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APOLOGY AS AN ALTERNATIVE DISPUTE RESOLUTION IN JAPAN

Falguni Gupta, 4th Year, Hidayatullah National Law University, Raipur


The notion of apology and wrongdoings is very much related, because unless you did or admit that you have done something wrong, you do not make an apology. In Japan, apologies occupy a prominent position in dispute resolution between individuals and corporate entities and are accepted in both in court and out of court dispute settlements. Apologies are sometimes used for formal legal resolution and not as a liability resulting from admitting wrongdoings.


There are two characteristics of apology as used in Japan that distinguishes it from the apology as used in Western countries:

  1. While a western apology is usually accompanied by an excuse or an explanation of why the wrongdoing happened, the Japanese are more concerned about the fact that the wrongdoer was apologizing than with his explanation of why he did that act.[1]

  2. In the West, a person is innocent until proven guilty and apologizing would be like admitting guilt. Whereas in Japan, an offender can apologize to the injured party as a form of expressing compassion without admitting to fault, which does not necessarily admit wrongdoing. [2]

Cultural Context

Japan has a long history of various methods of Alternate Dispute Resolution including Conciliation (Chotei), Compromise (Wakai) and Arbitration (Chusai), and is often considered as the non-litigious society.[3] The custom of apology, Jidan, can be understood as one form of informal conciliation.


The Japanese language is fairly popular for having apologetic expressions as a part of the polite language. An apology is a kind of moral norm and is sometimes used as a self-effacing speech pattern. So, the Japanese cultural assumptions relating to apology may not be a sudden cultural phenomenon. It had evolved from the Tokugawa period during the 16th to 18th century when the settling of disputes by conciliation was fairly prevalent. The Shogunate considered a civil dispute as less important than the criminal disputes and believed that the civil disputes should be settled without the authority if possible. As the conciliation system was very much institutionalized in Japan, making an apology is to minimize the adversarial confrontation between the two parties and the compromise.


Apology and Civil Law

A wrongdoing happened and a person got injured, you made an apology but how does that relate to computation of damages? What is the benefit of making an apology? Usually in the common law context, there are three damages that relate to the tortious liability, i.e., general damages, incidental damages and punitive damages. But in Japan, there isn’t a clear definition of punitive damages. In that context, the apology sometimes can be beneficial because it could be used in mitigating any further punitive damages.


A public apology is often a desired remedy in cases of negligence against companies and government, the goal of which is to avoid expensive and time-consuming litigation. A typical example is the fatal crash of Japan Airlines in 1982 caused by deliberate acts of the pilot, resulting in 24 fatalities. The president of the company personally visited all the victims and their families, apologized by prostrating before them and offered monetary compensation. As a result, no lawsuits were filed by any of the victims related to the crash.[4]


What’s more, the law authorizes the courts to order publication of apology in a national newspaper as a relief towards restoring the plaintiff's reputation and business’s goodwill in cases of defamation and IP infringement, respectively.[5]


Apology and Criminal Law

Apology as an alternate dispute resolution can be very effective in case of torts, however, it plays very little role in criminal procedure. Although there is no explicit mention of apologies, the criminal law considers apologetic behavior a factor in mitigation of punishment. Offering an apology doesn’t act as a defense to a criminal charge. But if the accused displays remorse for having committed the crime and cooperates with the authorities in reaching a settlement with the victim through offering compensation and an apology, then he’s likely to be released without prosecution. An apology and written letter of apology (shima sushi) are often used as an alternative to criminal charges for minor infractions.[6]


Apology and Corporate Dispute Resolution

The effectiveness of apologies at the corporate level is that sometimes, an apology as a statutory retraction can be used. Retraction means that you make a retract statement saying that what you have done was not correct. There is a concept called a strategic apology. It states that making an apology would benefit or mitigate any kind of compensation or the wrongdoer can negotiate the compensation money. The corporate dispute resolution by making apologies in Japan in most cases can be categorized under this strategic apologizing.


Another example of why Japanese Corporations make apologies is maybe because it can be related to some elements of product liability claims. According to Japanese Civil Law Article 415, the basis for product liability claims falls under contract theory and is not deemed as a tort. It allows a buyer of goods to recover from the seller in case of a defective product only if the claimant can establish foreseeability of harm and adequate causation. However, Civil Code Article 570 states that it allows buyers to recover even if they are unable to prove foreseeability but it limits damages to the value of the product itself. So, it does not provide for personal injury or economic loss suffered. This is another contributing factor that the Japanese corporations are likely to have the apology scheme as a more powerful instrument compared to their counterparts in the USA.


The corporate apology as a mechanism has been a kind of spread ethical obligation among the Japanese Companies. It is common for the President or Chairman of a company to hold a press conference to express sincere public apology for a scandal or misconduct or failure of the company. A famous example is of Toyota Motors, the President in a news conference bowed in front of the camera and issued a public apology for a major recall of automobiles due to safety defects.[7] Hence, corporate wrongdoings and remedies are most often solved by making earnest apologies along with economic reparation.


Conclusion

Apology as a means of dispute resolution has the potential to restore and preserve existing legal relationships and offers hope for mutually beneficial decisions. In most cases, monetary compensation may be a necessary part of relief along with a sincere apology, yet offering an apology would interfere in determining the appropriate compensation. Even in corporate dispute resolution, the public apologies are a kind of linking strategy to solve the complex problems. The existence of Apology in Japanese legal structure may even be a reason for a comparatively low rate of litigation. In the West, Apology is given less priority in legal settlements due to the prevalence of ‘rule of law’ and ‘freedom of speech and expression’. The cultural differences in Japan and the Western societies may explain the different approaches to Apology.








[1] Max Bolstad, Learning from Japan: The Case for Increased Use of Apology in Mediation, 48 Clev. St. L. Rev. 545 (2000), https://engagedscholarship.csuohio.edu/clevstlrev/vol48/iss3/7 [2] David Allen and Chiyomi Sumida, Japanese tradition of apology, Western worry about admitting guilt can clash, Stars and Stripes, https://www.stripes.com/news/japanese-tradition-of-apology-western-worry-about-admitting-guilt-can-clash-1.309 [3] Funken, Katja, Alternative Dispute Resolution in Japan (June 2003). Univ. of Munich School of Law Working Paper No. 24, https://ssrn.com/abstract=458001 or http://dx.doi.org/10.2139/ssrn.458001 [4] Haley, John O., Comment: The Implications of Apology, Law & Society Review, vol. 20, no. 4, 1986, pp. 499–507, www.jstor.org/stable/3053464. [5] Ilhyung Lee, The Law and Culture of the Apology in Korean Dispute Settlement, Michigan Journal of International Law, Vol. 27, Issue 1 (2005), https://repository.law.umich.edu/mjil/vol27/iss1/1 [6] Wagatsuma Hiroshi and Arthur Rosett, The Implications of Apology: Law and Culture in Japan and the United States, Law & Society Review, vol. 20, no. 4, 1986, pp. 461–498, www.jstor.org/stable/3053463. [7] Jeff Kinston, Toyota bows and the Japanese art of apology, BBC News (Feb 10, 2010), http://news.bbc.co.uk/2/hi/asia-pacific/8508531.stm

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