Conflict Resolution|Courts|International|Mediation

ADR From the Perspective of the Bench

The UIA World Mediation Forum in Houston has generated the usual mixture of stimulation and camaraderie.  The first panel concerned “Mediation: The Judicial Perspective Here and Abroad.”

Aleš Zalar, former Minister of Justice of Slovenia and currently President of the European Centre for Dispute Resolution of Ljubljana, moderated the panel, and speakers included Judge Robert Schaffer of Texas, retired Judge Michele Weil-Guthmann of Paris, and Judge John Woolridge of Texas.

Judge Weil-Guthmann was trained as a mediator at WIPO in Geneva and was so impressed by it that she left the bench to become a full-time mediator.  Judge Woolridge does mediations and arbitrations while sitting on the bench.  Judge Schaffer came to mediation in 1991, soon after the Texas legislation authorizing court-mandated mediation was enacted.   He pursued both his private practice and mediation until ascending to the bench.  That experience served useful to him in his judicial efforts to resolve cases.

Zalar proposed that judges are key players in encouraging mediation in any country.  He termed it the “justice model,” in which mediation is an extension of the services it provides to litigants and also influences the quality of the mediations offered.  This compares to the “market model,” by which litigants themselves drive mediation and encourage the courts to support the effort.  Judge Shaffer noted that every case filed cannot be tried, so a way must be found to resolve them by other means.  The Texas ADR statute was aimed at this goal: It is a “market model” that relies on private providers to supply the services.  Zalar asked whether pressure placed on litigants to mediate may frustrate their legitimate expectations for “a day in court.”  Shaffer characterized the mediation process as empowering, rather than delimiting, disputant’s self-determination.

Judge Woolridge said that judges are responsible for managing disputes and moving them forward expeditiously, in the exercise of justice.  So there are benchmarks for moving the case to be ready for trial, and an ADR date is part of that process.  He gets 90 new cases a month (about 1,500 active cases are on each judge’s docket) and must dispose of at least the same number.  He encourages not only mediation, but mini-trials, summary trials and non-binding arbitration.  Judge Shaffer emphasized the necessity of persuading judges in order for mediation to take a broad hold in other jurisdictions.

Ms. Weil-Guthmann said that, in Europe, judges are less eager to relinquish control over disputes because (at least in part) they perceive that they are responsible to society to resolve disputes in accordance with the law.  They are loyal to the tradition of justice and, in particular, do not want to impose additional private costs to the process.  Nevertheless, it is broadly acknowledged that all filed cases cannot be tried, and that some other means must be found in order for the courts to work.  Judges in Europe need further training to understand the benefits of mediation to the litigants as well as to the courts, as well as assurance of mediation of high quality, attainable cost, and reliable ethics.

Judge Woolridge reminded the group that, in a law school setting, litigation is a right, but in the real world litigation is a costly burden.  Most cases that don’t settle early nevertheless settle later, and the expense incurred in the meanwhile is often a social waste.  (Zalar noted that, in his country, costs are not a factor and the benefits of mediation are seldom cost-savings, but rather certainty, control of outcome, and reduction of delay.)

This introduced an interesting quandary – the Texas judges experience a high rate of settlement when mediation is ordered, while in France the settlement rate is much lower.  Is the difference the familiarity of lawyers and litigants to the process?  Judge Schaffer noted “Nobody in Texas asks what a mediation is.”

It is noteworthy that opposite outcomes are justified by similar concerns.  Advocates of court-mandated mediation cite the interest of the courts in assuring that litigants have a reasonable opportunity to gain satisfactory results, and that judges reserve their time for the cases that must be tried.  So, too, do those reluctant to establish nonjudicial court-annexed mediation programs:  They rely on principles of the right of litigants to have access to the courts, and the courts’ responsibility to ensure that the institution is not subverted or avoided as a socially responsible dispute resolution institution.

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