Reasons why judges should not mediate but should be involved in settlement activities
- Tania Sourdin, Australia
This paper explores judicial mediation trends and considers how judges can be effectively involved in settlement activities without necessarily ‘mediating’. Although it is acknowledged that there is no universal definition of mediation, two features that are common in mediation are specifically explored in the context of judicial mediation – confidentiality and private meetings. Each of these features can challenge values and notions about procedural fairness, bias, and transparency when linked with the judicial role and function. These issues may be more problematic in some jurisdictions than others.
The evolving nature of the relationship between courts and Alternative Dispute Resolution (ADR) and more specifically the nature of the judicial function and its relationship with ADR, are considered before discussing the role of judges in relation to judicial settlement conferences. The differing relationship between courts, policy-makers, ADR and practitioners and the philosophical approaches to ADR, vary greatly and has produced a range of different justice integration strategies (which may appear in combination in some courts and tribunals):
1. Pre-litigation or pre-filing ADR — either supervised or unsupervised by courts and tribunals, sometimes falling within the ‘shadow of the court.’
2. Self referred litigation related ADR — where courts and tribunals are not involved and may be unaware that parties are using external ADR.
3. Court connected ADR — involving referral to ADR which might be conducted by external or internal practitioners.
4. Court integrated ADR — involving judicial and quasi judicial officers within courts and tribunals using ADR processes to resolve and manage disputes (processes may include settlement conferences, mediation or concurrent evidence approaches).
The different strategies have led to the development of different approaches to judicial mediation. Arguably, where there is a thriving private ADR market, there may be less need for judges to mediate although there may still be a need for their engagement and involvement in settlement activities. In other jurisdictions, judges have always done mediation type work that has involved private meetings and confidential discussions and even when adjudicating, open and transparent court proceedings have not necessarily been the norm.
In some jurisdictions, particularly those with a common law background, the notion of a judge meeting privately with one party or another has been challenged by theorists, practitioners and others who suggest this may be incompatible with adjudicative functions and the judicial role (and could even invite a corruption of the judicial function). However, the introduction of facilitative judicial strategies that include open court settlement conferences may not raise incompatibility issues. Clearly, there is a continuum of facilitative judicial approaches that can ensure that judicial settlement activity responds to local requirements and cultures.
The reasons why judges should conduct settlement conferences and ‘do’ facilitative work are considered in the context of this evolution and changing court and societal trends and objectives, the support that judges may provide to negotiation activities and in articulating and modelling desired behavioural ‘norms’, the skills and attributes of judges, the objectives of the justice system and the important role that judges can play in court integrated ADR.