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<xTITLE>Should Retired Judges Mediate?</xTITLE>

Should Retired Judges Mediate?

by Armita Azad
February 2019 Armita Azad
Why use judges to mediate? This is a frequent question and an understandable one, given the relatively high cost of scarce judicial resources and the already heavy demands on judges' time. Mediation need not be conducted by a judge, of course, even within a courthouse setting. However, judges bring to the table particular qualities and skills that make them effective mediators. Firstly, judges have a lot of experience when wanting to intervene between the parties in the dispute. This draws on to the second factor that pertains to the judges commitment to reaching a resolution. Thirdly, judges are already part of a public court system which is beneficial to the parties as in most cases private mediators are too costly. Finally, a judge is knowledgeable of the law and legal issues that may be underlying from the dispute. There has recently been both support and opposition for Supreme court judges to mediate cases. Some judges believe that they should not seek for the parties interests and only apply the law as the judicial system is not designed in a way in which disagreements are to be resolved.

There has been much support and opposition for Supreme court judges to mediate cases. Some judges believe that their role is to only apply the law instead of seeking for the parties interests as the judicial system is not designed to resolve disagreements. History demonstrates that the more than 90 percent of cases that have been filed in court have been resolved through process other than judicial determination. Alternative ways of resolving disputes is also a norm and filing a claim in court is the alternative if the other methods do not work.

Whilst researching on why judges become mediators, I came across various judges views. Justine Cartsley’s perspective is that judges should not become mediators as the judge will use a trial ruling approach when mediating cases. On a general basis, a judge will be asked to mediate a case if they are well qualified, effective, courteous to the parties, mindful of the difference between firmness and coercion and if they are able to try the case fairly if it does not settle. These factors are relevant if the process is voluntary and that the evaluation suggested by Justice Cratley will not apply. [1]  Judge Cratsley on the other hand has the idea that a trial judge may be a good mediator especially when dealing with cases of the ABA rule by attaining the parties consent prior to the mediation by disclosing to the parties and attorneys the settlement techniques of the judge. Cratsley believes that if the mediation is unsuccessful then a judge will be able to manage it as they have the training and will be an effective mediator. [2]

The subsequent article is found in Lawyers Weekly of 11 December 2012 by Lancken and Taneja called “Judging Mediation”. The authors reach to the conclusion that judges are not mediators even when they are in the process of judicial mediation. They are judges and are accustomed to handling disputes differently. [3] Lancken and Taneja analyze mediation in the following manner: They believe that if judges are being mediators then it will be a waste of their time and skills to mediate especially if there are already a lot of private mediators. Moreover, they believe that a judge cannot be impartial when the element of confidentiality and private discussions take place. Lastly,  if a judge mediates a case, the parties may feel pressurized to settle during mediation and may understand their settlements differently as oppose to if a mediator would settle the dispute. [4]

 I will give a third opinion by Chief Justice Warren, as he puts forth the idea that judges should judge and that and they should not diverse their role as mediators or be involved in political and administrative pragmatism. Chief Justice Warren also believes that it is in appropriate for judges to engage in mediation as is will be considered as closed and private justice, instead that they should conduct their work publicly. Mediating behind closed doors implies that the judges are not transparent and the justice is closed, which will result to the community being ignorant of judicial activities. [5]

So then should then judges mediate? Judges introduce skills and qualities that mediators do not attain. They are experienced and can introduce particular skills and qualities that can make them effective mediators. Judges are already part of a public court system and have experience when it comes to parties disputes. They are knowledgeable of the law and have an immense understanding of the legal issues that have caused  the dispute.  This can be an advantage to the parties since arbitration, adjudication and private mediators are costly.

Instead, a mediation can also take place with the absence of judges especially when there isn’t a shortage of highly skilled mediators in practice. Judges have public engagements and it may be improper for them to engage in closed and private justice when participating in mediations as they are required to account for their decisions through statements in court and should be transparent in what they do. If judges participate in mediations behind closed doors then it may imply that justice is closed and the community is ignorant of judicial activities.

Mediation does not have to be conducted by a judge even within a courthouse setting. Some jurisdictions keep mediators as courthouse staff in the same way as court clerks hear motions. However, judges introduce particular skills and qualities that can make them effective mediators.  Judges like to reach to a resolution and to dispense justice and they are already part of a public court system and they have vast experience in the intervention between disputing parties. This is immensely beneficial to the parties since both adjudication and private mediators are costly. Finally, a judge is knowledgeable of the law and they have an understanding of legal issues that allows them to focus on the issues that are underlying the dispute. As the article by Jeff Kichaven points out that not always experienced judges are able to provide a better valuation of the case in comparison to the parties attorneys who are more familiar with the details of the case. Judges may not always have the patience to allow the parties to reach a resolution. [6] The question one must ask is if judges experience is sufficient enough to help settle the case. In my view a judicial mediator begins with the judge being completely neutral between the parties. On the other hand  a privately appointed mediator may be viewed by their parties subconsciously that the mediator may be preferred by their opponent or at least not the party’s preferred mediator. I believe that the best scenario is if a judge can refrain from being quick to judge the outcome, instead they should work with the parties to reach an amicable settlement.

 

ENDNOTES

[1] Lancken, Steve; Taneja, Ashna., Should judges be appointed as mediators? “Legal practitioners are arguing on both sides of the debate”. December 11, 2012. Accessed October 12, 2018. From <http://www.lawyersweekly.com.au/opinion/11179-judging-mediation.>

[2] Polster, Aron Dan., “The Trial Judge as Mediator: A Rejoinder to Judge Cratsley”. March 2007. Available from < http://www.mediate.com/articles/polsterD1.cfm> Accessed Oct 10, 2018.

[3] Lancken, Steve; Taneja, Ashna.,Supra note 1.

[4] Id.

[5] PA, Smith., “A Paper Presented to the Centre for International Legal Studies Mediation Conference. Salzburg, Austria, June 2017. Available from <https://www.courts.qld.gov.au/__data/assets/pdf_file/0005/441185/lc-pub-should-judges-mediate.pdf > Accessed September 07, 2018.

[6] Markowitz, Joe., “Are Judges the Best Mediators”. December 30,2009. Available from        <http://mediate-la.com/are-judges-best-mediators/>Accessed Dec 12, 2018.

Biography


Being awarded with an LLM in International Dispute Resolution and Arbitration from the University of Pepperdine has allowed me to learn more about disputes’ dynamics, national and international laws’ interplay, and the effective mechanisms to address a wide variety of disputes ranging from international commercial disputes to international investment disputes. I have also completed another Masters in International Commercial Law from the University of Westminster in London.  This gave me the opportunity to develop knowledge in the English and European legal system as I nurtured a deep level of knowledge about European Union Law, and wrote my Dissertation on the Liberalization of the Energy Market in the European Union. 

I was awarded with a certification for mediation last year from the Center for Dispute Settlement. Being in Europe where I was raised, provided me with the opportunity to be exposed to multicultural environments and settings. This opportunity has taught me to connect with people that are from a diverse range of cultural, socio-economic and political perspectives. Moreover, my teaching experience in the University of Westminster in London in the area of management and economics enabled me to enhance my learnings in the leadership and communication skills, which has taught me how I can relate to others in culturally sensitive ways. In terms of legal experience, I am director and legal advisor of Nexdon LLC. My duty is to draft contracts, and manage any conflicts that may occur, manage statistical and financial records, set and achieve sales and profit targets, recruit, train,  monitor staff, and negotiate with contractors and suppliers.



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