Each person born on this earth desires to live out a happy life without regrets. However, no man is an island. One's own happiness is sought in the context of relationships with others.*1 There is infinite variety amongst the countless manners in which individuals pursue happiness. This pursuit also gives rise to innumerable conflicts. This article examines the methods in which these conflicts are resolved from the legal perspective.

Firstly, it is unlikely that anyone believes they can achieve their own happiness alone. As others are also planning how to achieve their personal happiness one should not be able to attain happiness entirely to suit oneself. It is at this point that one compromises or fits in with others' pursuit of happiness. This compromise or 'give and take' is a matter of mutual consent, a contract or agreement between the parties concerned. The state and society of modern developed nations are constructed by the lifestyles of citizens, as the intention, desire or hope of each to pursue their personal happiness is coordinated. This coordination of intentions is the fundamental principle of personal autonomy and when it appears in the context of a contract it is called the fundamental principle of the freedom to contract. The former is viewed from a historical and political perspective, the latter from the perspective of fundamental civil law principles. Together they are the basis of respect for the free will of individuals pursuing happiness. In order to achieve the smooth realisation of agreements based on the individual's free will in France, a notary public *2 and in the United States and the United Kingdom, lawyers peruse and check the content of contracts. However, in Japan it is not customary for a legal expert to be involved at the stage of formation of a contract. As a result when litigation occurs it is not possible to establish the factual content of the contractual promises made and court cases are pointlessly prolonged. In order to eliminate this evil, the current legal reforms will both increase the numbers of lawyers and give the right to give advice to numerous legal experts including lawyers, judicial scriveners, licensed tax accountants and public consultants on social and labour insurance. The proposal is that they would be able to prevent disputes arising from the formation of the contract. Further, it is planned to reform the office of notary public by making a broad public appeal in order to strive to increase their number and make the notary public system user friendly from the public's perspective.

Secondly, there are occasions when it is not possible to perform one's contractual obligations as promised. The duty to do as one has promised is not peculiar to the legal field, however non-performance of a contract is particularly problematic. There is one method of resolution of this problem where the parties play a central role. In another the courts play the central role. The former is ADR; *3 the latter is the court system. Strictly speaking, the typical agreement based on personal autonomy is the antithesis of the typical judgment handed down by a court. There are several dispute resolution systems and bodies between these extremes that take into consideration the essential elements of both options (refer Diagram). Japan focuses on the court system whereas in the United States a variety of ADR systems are in use.

In the United States from the 1960's and into the 1970's the existing court system experienced backlogs and a dispute resolution body separate from the lawsuit became necessary, giving birth to the current variety of ADR options. *4 On the other hand, the circumstances raised as indicators of the necessity of ADR in Japan are usually the following two:

The Judicial Reform Council, which aims to provide a legal system to undergird Japan in the 21^st century actively raised 'The Expansion and Utilisation of Dispute Resolution Methods Outside the Courts (ADR)' in their Opinion Paper. The Council made a three- page statement covering,

The Council's far-reaching recommendations were, in summary,

The Judicial Reform Implementation Centre's ADR Discussion Group is currently making strenuous efforts to bring the proposals to fruition. *5

The general similarities and differences between ADR and the court system have been summarised in the accompanying Table.

In order to decide what kind of system design to use for ADR the first theoretical issue is the kind of dispute resolution system that will be trusted and used by ordinary people, in other words, to what degree can the level of trust afforded the current court system be applied to ADR. The second matter is that even if ordinary people see the system as user-friendly, they will shy away from it if the costs of dispute resolution are high. This is a question of cost benefit analysis. My own opinion accords with the majority opinion. Viewing the first issue from the perspective that the current custom is that the Japanese people feel a strong sense of trust in relation to court cases, a judicial or near-judicial body should be set up. In relation to the second issue it is desirable that the state should bear a suitable proportion of the costs of dispute resolution, at the very least it being necessary that the costs should be less than the current expenses of bringing a lawsuit. If the system is designed in this fashion then, as the state will inevitably be deeply involved, it will be necessary to enact minimal rules under legislation.

Whether to give weight to personal autonomy or to the rule of law becomes an issue in relation to the principle on which ADR will be based. If the people who will use ADR are legally mature or if it is between people of legal character who possess compatibility with information it is possible to utilise personal autonomy as the law's foundational principle. However, whilst after the War Japan became a state under the sovereignty of its people, education at primary and middle school levels on democracy and freedom was flawed. Economic development was first rate but Japan did not develop at the legal level and this brought about the current state of Japanese legal awareness. From the perspective of the awareness of and the degree of penetration of individualism and personal responsibility it may be too early to base a law on personal autonomy. Accordingly I support a system design that strongly emphasises the rule of law. After all, it is desirable that a judge or 'arbitrator' (see below) who understands legal justice and has grasped the claims of the parties should then propose a decision that conforms to justice and invites the consent of both parties. *6

Further, if the system is under consideration then it is important to realise it will be influenced by the specialist skills of the operators of the system, by the ability and competence of the judges or 'arbitrators'. Just as in the case of a lawsuit the theories of bringing a lawsuit and of the conduct of litigation should be systematised. It will be necessary to systematise the various forms of conduct involved in ADR non-court based conflict resolution.

It will be necessary in Japan to create a specialist profession of 'arbitrators' who will bear the responsibility for ADR. Whilst it is possible at this stage to plan to have appropriate arbitrators for various groups, organs and bodies who provide dispute resolution adapted to the special nature of the dispute and characteristics of the parties as in the United States, if this system were introduced to Japan it would be unlikely to gain the acceptance of ordinary people. To create trust corresponding to that placed in judges the profession of 'arbitrator' should be created. Arbitrators should be given independent responsibility for running the ADR system. Those in the legal professions (other than lawyers) should be given guidance enabling them to become arbitrators.

In Japan each 'profession' has its own separate established qualifications. Disputes relating to the professions should be resolved within the profession. It is a given that these professions carry out consulting and business advice in their own specialist fields as well as carrying out their business itself so that it is appropriate that they should also handle disputes which go beyond these extended activities.

The author invites impressions and opinions from readers to h-bunka@lec-jp.com

Diagram: The Relationship between the Rule of Law and Personal Autonomy in Conflict Resolution Methods

Table: Comparison of ADR and Civil Action Procedure

*a An enforceable obligation indicates the existence or scope of a right to apply to have the state use its power to enforce as well as referring to justice legally enforceable justice.

*b See above re enforceable obligation. The order made as a result of a civil mediation procedure is an enforceable obligation as is the order made as a result of arbitration proceedings, however to have enforcement carried out it is necessary to obtain an 'enforcement order' which states the court's consent to enforcement.

*c A Small Claims Court was established by the Civil Procedure Law, which came into effect in 1998. An applicant can act for themselves without difficulty in matters involving less than 300,000 yen and does not require the services of a lawyer.

Reference: Takeshi Kojima and Makoto Ito (eds.), (1998) Saibangai Funso Shori Ho [Law on Settling Disputes Outside the Courts], Tokyo: Yuhikaku.

Source: Materials from the 11th Committee Meeting of the Judicial Reform Council.