민간조정의 활성화 방안 - 일본의 ADR촉진법을 중심으로 -

Abstract

Alternative Dispute Resolution (ADR) refers to any means of settling disputes outside of the courtroom. ADR typically includes early neutral evaluation, negotiation, conciliation, mediation, and arbitration(Arbitration and mediation are the two major forms of ADR). As burgeoning court queues,rising costs of litigation, and time delays continue to plague litigants, more states have begun experimenting with ADR programs. Some of these programs are voluntary; others are mandatory. Japanese law has long provided for kinds of conciliation or settlement. However, when reintroduced under a new name, “alternative dispute resolution,” this tradition is now seen as an innovation based on foreign models. The diffusion of ADR is one of the central issues for Japan’s judicial reform since the late 1990s, and new ADR law was enacted in 2007. Despite its concept of “alternative justice,” ADR has been controlled by the legal establishment, the Ministry of Justice and the Japan Federation of Bar Associations, in particular. The legal establishment has successfully established and maintained jurisdictional barriers at the legal filed in Japan. Similarly, the legal establishment is getting to dominate the new ADR field as well. The regulations introduced by the legal establishment have become obstacles hindering non-lawyers’ entry to the ADR market. Consequently,most of certified ADR providers are operated by local bar associations. Unlike the United States, non-lawyers in Japan are not successful in professionalizing themselves as ADR experts.