In a diverse set of legal systems, from the United States to the United Kingdom, from India to China, from Norway to France, from Jordan to Israel, from Mexico to Brazil, judicial mediation is increasingly seen as a potentially complementary and innovative alternative to traditional judicial systems. Hiram Chodosh, professor of law and director, Frederick K. Cox International Law Center, Case Western Reserve University School of Law, explores the diverse features of mediation and how the world views it as a new method for confronting litigation.

From the conventional perspective of most modern legal cultures, judicial mediation is a contradiction in terms. Judges are supposed to judge (not mediate), to apply law (not interests), to evaluate (not facilitate), to order (not accommodate) and to decide (not settle).

This view of judicial mediation as an oxymoron falsely assumes that the functions of judging and mediation are mutually exclusive. It is also out of touch with the modern realities of national court systems.

To justify this new interest will require careful consideration of some fundamental questions. To which set of problems confronting court systems today does judicial mediation pose a significant, albeit partial, solution? What are the varied forms of judicial mediation? What are the sources of interest in it? What are the primary impediments in modern legal cultures to the acceptance of this reform mechanism? And how should interested legal communities proceed in the study, design and implementation of judicial mediation to overcome these obstacles?

The Limited Capacity of National Courts

In the last decade the world has witnessed a significant increase in national commitments to democracy and free markets. These twin political and economic objectives have spurred an enormous amount of new substantive law, including constitutional and civil rights reform, free trade agreements and commercial legislation. These trends have given rise to an increasing quantity and complexity of private and public disputes both within and across national borders.

However, the reform of national judicial systems has not kept pace with these substantive commitments. Many systems suffer from insufficient institutional resources and outdated procedures. Litigants and lawyers complain of excessively adversarial, lengthy, costly, prejudiced, opaque trials and unenforceable judgments. Judges demand more resources in court and case management, more disciplinary authority over the progress of litigation, better compensation and greater protection from improper influence by political branches of government and organized crime.

Democratic and market-based trends appear to generate too many legal disputes for traditional national courts to handle. Court backlog reduces the time that can be allocated to each dispute, causing delay. Delays strengthen the incentives for breaching obligations. Poor compliance in turn generates more legal disputes. Backlog, delay and low compliance create a vicious cycle that is difficult for the courts to address.

Most judicial systems do not provide meaningful alternatives to the formal methods of trial. Arbitration is widely available, but disputing parties frequently require court action to compel the parties to go to arbitration or to enforce an award that is contested. Lacking alternatives, many disputing parties either suffer the harm without recourse to a remedy that would make them whole or they pursue self-help or illegal strategies in retaliation.

Common and Diverse Features

Judicial mediation is one of several remedies to this condition. It comes in varied forms, but may be defined by several widely observed features.

Generally, judicial mediation is a confidential, consensual form of dispute resolution facilitated by a sitting or retired judge who is trained in conflict resolution. Typically, sessions are attended by the disputing parties and/or their legal representatives. Sessions frequently begin with statements from each party of the asserted claims and defenses. They may proceed with private meetings between the mediator and each party. The judicial mediator or the "neutral," attempts to narrow the disagreements between the parties and to encourage final agreement on settlement. The neutral also explores aspects of the dispute beyond the legal positions of the parties or the permissible scope of judicial relief. Mediation allows the neutral to examine the parties on aspects of the dispute that most litigation systems must ignore. These include:

• the relative strengths and weaknesses of each legal claim and defense;

• the impact of these issues on the present value of the claim;

• settlement proposals that more accurately reflect the probabilities of success on the merits; and

• creative solutions, including new business or contractual arrangements between the parties that maximize their ongoing interests.

Judicial mediation may be voluntary or compulsory. In some legal systems, it requires the parties to prepare in writing a summary of their legal and evidentiary positions in advance of the session. Because of their experience as adjudicators, judicial mediators tend to be more evaluative than facilitative, that is, they are generally more willing to share their evaluation of the merits or value of a claim. If an evaluation is provided, it may be communicated either simultaneously to both parties or consecutively to each party in private sessions. If settlement is achieved, the mediator may assist the parties in drafting a settlement agreement to record their understanding in writing. Each of these features may be adapted to the particular needs of the judicial system.

Growing Interest Worldwide

The emerging interest worldwide in judicial mediation derives from many sources. Compared with the undesirable condition of most litigation systems, judicial mediation offers certain advantages. If designed properly, it is less adversarial, less time-consuming, less expensive, less formal, and when successful, more final. The parties participate directly in the process, which is designed to be conciliatory in tone, candid in discussion and creative in designing solutions. Disputing parties may communicate directly with one another, opposing attorneys and the neutral. Because the parties (instead of the judge or arbitrator) are responsible for resolving the dispute, they can better control the outcome, shaping it to maximize their competing interests. They are also more likely to comply with a final resolution in which they had an active role in creating.

For many non-European legal cultures, judicial mediation bears a comforting similarity to traditional forms of dispute resolution that predate colonial influence.

Given the relative ineffectiveness of many national judicial systems, many legal opinion leaders have grown increasingly interested in reviving or extending traditional forms of dispute resolution (Indian panchayats of five elder arbitrators, or the wasta for the process of sulha in the Middle East) and integrating them into the formal litigation system (the distinctive form of evaluative Chinese mediation known as tiaojie).

India has launched a major campaign to use lok adalats (people's courts) for the resolution of auto accident and family disputes. Panels of three (two judges and a doctor or social worker) render non-binding evaluations and facilitate settlement. Likewise, Egypt has designed an integrated judicial mediation mechanism for use in its first instance courts.

Throughout Europe, judicial mediation is seen as a potentially promising mechanism for the resolution of both simple and complex disputes. Norway's conciliation boards (Forliksradene) provide a model of extensive comparative interest and international study. In 1995, France expanded the legislative basis for judicial conciliation and mediation. Preliminary work in Russia and the Ukraine is also under way.

In many of these jurisdictions, judicial mediation is seen as useful not only for small claims, auto accidents, family disputes and petty crimes in court systems clogged by a modern docket, but also as an alternative dispute resolution device for the most complex matters, including those involving environmental and intellectual property law. The World Intellectual Property Organization opened its Arbitration and Mediation Center nearly five years ago in response to the inability of national court systems to handle the technical and multi-jurisdictional complexity of such disputes. The speed of change in strong national and emerging global markets put increasing pressure on large business interests to resolve disputes quickly and inexpensively, as well as amicably, constructively and creatively, in order to maximize long-term interests and to maintain ongoing commercial relationships.

Effective judicial and other forms of mediation at the local level also may provide a strong foundation for conflict resolution on the international scene. When direct negotiations fail, communities that seek to resolve profound intra- and inter-border conflicts are increasingly turning to neutral third parties. These neutrals may be prominent political leaders or diplomats, for example, former U.S. Senator George Mitchell in Northern Ireland or the Norwegian diplomat Terje Roed-Larsen in the Middle East; non-governmental institutions such as the Carter Center in the Ethiopia/Eritrea conflict; quasi-judicial commissions such as the Truth and Reconciliation Commission of South Africa; countries such as Kenya in the Mozambique/RENAMO conflict; or international organizations such as the United Nations in the Soviet withdrawal from Afghanistan.

Impediments to Acceptance

The acceptance of judicial mediation into a national legal culture does not necessarily follow from these perceived advantages, however. Despite its increasingly widespread use, judicial mediation poses an ostensible threat to important values expressed by many modern legal cultures.

Beyond the conventional view of judicial mediation as oxymoronic, judges may see it as a threat to their authority to make public judgments and normative pronouncements. They may perceive the risk of a "brain drain" from the bench as a consequence of perverse incentives for judges to retire early in search of a more lucrative career in private dispute resolution.

Lawyers who produce their income by working in court may see mediation as a threat to their livelihoods. If more disputes are to be mediated, lawyers might view this as consistent with a reduction in demand for their services.

Litigants in systems where there is little trust of judges generally may feel more comfortable with a formal, public, albeit more rigid, procedure. In some cultures, litigants may not be able to maintain dignity or honor if they have to admit their mistakes or make a concession.

Scholars may object to the use of public resources for the diversion of legal disputes from public scrutiny. And the public may resist the notion of discounting the worth of legal rights based on the probability of success or the time value of money.

Furthermore, the mere creation of alternatives to trial, without significantly reducing delay, may not be effective in practice. Absent the pressure of imminent jeopardy, incentives to negotiate directly remain weak. Consequently, mediation may not be effective unless closely linked to other reforms that shorten the time to judgment.

Developing A Greater Acceptance

Judicial mediation is potentially useful only if it responds appropriately to real problems, genuine needs and their actual causes. When considering the acceptance of mediation, legal communities should first endeavor to conduct a candid assessment of the practical operation of the judicial process.

The greater awareness of its increasingly widespread application will soften the initial tendency to dismiss judicial mediation as anathema. Legal communities should study the available models of mediation, drawing on both indigenous traditions in informal dispute resolution and comparative and international trends in conflict resolution reform.

The process of tailoring judicial mediation to meet local needs should address the legitimate concerns of the primary participants in the judicial process. There should be a detailed adaptation of the use of mediation to enhance its acceptance and effectiveness in the contemporary legal culture.

Initial efforts to experiment with judicial mediation should target a limited category of disputes. This will reduce the perceived threat that mediation will altogether replace the role of judges in the adjudication of disputes of great public concern.

By employing judicial mediation both in and outside the courts and by limiting the pool to judges who have reached mandatory retirement age, fear of premature judicial retirements may be allayed.

Demonstrating how legal professionals can increase the value of the service they perform for their clients in this new process will alleviate concerns about reducing levels of compensation for legal services. Legal limits on the types of disputes that are required or permitted to go to judicial mediation will reduce worries about the impropriety of diverting critically important disputes from public scrutiny. Finally, the integration of mediation with other court and case management reforms will be very important in ensuring that the incentives for settlement are sufficiently strong to make it effective.

Drawing on Traditions

In each of these efforts, knowledge and appreciation of the culture are critical. Translation and interpretation are very important. For example, in Arabic-speaking cultures, the notion of unilateral concession (tanazol) is less likely to be an effective concept than the alternative notion of compromise (hal wassat) or concession as part of a series of mutual concessions (musawama). Crude equivalence between judicial mediation and cultural forms of dispute resolution (e.g, U.S. mediation and tiaojie in China) must also be avoided.

Within the Jewish tradition, for example, the shadkham (marriage), Metavekh (broker), borer (rabbi/arbitrator) and shtadlan (interceder/diplomat) all denote varied actors with different roles. Efforts to draw on these traditions must proceed with adequate sophistication about the subtle, yet significant differences between these pre-existing cultural forms and newer innovations.

Through this process of design and adaptation, the legal community should endeavor to achieve a broad consensus prior to the implementation of the reform. Failure to do so is likely to end in disappointment. If the primary actors in the judicial process are unwilling to participate in good faith, this primarily consensual and collaborative process will be of little use.

Once the design is established and consensus developed, legal communities must develop a strategy for implementation. The location, scope and conditions for the first stage of implementation, e.g., a pilot project, must be carefully determined. The budgetary impacts and allocations, facilities, selection and certification process, training and development, proper coordination with court administrators, the authority for reform by administrative action or judicial order short of legislation, and the timetable for implementation, evaluation, and midstream amendments all present critical issues. Prior attention to these questions will enhance the likelihood of successful acceptance.

A Tool for the 21st Century

Mediation is no panacea for the world's conflicts. Resistance to its varied forms, including judicial mediation, will remain strong in some quarters. However, an assessment of contemporary judicial systems will reveal that without complementary alternatives to trial, formal litigation systems are unlikely to realize their primary objective of delivering justice. An open study of worldwide reforms will provide a greater awareness of the available tools to solve contemporary problems. A thoughtful adaptation of practicable models will ensure the preservation of important values and also limit the obstacles to implementation. The development of consensus (from the bottom up) among primary participants in the judicial process will provide an important foundation for the acceptance of reform determinations (from the top down). And effective implementation strategies will be critical for transforming well-intended proposals into effective and beneficial legal practices.

Through this process of assessment, comparative study, adaptation, consensus-building and implementation strategy, legal communities will be better able to use judicial mediation as one of many tools designed to meet the conflict resolution challenges of the next century.