Many jurisdictions have grappled with the extent to which their courts should get themselves involved in the mediation of litigated cases.
Many different approaches have found favour around the globe, with diverse programs being implemented in courts from Hong Kong to Florida and places in between. Some courts are hands off while others are heavy handed – regulating every aspect and some even use judges to mediate.
Some programs are creatures of statute, others are mandated by procedural rules while others simply rely on a mediation friendly presiding judge. Some courts, I suspect, see mediation as a competitor – taking the best cases out of the system and contributing to the vanishing trial phenomena occurring in many jurisdictions.
At a recent Resolution Institute conference (formerly LEADR) in Auckland, New Zealand a high-powered panel of judges and NZ/UK barristers discussed the appropriate degree of mediation involvement of courts in the New Zealand context in a session entitled Courts and Mediation: A Symbiotic Relationship?
Some would say New Zealand is, on any measure, a mature even sophisticated mediation jurisdiction. So the question arises in NZ and elsewhere, do our courts really need to nudge litigated matters towards mediation or are we better to simply build it and they will come? The research is mixed however it’s clear many litigated cases do not find their way to mediation without encouragement and direction from the court.
Our panel discussed the Continuum of Court Involvement below – being a spectrum ranging from hands off/light touch to mandatory referral of all civil matters.
NZ is in the judicial persuasion space verging on some fairly weak tick box case management levers. I would like to see it move right.
England and Wales are a little further along, utilising pre action protocols and soft (financial) sanctions for unreasonable refusal to mediate.
Singapore is further along still – subscribing to a presumption of ADR (parties can opt out with reasons) in its Subordinate Courts – resulting in around 6000 mediations annually.
At the far right of our continuum are many courts in mature jurisdictions, most notably some states in the US and Australia, which not so much nudge as two hands push disputes out of the courtroom into the mediation room.
Some refer selected litigants to mediation without their consent however most stop short of a wholesale referral of all civil filings. Or as Nadja Alexander puts it, there exists discretionary mandatory, soft mandatory and routine mandatory.
To some extent, many of the issues that arise within the court environment (confidentiality, status of the outcome etc.) are different from those where mediation is outside it, however part of the problem with court programs is that often they are designed by people who know little about mediation but know everything about court process. Add to that judges who use the ability to refer cases out as a blunt instrument (maybe even as a hospital pass) without understanding the nuances of the process.
If one gets past that old chestnut of mediation being a voluntary process therefore how can there be any coercion of any kind by anybody (coercion into mediation/coercion within mediation) then the litigation community’s primary concerns appear to be;
1. what cases are mediated
2. how that referral takes place
3. who selects the mediator
4. who pays the mediator
Florida and the England are good examples of how two justice systems have approached these issues.
Florida is widely seen as the pre-eminent US state when it comes to court connected mediation. Some figures have over 100,000 cases being referred out annually. Florida judges have the ability to order cases to mediation and parties have the ability to challenge that referral on grounds that the case has already been mediated or that it involves a question of law only or “for other good cause”. Florida’s success is in large part due to the fact that parties can choose their own mediator.
The English soft sanctions approach is perhaps more familiar to readers of this blog. It is one that I favour as stopping short of mandatory referral but having enough teeth to nudge cases that would not otherwise get to the mediation table. While there is much to say and cases to read, essentially the English position allows judges to impose financial sanctions (in the form of costs) if a party unreasonably declines to mediate, in some cases whether or not they prevail at trial. One of the latest cases in the Halsey line of cases is Laporte & anor v Commissioner of Police of the Metropolis
Other Common Law jurisdictions take a similar approach, for instance, Hong Kong’s District Court recently imposed adverse costs orders against a party who unreasonably refused to mediate; Wu Yim Kwong Kingwind v Manhood Development
[a useful summary of both cases by Herbert Smith Freehills here and here]
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Gosh, the “high-powered panel” certainly got NZ right! Did it include any Family Court Judges? The problem is that there is zero chance of any symbiosis while the Ministry of Justice continues to maintain it’s hands-off stance on the changes it steered in the new Family Justice System. And, I quote a recent official information release that I requested on the matter of what administrative processes/procedures were in place for ensuring a judge is able to consider a s 46F(2) Care of Children Act 2004 direction to refer to FDR. Answer? “The decision to refer to FDR is a power for the judge to exercise and the Ministry is not responsible for ensuring this. Therefore, your request for this information is declined under s 29(2)(a) of the Official Information Act.” I was referred to the Institute of Judicial Studies to enquire about judicial training. If I were a Judge, I would be feeling a bit miffed about that. Hello, what about s 4(1)(a) Care of Children Act 2004 — “The welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration — in the administration and application of this Act …”. “In the administration …” speaks to me of a role for the MOJ?
In SouthAfrica we battle with the very issues discussed here – we have a cadre of well trained mediators with very little work ! The question is whose responsibility is it to raise awareness and advocate mediation ? The policy makers acknowledge it the lawmakers include in legislation
The courts need in order to alievate congested court roles but nobody enforces it !
There is room for symbiosis. Many people think people in conflict already know about the existence of the many ADR processes including Mediation even in the developed jurisdictions. They therefore spent little time, effort and money in awareness and assisting people to choose an appropriate form of conflict resolution. Most people world wide turn to the Courts when they have a dispute because that is the only form of dispute resolution they know exists for a resolution of their conflicts. This has led to serious backlogs in the Courts , which has in turn caused a number of jurisdictions to activitly prompt the use of ADR. Courts are thus very significant gate keepers for Mediation and other forms of ADR. This calls for a more active and direct role for the Courts.
There are cases in the Courts’ list that ought not to be there. In other words, there are cases in the Courts list that do not strictly speaking require judicial consideration and resolution. The Judges and Courts should be reserved for cases in which there is no precedent, there is a need to interpret a constitutional or statutory provision or even a term of a written contract, there are public health and safety issues or there is certain levels of violence that a Mediation or an ADR setting will simply not handle. Many cases do not fall into any of these categories. They ought to be resolved by mediation and other forms of ADR. The Courts should have a sustain program of referring those cases to mediation and other forms of ADR and have them resolved. They should provide support for those process from getting those process started through to enforcement of agreements or resolutions reached there. Then of course on the other hand some cases requiring judicial consideration and resolution end up in the ADR and Mediation tracks. Facilitators should recognise that and have them referred to the Courts for their consideration and resolution. This in my view would allow for the symbiosis that is talked about between the Courts, Mediation and other forms of ADR. See for a more discussions on this: http://pjc2014.org.nz/assets/Uploads/5.-Justice-Ambeng-Kandakasi.