Should judges be appointed as mediators? Legal practitioners are arguing on both sides of the debate, write Steve Lancken and Ashna Taneja.
What’s in a name? That which we call a rose, by any other name would smell as sweet.”
In that famous quote from Shakespeare, Juliet wants to reassure Romeo that it is his personal character and beauty that define him; not his name. The analogy is simple and powerful.
In recent times, Victorian Supreme Court judges have been given the green light to mediate cases. Many Australian judges have expressed views about this. Earlier this year, Justice Wayne Martin, the chief justice of Western Australia, expressed support for judicial mediation. Other judges that have expressed support include former justice Michael Moore, Judge Margaret Sidis and Justice Monika Schmidt.
There also exists a healthy opposition to judicial mediation. Sir Laurence Street (who has worked as both a judge and a mediator) speaks strongly against the concept, as does respected academic David Spencer, who says: “Judicial mediation is a contradiction in terms. Judges are supposed to judge (not mediate), to apply law (not interests), to evaluate (not facilitate), to order (not accommodate), and to decide (not settle).”
The discussion is important because the prospect of judges mediating cases has the potential to impact the practice of mediation.
The judicial system is not (nor was it designed to be) the primary mechanism by which disagreements are resolved. History demonstrates that more than 90 per cent of cases filed in our court system have been resolved through processes other than judicial determination. ‘Alternative’ ways of resolving disputes are in fact the norm and court determination is the alternative if those methods don’t work.
ADR plays both a primary role in our justice system and a complementary role to litigation by resolving disputes quickly, which may save court resources, as well as litigants’ time and money. ADR puts the parties in control of their outcomes and minimises damage to relationships that would most likely further falter through adversarial litigation processes. Do we really want to risk that value of ADR by having it confused with judging?
Risks occur when judges are appointed as mediators. The concern of Spencer and Street is that if judges play an active, interventionist role in seeking settlement (by acting as mediators), then not only is the vital role they play as final decision makers diminished, but also that judicial intervention disempowers those who may want to make their own decisions. The discussion we need to have is whether these risks outweigh the benefits, not whether judicial mediation is inherently good or bad.
RISKS of judicial mediation
- It blurs the role of a judge. Further, the element of confidentiality and private discussions with parties puts a judge at risk of being seen as not impartial
- If the judicial mediation does not achieve a settlement, it rules out that judge from sitting on the trial, limiting the available judges for the case. Judges are a valuable adjudicative resource and it is a waste of their skills to use their time on mediations, particularly when there are plenty of private mediators
- It might be inconsistent with Chapter III of the Constitution
- Judicial skills of identifying issues, applying law and coming to a determination are not relevant in mediation. Further, there is a risk that a judge may confuse their roles as judges and mediators and conduct evaluative mediations that mimic a trial. This tarnishes the essence of ADR as a facilitative process that puts the parties in control
- People may feel pressured to settle given the status of a judge and may wrongly interpret statements made by a judge during mediation as authoritative
- We may experience a ‘brain drain’ on the judiciary in which judges retire early to pursue careers as professional mediators, placing greater pressure on the court system
- Parties may use it as a ‘test run’ for their litigation.
BENEFITS of judicial mediation
- It avoids litigation by reaching a settlement, which saves time and money
- It introduces a ‘culture of mediation’, allowing courts to embody the concept of a ‘multi-door courthouse’
- It introduces variation in the role of a judge, making the work of a judge more interesting
- The respect that parties have for a judge enhances cooperation and allows for a faster settlement. Judicial mediation records a high settlement rate and hence is successful.
The benefits described in points  and  are benefits of mediation in general, can be achieved by private ADR providers and are not specific to the practice of judicial mediation.
To properly assess the effectiveness of judicial mediation, we must turn our attention to the differences between judicial mediation and alternative ADR services.
The key difference that exists is contained in the category of arguments in favour of judicial mediation, which suggest that judges can and should use their ‘credibility and respect’ to achieve settlements.
Supporters of judicial mediation say the element of respect can be of significant assistance in securing cooperation in the process and willingness to consider options for settlement.
And we can hear the scream (mostly of mediators) that in mediation people should not be influenced in their decision-making by the mediator.
There is research internationally that supports the concern that judges, when engaged in mediation, use power or influence to promote private settlements. For whose benefit are they exercising that power?
If it is for the benefit of the parties then there is an assumption that judges know best what is good for litigants. That is an assumption that can only be supported by a paternalistic view of society that suggests that appointment to the role of judge qualifies that person with a special wisdom about commercial and personal needs and interests of disputants. The proposition only needs to be stated to be exposed as absurd given the (usually) limited business experience of senior lawyers.
Judges should judge. They smell a particular way.
Even if we call them mediators, judges smell the same and research demonstrates they will act in the same way. That means they are not mediators even when they are conducting judicial mediation; they are judges, and the different processes of dispute resolution risk confusion.
Steve Lancken is a mediator and the principal of Negocio Resolutions, Ashna Taneja is a Law Student at UNSW and research assistant with Negocio Resolutions.
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