Mediating judges must be innovative to be effective
26 June 2006
I congratulate the Technology and Construction Court on its initiative to trial judges as mediators (The Lawyer, 5 June). But, as with every such pilot, there are qualifications to be made and useful tips to be gained from others' experience.
We need to accept the fact judges are judgmental - that is their job - albeit independently and impartially. This means they will, naturally, be judgmental in mediating, although unrestricted by the detailed procedure they are otherwise required to use in litigating between disputants.
There should be no problem about such a procedure - what the civil law system generally calls conciliation. This is a legal type of mediation that disputants may request, with a few formal requirements and with solutions proposed by the judge - acting as conciliator - that the disputants may accept or decline without prejudice.
However, we need to distinguish this type of mediation from that which generally comes under the umbrella of alternative dispute resolution, which is a commercial, community, or family process, rather than legal, although this is always possible if the disputants so choose.
Judges performing such a legal mediation need to beware of the disputant on a fishing expedition, where one party will agree to mediation and seemingly perform in it but, in reality, gives away as little of its case and interests as possible, while extracting as much of these as possible from its opponent. Experienced commercial (and other) mediators know quickly when this is happening and call the process to a halt. Judges, used to performing in a process that is final, namely litigation, will not have had to deal with this before.
These days, information is so readily available that even legal processes are able to improve by adopting and adapting others' procedures, in whole or in part. I think it would be well worth learning from El Salvador's proposed new code for civil and commercial procedure, for example, which is a major move from the traditional approach where nearly everything had to be notarised, in a lengthy investigative process with many stages with different formalities for civil and commercial cases. The new code is for a substantially oral and adversarial process as well as combining the two in one and including optional and much-recommended conciliation as used to be the case.
I recommend that we in the common law should take note and adopt civilian processes such as this form of 'mediation'. As the saying goes, why reinvent the wheel when there is at least a template of one already available?
If the way forward is as I suggest, there is one other point worth mentioning: El Salvador's civil law attitude towards 'providencia' or 'motivación' - the way leading to and the bases on which to found a legal decision, at least in court mediation. Civilian judges in a civil/commercial case are required, of course, to decide a case according to law. This is primarily according to legislation in force; failing which, according to jurisprudence; failing both, according to common sense.
Most of the uproar in the UK about the proposed 'judges as mediators' initiative is because the protesters have taken the term 'mediation' to mean what the commercial world understands by it. Were the proposed court mediation process to be similar to the commercial concept, then the protesters would have a point. But I am confident that the learned judges perceive what is proposed in a quite different light, more like what I have mentioned - a particular form of legal mediation/conciliation - that would have a far better chance of success and so provide disputants with a useful and optional method for resolution of their conflict; a complementary and alternative process to litigation.