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<\/p>\nThe UIA World Mediation Forum in Houston has generated the usual mixture of stimulation and camaraderie. \u00a0The first panel concerned “Mediation: The Judicial Perspective Here and Abroad.”<\/p>\n
Ale\u0161 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.<\/p>\n
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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. \u00a0Judge Woolridge does mediations and arbitrations while sitting on the bench. \u00a0Judge Schaffer came to mediation in 1991, soon after the Texas legislation authorizing court-mandated mediation was enacted.\u00a0\u00a0 He pursued both his private practice and mediation until ascending to the bench.\u00a0 That experience served useful to him in his judicial efforts to resolve cases.<\/p>\n
Zalar proposed that judges are key players in encouraging mediation in any country.\u00a0 He termed it the \u201cjustice model,\u201d in which mediation is an extension of the services it provides to litigants and also influences the quality of the mediations offered.\u00a0 This compares to the \u201cmarket model,\u201d by which litigants themselves drive mediation and encourage the courts to support the effort.\u00a0 Judge Shaffer noted that every case filed cannot be tried, so a way must be found to resolve them by other means.\u00a0 The Texas ADR statute was aimed at this goal: It is a \u201cmarket model\u201d that relies on private providers to supply the services.\u00a0 Zalar asked whether pressure placed on litigants to mediate may frustrate their legitimate expectations for \u201ca day in court.\u201d\u00a0 Shaffer characterized the mediation process as empowering, rather than delimiting, disputant\u2019s self-determination.<\/p>\n
Judge Woolridge said that judges are responsible for managing disputes and moving them forward expeditiously, in the exercise of justice.\u00a0 So there are benchmarks for moving the case to be ready for trial, and an ADR date is part of that process.\u00a0 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.\u00a0 He encourages not only mediation, but mini-trials, summary trials and non-binding arbitration.\u00a0 Judge Shaffer emphasized the necessity of persuading judges in order for mediation to take a broad hold in other jurisdictions.<\/p>\n
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.\u00a0 They are loyal to the tradition of justice and, in particular, do not want to impose additional private costs to the process.\u00a0 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.\u00a0 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.<\/p>\n
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.\u00a0 Most cases that don\u2019t settle early nevertheless settle later, and the expense incurred in the meanwhile is often a social waste.\u00a0 (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.)<\/p>\n
This introduced an interesting quandary \u2013 the Texas judges experience a high rate of settlement when mediation is ordered, while in France the settlement rate is much lower.\u00a0 Is the difference the familiarity of lawyers and litigants to the process?\u00a0 Judge Schaffer noted \u201cNobody in Texas asks what a mediation is.\u201d<\/p>\n
It is noteworthy that opposite outcomes are justified by similar concerns.\u00a0 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.\u00a0 So, too, do those reluctant to establish nonjudicial court-annexed mediation programs:\u00a0 They rely on principles of the right of litigants to have access to the courts, and the courts\u2019 responsibility to ensure that the institution is not subverted or avoided as a socially responsible dispute resolution institution.<\/p>\n","protected":false},"excerpt":{"rendered":"
Judges from Texas, France and Slovenia share notes on the role of the courts in encouraging nonjudicial resolution of litigated disputes.<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11,40,13,14],"tags":[10,39,12,38,33],"class_list":["post-1378","post","type-post","status-publish","format-standard","hentry","category-conflict-resolution","category-courts","category-international","category-mediation","tag-conflict-management","tag-courts","tag-culture","tag-lawyers","tag-public-policy"],"aioseo_notices":[],"_links":{"self":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/1378","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/comments?post=1378"}],"version-history":[{"count":0,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/1378\/revisions"}],"wp:attachment":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/media?parent=1378"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/categories?post=1378"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/tags?post=1378"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}