Chapter 2. Appendix: The records read

Who conducts the mediation, and can the parties require that a mediation committee hear it?

In these practice materials, whether a mediation application was made, the record designating the mediation body, and who presided over the mediation session are confirmed.

One interpretation holds that once a party applies, the mediation is conducted by a mediation committee, unless the case is one referred for mediation that the court hearing the case conducts itself.

Another interpretation holds that even when a committee is convened, who directs the session and how authority is divided must be examined separately.

When an application has been made, how should the makeup of the committee and the person directing the session be determined?

The matter is looked at again if the designation of the mediation body changes or further records of the application are confirmed.

When a pending lawsuit is referred to conciliation, how does the procedure continue?

In these practice materials, the court record of the suit between the debtor company and a supplier and the attendance record of the conciliation sessions are checked.

One interpretation holds that once the case is referred, the litigation is stayed and waits until the conciliation procedure ends.

Another interpretation holds that if conciliation sessions could not be held two or more times because a party did not appear and no decision in lieu of conciliation is made, the case is sent back to the trial court and the hearing continues.

Depending on how conciliation ends after the referral, how is it decided whether the suit ends or returns to litigation?

The matter is looked at again if the attendance at the conciliation sessions or the record after conciliation is closed turns out differently.

Do the presiding judge's power to ask for clarification, the court's recommendation of settlement, and the decision recommending settlement apply unchanged at the preparatory hearing?

In this practice material, we check the course of the preparatory proceedings in the case between the debtor company and the supplier, and what the presiding judge asked the parties to explain.

Under the provisions applied by reference, the view is that the clarification and settlement measures available at a hearing for oral argument remain available in the preparatory proceedings.

Since application by reference only borrows the same measures, the view is that the actor, the method and the effect must each be examined separately.

Which measures at the preparatory hearing become available through application by reference, and which must be confirmed separately?

We review the matter again whenever a proviso or a detailed requirement comes into question, such as an excluded method of service or the persons who may be ordered to appear.

If an employee of a corporate party appears at a conciliation session, does that count as the party itself appearing?

In these practice materials, the delivery record of the notice of the conciliation session, the papers showing the employment of the person who appeared and the written application for permission to act as a representative are looked at together.

One interpretation holds that the party who received the notice must in principle appear in person, so an employee who merely came along cannot easily be treated as the party itself appearing.

Another interpretation holds that where there are special circumstances and permission is granted, an employee may appear as a representative or an assistant, so the effect of the appearance turns on that status.

In what order should it be settled whether the employee who appeared is the party itself, a representative or an assistant?

The matter is looked at again if it turns out differently whether permission was given or whether the case came over from a pending suit.

Why does the outcome differ depending on which side fails to appear at the mediation hearing?

In these practice materials, the records of notice of the mediation dates, who attended each date, and whether the case began as an application for mediation or was referred from a lawsuit are checked.

One interpretation holds that even after an absence a new date is set and the mediation goes on.

Another interpretation holds that an absence is an occasion to wind up the proceedings, for example by a decision in lieu of mediation or by treating the application as withdrawn.

Although the absence is the same, must applicant and respondent, and applied and referred cases, be looked at separately?

The matter is looked at again if a new notice of the date or later attendance changes.

In a conciliation involving many interested persons, who may take part in the procedure and how far?

In these practice materials, how the parties are named in the conciliation application, whether permission to join was granted, the paper appointing a representative party and what the record of the session states are looked at together.

One interpretation holds that once a representative party is appointed, notices and the conduct of the procedure centre on the representative, so the other parties take part only in acts such as acceptance and withdrawal.

Another interpretation holds that because key acts such as acceptance and withdrawal stay with each party, the procedure cannot be brought to a close around the representative alone.

Who should be regarded as the person who accepts the proposed conciliation terms and so brings the conciliation into effect?

The matter is looked at again if the permission to join, the paper appointing a representative party or the scope of what the record states turns out differently.

How is it determined whether a person who appeared at a hearing has authority to conclude a settlement?

In these practice materials, records showing the standing of the person who appeared, what that person said, the mandate and the scope of authority are checked.

One interpretation holds that a litigation representative who appeared and was separately granted authority to settle may conclude a settlement within the scope of that authority.

Another interpretation holds that a dispositive act such as a settlement has no effect unless separately granted authority is confirmed.

Before the effect of the agreement is judged, whose authority should be checked, and in what order?

The matter is looked at again if the nature of the hearing changes or if the records on who appeared and with what authority change.

In an action with co-parties, what happens to the rest when only some of them settle?

In these practice materials, who attended the settlement hearing, what was agreed, and what the record shows are checked together.

One interpretation holds that in an ordinary co-party action the proceedings end only for the parties who settled, while those of the other parties continue.

Another interpretation holds that where the outcome must be uniform for all, a settlement by some of the parties takes effect only insofar as it benefits all of them.

Must the form of the co-party action be settled first before the reach of the settlement is fixed?

The matter is looked at again if what the record covers or the progress of the remaining parties' proceedings changes.

Can what was said at a conciliation session be used as it stands in later litigation?

In these practice materials, the opinions and statements made in the conciliation procedure and how the same matters were dealt with in the later suit are looked at together.

One interpretation holds that even if facts were admitted at a conciliation session, they must be examined afresh in the later suit.

Another interpretation holds that even where something was first said at a conciliation session, if a party restates it of their own accord at a hearing in the suit, what was said at that hearing can be treated as an admission.

How should it be settled which words are opinions and statements in conciliation and which belong to the hearings in the suit?

The matter is looked at again if the same facts are confirmed again at the hearings of the later suit or a quasi retrial comes into question.

When a mediation case ends, what carries over into litigation?

In these practice materials, whether notice of the mediation date could be given, whether the parties reached an agreement, and the ground for closing the case recorded in the minutes are confirmed.

One interpretation holds that where the ground for closing is that mediation succeeded, the dispute should be treated as settled by the agreement recorded in the minutes.

Another interpretation holds that where the ground for closing is failure of mediation or a decision not to mediate, the dispute passes into litigation as it stands.

Does the ground for closing recorded in the minutes confirm an agreement, or does it pass the dispute on to litigation?

The matter is looked at again if the ground for closing recorded in the minutes or the type of document served differs.

How do a decision in lieu of mediation and a decision recommending settlement differ?

In these practice materials, the dates on which the minutes or the written decision for each decision were served are examined together with whether an objection was filed.

Whether the decision has become final and the record of the proceeding that follows are also reviewed.

One interpretation holds that both decisions are issued by the court on its own motion to seek a fair resolution, so that once final they close the proceeding in the same way.

Another interpretation holds that the two decisions must be examined separately, because they arise in different proceedings and lead down different paths after an objection.

Between the proceeding in which the decision was issued and the record of the objection, which must be confirmed first?

The matter is looked at again if the service record or the withdrawal of the objection changes, or if the record of a judgment rendered at that instance appears.

How do a settlement reached on the court's recommendation and a decision recommending settlement differ in effect?

In these practice materials, whether the settlement reached at the hearing was entered in the minutes and whether a certified copy of the decision was served are examined together.

One interpretation holds that a settlement reached at the hearing has the same effect as a final judgment once it is entered in the minutes.

Another interpretation holds that a decision recommending settlement takes effect when no objection is filed within the set period.

How is it decided whether the effect came from the parties' agreement or from the decision standing without objection?

The matter is looked at again if the service record or the entry in the minutes changes.

If an objection is made to a decision recommending settlement, where does the suit go back to?

To answer this question, material is needed on the case record before the decision and on whether the objection was valid.

One interpretation holds that even after an objection, the procedural acts and admissions made before the decision keep their effect, so the record is carried on as it stands.

Another interpretation holds that while earlier procedural acts keep their effect, the decision loses its effect once judgment is given, so the case is heard again without relying on the decision's content.

Until judgment is given, how is the content of the decision to be treated?

The matter is looked at again if the ruling on whether the objection was valid or the record after judgment changes.

Once a settlement reached in court is entered in the record, does it have the same effect as a final judgment?

In these practice materials, what was said at the hearing, the terms of settlement entered in the record and any agreement made out of court are checked together.

One interpretation holds that even if the parties agreed at the hearing, the effect of a final judgment does not arise until the settlement is clearly entered in the record.

Another interpretation holds that where the parties agreed out of court to end the dispute through mutual concessions, the agreement takes effect as a settlement contract even without an entry in the record.

Which should decide the effect, the wording entered in the record, what was stated at the hearing, or an agreement made out of court?

The matter is looked at again if the entry in the record turns out differently or if it changes whether an out of court agreement was formed.