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ESTABLISHING A SYSTEM OF COURT ANNEXED MEDIATION
ESTABLISHING A SYSTEM OF COURT ANNEXED MEDIATION
1. Preliminary considerations
- What is alternative dispute resolution and how can it assist?
- What processes do disputants want as alternative to litigation?
- What types of disputes are currently being heard before the courts?
- Which matters within a jurisdiction are appropriate to be referred to mediation? It may be that some matters are suitable for mediation and others not.
- The reasons why some matters within a jurisdiction are conducive to mediation, and why others are not?
- Do any legislative provisions or court rules mention mediation, if not; see examples below for how legislative and rules may be framed.
- What expertise currently exists and what expertise is required to mediate?
2. Legislation, rules and orders
- There is a need to ascertain within any existing legislation which facilitates mediation, what does, and does not work about the legislation to assess whether it requires amendment. See the Samoa ADR Act 2007 for an example.
- The rules must be clear, flexible, even in application in order to be effectively implemented. Various examples of mediation rules exist and can be consulted for guidance:
- Any policy and orders must be clearly stated and in alignment with the Court's stated objectives. For example, see
- The rules should match the values underpinning their logic and reason for having mediation, outlining values and guiding strategies.
- There could be a series of associated procedural documents underneath the rules which could cover all courts / types of mediations, detail the process to be followed, and require parties to attend etc. This could be in the form of a mediation benchbook. See the following documents for examples of content which could be included:
- Whilst mediation is premised on facilitative theory, it combines evaluative practice. There is no reason why the two cannot co-exist, but they must be clearly articulated so disputants are clear about the process. Is the intention for the process to be evaluative?
- There must be a Code of Conduct for mediators/ions. They will be bound by the code to ethical conduct. Is there a Mediators Association, it is comprised of non-judicial officers as well as others?
- Is there a limit for the resolution of disputes? It needs to have lots of information about how it works.
- On settlement how is the matter removed from the court's list?
- How are mediation process/procedure enforced?
- What information must be submitted by the parties? Would all relevant documents have been submitted to the Court prior to the mediation process starting?
- Does a judge review the agreement? This puts lots of pressure on the judge and potentially undermines the consensual agreement if they go beyond the limit of checking that the agreement does not undermine the law.
- Would 'public interest' matters be open to the public? This requires definition, clarity and limits.
- Do disputants pay a fee specifically for a mediation to take place?
- What is the benchmark for settlement rates?
- There are different mediation models appropriate for different issues. This must be considered.
- If parties reach settlement but do not want anyone to know about it, can they withdraw the matter from court and not get a stamp from the judge.
- Are there pre-court/external mediation services available?
- How does this system interact with local systems? This needs to be worked out precisely as it could lead to a conflict between the formal and informal systems and the latter being undermined by dominance of the former.
- It would be useful to know who provides external mediation services, and how far they reach
3. Judges as mediators
- What do they want to achieve?
- They require training. Will we provide train-trainers training in bigger PICs who would then train locally?
- Many judges have expressed the concern that they are not properly remunerated for their existing roles, and mediation would add a further burden for which they would receive no compensation. It is important that the judges are supportive of, and use mediation, which might require consideration to be given to instituting a number of incentives:
- Once they are trained and are eligible to mediate, their position as a mediator is a promotion, not everyone can mediate, they must be 'accredited' at a senior level which offers a lift in status
- Other courts could mentor committed and determined mediators as a further incentive
- Backloading incentives for retirement might also be another means of adding an incentive to the process.
4. Selecting mediators
5. Lawyers as mediators
- A more flexible system would be more lucrative, it would take up more of their time and allow them to list/schedule their time more effectively
- It also allows lawyers to specialise in mediation and further specialise in areas of mediation
- They could then undertake more mediations which would provide a stream of money they are not presently seeing as possible by increasing the public's exposure to mediation and through better management of the process (through efficient court practice).
6. Building public awareness
- Current obstacles include information about rights/obligations, information on proceedings/process, corrupt practices/no confidence, direct costs (lawyers/court), delays, fear of authority abuse, distance (geographical access)
- Mediation needs to be socialised as a corrupt free service with a complaints/concern mechanism which is transparent and accountable
- Raising public awareness about ADR can be useful to this end - for example, a statement and brochure about mediation released by the Supreme Court of Kosrae or by the Supreme Court of Tonga
- The Supreme Court of Tonga also produced a DVD of a mock mediation which was widely distributed around the country. This was an effective means of building awareness and understanding.
7. Management structure
- Articulates how and when a matter gets to mediation
- Differentiates between different types of matters to deal with them in different ways
- Referral criteria based on principle?
- Type of case (family, general civil or specific civil)
- Matters which are primarily a dispute of fact? Or matters that need expertise or an authoritative determination of fact?
- Amount in issue
- Multiple/ complex issues
- Multiple parties
- Social and/ or cultural characteristics (eg gender, race)
- Legal representation of the parties
- Details how mediations are listed once referred - flexibility / how arranged - this is dependant on volume
- How they are referred and to who? Rotation? 1-judge? Quotas? Specialists? Cross-section of matters?
- A sample referral form is available from Kosrae
- Location and logistics to accommodate all parties, male/female and lawyers?
- How the court notifies the parties that the matter is going to mediation?
- Clarity as to the process through which a matter goes through mediation
- Circumstances for adjournment?
- Means of communicating the outcomes of the mediation/settlement
- Dedicated person to look after mediations (they will then be accountable)
- Self-regulatory
8. Evaluation
- It is important to know that your mediation system is working. See examples from Kosrae .
- Reliable and consistent means of evaluation: 'exit sheet' which provides feedback from lawyers/parties, and statistics to show how many matters have been mediated, the legal/other issues and the outcome. This would provide analysis of the statistical impact of mediation on litigated cases i.e. does the quality/quantity of decisions improve/increase?
- It is critical to ensure that appropriate statistics are kept over time.
9. A process to establish mediation
- Establish a Mediation Steering Committee. Often the committee will consist of participants with some experience or training in procedures of Alternate Dispute Resolution.
- The Steering Committee will be responsible for advising the relevant authority on developing a mediation process, as well as for educating the public about mediation.
- The formation of sub committees to deal with such issues as:
- Legislation
- Budgets
- Customs and traditions
- Training
should also be undertaken at this stage and the following steps, while under the general direction of the Steering committee, can fall under the responsibility of the relevant sub committees.
- Research legislative requirements to provide a sound legal basis for the introduction of Court annexed mediation.
- If appropriated, draft general Court Orders to provide proper authority for the introduction of Court annexed mediation and rules of procedure.
- Provision of an appropriate budget to cater for all aspects of mediation services.
- Calls for nominations of suitable people to be trained as mediators, should serve as the initial step in the selection of process.
- Once mediators have been selected, training and certification of all potential mediators should take place.
- A pilot mediation program should take place immediately after the certification of mediators to allow an opportunity for newly certified mediators to practice their skills. A pilot mediation program is also beneficial in that it allows for an assessment to be made of the best practices to be adopted in the final mediation program adopted by the Court. Such a program should be held before the general introduction of mediation.
- Evaluate the pilot to ensure the outcomes are consistent with the original vision and that cases are settling. Make any adjustments to the system deemed necessary from the evaluation
- Build public awareness and understanding
- Launch mediation nationally
10. Further information
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