Conflict Resolution|International|Religion

Japan and Bali:More Alternatives to Interest-Based Negotiation

At the recent meeting of the ABA Dispute Resolution Section in Denver, Dai Kato of the University of Colorado and Jay Folberg of the JAMS Foundation offered stimulating — even inspirational — examples of modern-day practices of dispute resolution in Japan and Bali.  These insights test our assumptions of how dispute resolution really works — what drives the process and how success is measured.

Kato spoke of the value placed on a personal attribute called  kizuki:  


This refers to a person’s being aware of what is going on in the room, to understand the flows and tensions between people, to be calm and alert and conscious of what is happening.  The most skilled applicant for a job, said Kato, might not be hired if the prospective employer senses a lack of kizuki.  A mediator’s job, in Japan, is to bring kizuki to bear on an obstinate or locked situation.  This is not a tangible skill; but it is the aim of the traditional Japanese mediator to remind the parties of the insights into themselves and others that every Japanese aspires to.

Another fundamental distinction between Japanese and Western views is the regard in which the natural world is held.  Judeo-Christian societies are comfortable taking control of nature and harnessing its energy for the good of the community.  Japanese culture, on the other hand, accepts the natural state and hopes that, by following nature, a similar “natural” outcome will derive for people.  That is, nature should not be controlled, but learned from.

Extrapolating both principles of “awareness” and “following nature,” Kato said that the Japanese are inclined to “Trust the Universe.”  He showed a news report of a wealthy Japanese businessman who could not, on the merits, decide whether to engage Southeby’s or Christies to sell his art collection.  Instead he handed each representative a sheet of paper and directed them to write down any one of the words “rock,” “scissors” or “paper.”  Christies won — scissors beat paper.  The universe, not the businessman, took control of the decision.

Kato has attended commercial mediations in which any early dispute — such as where the session was to be held, or who sits where at the atble — had been decided by “spinning the pen.”  The disputants are reminded that not everything will be determined by power or by persuasion; some things will be decided (if you will) by the fates. 

The very idea of “self” is difficult for Japanese to understand, said Kato.  The community is taught to rely on others, to get things done together, and in the big things to trust the universe to steer all in the direction that will prove best.  The proposal that a Western judge or mediator approaches problems deviod of predispositions, a mere transparent cipher, and value-less facilitator of the parties’ interests, Kato suggested, was “bullshit.”

Jay Folberg conveyed some of the experience he was privileged to have while co-teaching a conflict resolution class in Bali.  He co-teacher was a respected and accomplished professor in the main city but came from, and whenever possible returned to, his small village. 

Bali is a Hindu island in a prediminately Muslim country of Indonesia, and the Balinese profoundly adopt the concept of karma:  That one hopes in this life to exhibit goodness, kindness and compassion for others, in order in the next life to continue one’s journey towards enlightenment and harmony.  Balinese law, Adat, reflects these principles, and the Balinese themselves live them.

Folberg related an anecdote of riding in a bus with his students when the bus driver — a reliable and skillful man — crashed into a motorcyclist.  Folberg could not see the incident, which was serious enough that the motorcyclist was injured and his scooter incapacitated.  But he watched as the driver spoke with the cyclist and, after some negotiation, offered a small amount of money.  He also volunteered to visit the man’s home in a few days and assist him in some work that needed doing.  In the whole course of the exchange, however, the driver never admitted fault.

The driver, concluded Folberg, never thought that he owed anything because he had been driving poorly — he hadn’t been.  Instead, he owed something because his life was based on doing good to others, on contribuing to the world around him.  He paid, not because he owed anything, but because he could pay, he was led to pay, and it was a good thing to pay.

Anybody been in any negotiations recently where those values prevailed?

  1. Peter


    I was very interested to see the above.

    I thought that you might be interested to know that I have just published “Mediation in England and Wales” in English with translation into Japanese. An excerpt is loaded on Linkedin and J D Supra.

    Kind regards


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