This article was first published by The Academy of Experts in The Expert & Dispute Resolver [Volume 28, Number 1 (2023)]. Reproduced with permission.
English is not the author’s native language and we appreciate the time and effort taken to write the article. It has been published as submitted to reflect the author’s intentions.
by PracticeForte advisory affiliate Keiko Tanaka
When you think of Japanese culture, what comes to mind? Samurai? Tea ceremony? Stone gardens? The visible culture of Japan may be easy to imagine, but what about its ideological and linguistic culture? In this article I would like to consider Japanese culture from this less common perspective.
1 Harmony
Mediation as an institution was first introduced to Japan shortly before the judicial reform of 2000. As Japan reconsidered its judicial system, mediation began to receive attention for the first time.
Japan already had a system of discussion and consultation which dates back to 1232 and the enactment of the Goseibai Shikimoku law. This law established a system whereby disputes could be discussed in consultation with the authorities of the time. However it was not until 1875 that conciliation was institutionalised in the judiciary – when the samurai era had come to an end and the influence of Western culture began to be felt in Japan.
In Japan there is a saying: ‘ Harmony is to be valued “ It was written by Prince Shotoku (574-627 AD) in the first article of the Constitution of Japan (AC 604). It is taken to mean: ‘Above all, do not fight, for harmony is the most important thing’. Through his constitution, Prince Shotoku set the cultural norms for Japanese nobility and bureaucracy, and established the Buddhist idea of ‘wa’ (harmony) as the basis of Japanese politics.
This ‘wa’ is of great significance to the Japanese. Many people have a tendency to avoid conflict. The culture of avoiding conflict can lead to avoiding discussion altogether. There is an expression ‘kuki wo yomu’ (reading the air). Japanese people are expected to sense the other person’s feelings and try to understand them without relying on words. This idea that Japanese people all understand one another is also related to the fact that Japan is an island nation, and was closed off from the rest of the world from 1639 to 1854 due to ‘sakoku’, the national isolation policy.
Because of this emphasis on harmony, and the belief that we can understand one another without words, conflict is rarely expressed openly. We tend to bottle things up inside. Because people do not express their opinions openly, it is easy to assume that people around you think the same way as you. Moreover, it is considered shameful to speak to outsiders, including mediators, about one’s relationship problems, whether with family members or at work. And it is highly embarrassing, and bad for one’s appearance, to tell outsiders anything that might shame one’s relatives.
The culture | have described – of not expressing opinions openly, not sharing one’s feelings or circumstances with others, and reading other people’s minds and body language – is still alive today. It remains the prevailing way of thinking, especially outside the capital.
2 Self-determination
The culture I have described above presents some challenges for applying the principle of self-determination in mediation. The tendency of not expressing one’s thoughts openly and reading the atmosphere of people around one is not just seen in mediations and major life decisions – it is also seen in daily life. For instance when going out for a meal with work colleagues, there is an unspoken rule that you can only say what you want to eat once the boss has chosen and it’s generally safest to order the same thing as the boss. Knowing this, some old-fashioned bosses won’t even bother to ask people what they want to eat, but place an order on everyone’s behalf. Nowadays this is changing, especially in the cities. But where hierarchical relationships remain strong, it is often still the case.
So what does self-determination mean in the context of Japanese mediation? | believe parties in Japan can acquire self-determination, but gradually, over the long process of mediation. At the outset of a mediation the parties have only just decided they want to have a conversation, and they’ve only just become aware of mediation and figured out how to access it. At this stage their ability to demonstrate self-determination is likely to be low. But little by little, as the process unfolds, it can change. Over the course of a long struggle they can learn to think for themselves and come to their own conclusions.
As a foreign mediator, when dealing with Japanese clients (excluding lawyers), if you keep in mind these cultural characteristics and allow more time than usual for the mediation, you will hopefully have a more successful and satisfying experience.
3 Language
(1) Forms of address
There are three systems of notation for writing in Japanese: hiragana (which conveys Japanese language and content), kanji (Chinese characters), and katakana (used mainly for words from foreign countries). So if for example we see a word written in katakana, we know that it is either a foreign word or a modern word.
Spoken language is even more complex. In Japan we have ‘keigo’, a different way of speaking to people who are superior in status. You can speak in such a way as to raise the status of the other person or put yourself down, depending on the context. For example, although you would use the same word to address your mother or mother-in-law, the form of verb you use will differ. Given their superior status, parents (whether in-laws or not) are rarely referred to by their name, but rather by the word that describes their position in the family. Moreover family designations vary depending on who is speaking. Younger siblings address their older siblings not by name, but as ‘elder brother’ or ‘elder sister’. For example my younger sister calls me ‘elder sister’, and not Keiko, whilst I and other members of the family call her by her name because she is the youngest in the family. For this reason, if a foreign mediator addresses their client by their first name it might be taken badly.
Another cultural consideration is the use of the word ‘you’. In Japan you should only address someone as ‘you’ if you have higher status, if you are an older person speaking to a close relation, or if your job gives you authority, for instance a government official. Otherwise, it may appear rude.
Given all these considerations, in Japan it is necessary to take time to confirm at the outset of a relationship how you are going to address one another. This is particularly true in the case of mediations.
(2) Word order
If you want to translate the English expression “I can’t get along with him anymore” into Japanese, the word order will be “I him get along with can’t”. In other words, the order is subject, object, verb and auxiliary verb. Through my experience in international mediation cases, I feel that we Japanese have a habit of registering the subject and object as soon as they are spoken, then looking at the speaker’s facial expression and behaviour and guessing the verb and auxiliary verb. Sometimes, of course, we guess wrongly. When you finally hear the last word it can come as a pleasant surprise, or as a disappointment, especially if the sentence is long.
As a foreign mediator working with a simultaneous interpreter, you should be aware that when you get to the end of a sentence the meaning may be completely the opposite of what you were expecting.
The same applies with questions. For example, the English question “What did you feel at that time?” would in Japanese be “You at that time felt what?” or “You at that time what felt?”. The question and verb come at the end. The client, who is listening to the Japanese translation, does not know what the mediator wants to ask until the end of the question, so there is a gap during which his or her imagination can roam wild. If it is a long sentence, this gap is even longer. Hearing the first few words of the interpretation, the client starts thinking about how to answer the question, but when the interpreter reaches the end, the client may discover that the question was not at all what they were expecting. They need to reorganise their thoughts completely. This can be very disorienting for the client.
The same can be said of summaries, which mediators use to play back the client’s story. The longer the mediator talks, the longer the client has to imagine things in his or her head before the verb finally arrives. For these reasons, when communicating through a Japanese interpreter it is worth trying to keep your sentences as short as possible.
4 Non-verbal communication
In Japan we place a lot of importance on non-verbal aspects of communication. The nature of our language and history have led Japanese people to pay close attention to the facial expressions and gestures of people around us when we communicate. As a mediator, in order to build good understanding and ensure a satisfying mediation, you will also need to pay attention to these non-verbal aspects, consider how they relate to self-determination, and figure out how best to support the parties in the light of them.
Conclusion
In this article I have considered mediation in the context of Japanese culture, based on my personal experience as opposed to objective data.
Editor’s Note
You may not be a Mediator or be particularly interested in Japanese culture, however, this article has a much wider value. In addition to the fascinating hidden culture, it has valuable insights for Mediators and Experts (and lawyers) into the importance of language both verbal and unspoken as well as pre-conditioned and not visible attitudes.