Comments on: Pilot Mediation Program in UK Using Sitting Judges Fails http://ckamediation.com/wordpress/2007/06/pilot-mediation-program-in-uk-using-sitting-judges-fails/ Fri, 05 Mar 2010 12:59:35 -0800 http://wordpress.org/?v=2.9.2 hourly 1 By: Christopher Annunziata http://ckamediation.com/wordpress/2007/06/pilot-mediation-program-in-uk-using-sitting-judges-fails/comment-page-1/#comment-6 Christopher Annunziata Thu, 28 Jun 2007 00:38:07 +0000 http://ckamediation.com/wordpress/?p=12#comment-6 Optimist: Thank you for clarifying that point of English law for us. It would make more sense to operate the system as you described. Given that point, I am inclined to agree with you that the problem may have been that the judges did not have the proper mediation skills, or that the parties could not view the judge as anything but. Here in the US, we have lots of former judges who mediate cases, but they are typically retired. It is very rare to see a sitting judge act as mediator. They may hold "settlement conferences," but that is more like the FDR process you describe - the judge uses the weight of his authority to more forcibly coax a compromised position. Optimist:

Thank you for clarifying that point of English law for us. It would make more sense to operate the system as you described.

Given that point, I am inclined to agree with you that the problem may have been that the judges did not have the proper mediation skills, or that the parties could not view the judge as anything but.

Here in the US, we have lots of former judges who mediate cases, but they are typically retired. It is very rare to see a sitting judge act as mediator. They may hold “settlement conferences,” but that is more like the FDR process you describe – the judge uses the weight of his authority to more forcibly coax a compromised position.

]]> By: Optimist http://ckamediation.com/wordpress/2007/06/pilot-mediation-program-in-uk-using-sitting-judges-fails/comment-page-1/#comment-5 Optimist Wed, 27 Jun 2007 23:35:04 +0000 http://ckamediation.com/wordpress/?p=12#comment-5 You are right that a Judge will usually render the verdict at a trial. My understanding is that any Judge hearing a mediation or pseudo mediation hearing will not in fact then be eligible to hear the final hearing. Here in the UK it is quite normal for a different judge to hear a case at each stage of the process. In the UK matrimonial process for example we have a Financial Dispute Resolution (FDR) hearing where we are expected to table all without prejudice proposals and set aside adopted positions to explore terms of settlement. The judge who hears the FDR is then debarred from the final hearing and if no deal is reached, all correspondence detailing terms of settlement is removed from the file. This is not a mediation though. A judge will pretty much say "I think party A is about right" or might go so far as to say "What about if you shifted your position a bit by offering x, y or z" I think the greatest problem was just in expecting a judge to have mediation skills. There is the power or narrative issue as well. If you put me in front of a judge then I see a judge, regardless of what you call the specific hearing I am at. Kind regards You are right that a Judge will usually render the verdict at a trial. My understanding is that any Judge hearing a mediation or pseudo mediation hearing will not in fact then be eligible to hear the final hearing. Here in the UK it is quite normal for a different judge to hear a case at each stage of the process.

In the UK matrimonial process for example we have a Financial Dispute Resolution (FDR) hearing where we are expected to table all without prejudice proposals and set aside adopted positions to explore terms of settlement.

The judge who hears the FDR is then debarred from the final hearing and if no deal is reached, all correspondence detailing terms of settlement is removed from the file. This is not a mediation though. A judge will pretty much say “I think party A is about right” or might go so far as to say “What about if you shifted your position a bit by offering x, y or z”

I think the greatest problem was just in expecting a judge to have mediation skills. There is the power or narrative issue as well. If you put me in front of a judge then I see a judge, regardless of what you call the specific hearing I am at.

Kind regards

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