抄録
In this paper, I analyze the function of the Alternative Dispute Resolution and propose a tentative plan for its institutionalization. I have three hypotheses; 1)the civil justice system does not match the contemporary situations, namely the complexity of the society, diversity of values, and collapse of norms; 2)the main reason why the civil jusitice system does not fulfill its mission fully is that the dispute resolution functions concentrate too much at the judiciiary, especially litigations; and 3)With ADR being fully institutionalized, the civil justice system can fulfill its missions.
ADR has unique strength in that its procedure is flexible and adaptive to disputes, in the diversity of the norms employed, and in its emphasis on the parties' agreement. But for the ADR to be instituionalized in Japan three problems must be overcome; 1)the pathological aspects of litigations are used to resist the negotiaions; 2)the Japanese often take only the State agent as being fair and neutral; 3)the lawyers misunderstand ADR and resist to its inception.
So we need a strong policy for Judicial Reform. I propose a tentative plan that new system of ADR shouled be established and most of cases of mediation should be transfered from courts to new ADR.
