japan, so I went to graduate school in the U.S. When I went to the U.S., for example, my neighbor had escaped from the civil war in Yugoslavia, and one of my classmates had experienced the Rwandan genocide, in which his entire family had been killed. Being able to be in close contact with people like this helped me to understand what was happening in the world. There were many different perspectives, and it was a really interesting place to study.
Photo when Associate Professor Yokotsuka attended the International Religious Freedom Summit (IRF Summit) in Washington DC
Photo when Associate Professor Yokotsuka attended the UNAOC Global Forum at the United Nations
Being able to learn from you about a perspective that is hard to come by in Japan is a valuable experience.
Associate Professor Yokotsuka: My academic advisor at graduate school was a person who had experienced standing between two communities as a mediator in Nigeria, where there was constant conflict between Christians and Muslims. The people on both sides hated each other without ever having met. They thought of the other side as evil, based only on what they knew through the media and other sources. She told me that if you bring both sides together and get them talking, little by little, they will see each other as human beings, and they will be able to empathize with each other’s pain at having lost their family members.
In Japan too, there are issues with the Korean residents, and there is also conflict between conservatives and liberals. If students can learn skills like this mediation that will be useful in the 21st century, I think we can create a society where everyone can live together.
Please give us a message for those of us living in Japan, which is changing from now on.
Associate Professor Yokotsuka: Why do conflicts occur? There are as many interpretations and stories as there are people involved. If you think there is one answer, you will never be able to understand this complex phenomenon. There are various systems in society, but even when it comes to the question of whether or not these systems are fair, there are hundreds of ways of thinking about it. Every system has its flaws and limitations, and there are good points and bad points. We cannot know what is fair unless we keep thinking about it if we give up thinking, those in power can manipulate society as much as they like.
As an educator, I want to keep teaching my students the importance of questioning. I want them to become people who can think for themselves and say “that’s not right” when they see that society is heading the wrong direction.
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