To what extent should judges be involved in mediation?
The Chief Justice of Ontario addressed this thorny issue in The Advocate's Journal, Winter 2010. He considers it from the perspective of the public, the bar and the bench, provides a brief history of judicial involvement in settlement discussions, adumbrates the arguments for and against judicial mediation, and asks whether it is a reality or a fantasy.
There are so many issues.
How would it be different from the pretrial rule which is designed "to provide an opportunity for any or all of the issues in a proceeding to be settled without a hearing"?
Should judicial mediation be given official status? Should it be interest based or rights based?
Should judges be meeting with one side in the absence of the other?
Does judicial mediation undermine the judiciary as society's ultimate impartial arbiters?
See this interview with Hon. Richard Scott the Chief Justice of Manitoba and chair of the Canadian Judicial Council's Judicial Conduct Committee.
The debates rages on.
It is fascinating to see how widely the mandate varies across Canada – see this Lawyers Weekly article.
In January of this year the OBA struck a task force to study the issue. Here is its Mission Statement.
A Policy Day on this topic will be held at the OBA conference centre on 9 December 2011. Check the OBA website for further details.
Some judges are excellent mediators, particularly if they have been trained in aabd use mediation principles. Other judges, however, consider mediation an extension of the pre-trial conference and that is frequently unhelpful. I have seen a variety of ad hoc practices at pre-trial conferences. Some judges ask parties to wait outside. (This was especially demeaning to a client who had important things to say.) One judge asked the lawyers to sit the back of the room without talking (which was equally demeaning). Some judges preach from "on high" to one party at a time without any discussion or interaction. These tactics rarely do much to help cases settle.
If judges mediate, they must take off their judicial "hats". They must not use the authority of the Court to "force" parties to do anything they would not have to do in a mediation, including a continuation of their participation. The judge as mediator should not give the impression that if a party does not behave in a particular manner, the Court will not be pleased.
Judicial mediation is very welcome where mediation parameters are adopted. Some uniformity of practice would be most welcome.
Igor re raise a number of good points. The key it seems to me will be how the "judicial mediator" is selected. If it is by the parties then many of the issues you raise will cease to matter as those mediators with practices of the kind you speak will simply not get selected. If however like pretrials the mediator is selected by the administration then the problems are real. In fact the whole issue of training raises its head in any event. For the most part judges are not trained as mediators. Of course some inately would take to the role. Presumably if we are to go down this path this would have to be addressed.