Mediation Blog: Beware the phenomenon of the Judge-led mediation…

Back in 2019, as part of my (volunteer) role on the executive committee of the European Circuit of the Bar, I went to Belfast to an event in the Bar Library on cross-border mediation. I was particularly impressed with a presentation from Administrative Judge Friedrich-Joachim Mehmel (President of the Hamburg Higher Administrative and Constitutional Courts). He described the use of judicial mediation in the German courts, which even included judges acting as mediators in public law cases. He also described that judges could be allocated mediations in certain cases, that the trained mediator judge would act as a mediator within a “bubble”, whereby the mediation would follow “normal” mediation protocols; the mediations would be confidential. If a mediation was unsuccessful, then there would be no record on the court file; and that in every way, the mediation would be conducted in the same way as a mediation if the mediator was not a judge. One of the advantages of the judge-led mediation system was that the Court system provided the mediator, which significantly reduced the cost to the parties.

The German judge came across as very “user friendly”, not remotely pompous, turned up in his smart jeans and casual jacket (he had just got off a plane but his pre-pandemic relaxed style was appreciated in a jurisdiction which is wary of certain strands of continental culture. Still, perhaps it was just an expression of his personality. It does not matter). He exuded calm, expertise and generally the system that he described inspired confidence. Clearly, he was fully aware of the traps and dangers of judges mediating, including judges mediating public law cases.

Recently, I have been exposed to my first judge-led mediation within the England & Wales jurisdiction. The seed for this was planted when I was counsel at a Costs and Case Management hearing in a multitrack personal injury claim, where the case-managing Judge said that the case would be subject to judicial mediation. My interest was sparked. The judicial mediation was presented as a pilot scheme-type situation bespoke to the local area in the South of England. It never occurred to me to object to the judge-led mediation because, as a trained mediator, I am all for mediation. Further, the case was eminently settleable.

Unfortunately, what unfolded was nothing like the mediation I expected. This is what I expected: a Judge acting as a mediator. Probably using first-name terms. Talking to the parties directly including in private sessions, and especially the Claimant, given that the Defendant was a local authority. I expected the mediator Judge to have read the position statements but also the pleadings in the case, and, particularly, the formal schedule of loss and counter-schedules, not least to appreciate that both parties, and especially, the Claimant, had approached the mediation process in good faith, and made significant concessions in their without prejudice position statements. I expected that the mediator Judge would want to have access to the main case papers, including the full experts reports, and possibly medical records for reference.

I am acutely aware of the chronic underfunding of the justice system. Judges often lack administrative support and court staff are expected to work on increasingly complex admin tasks with reducing numbers of team members whilst having to work with clunky, slow IT systems. Like the NHS, the whole system keeps going due to a great deal of good will and people constantly going above and beyond. This blog piece in no way seeks to undermine the particular mediator judge, nor the court staff at the particular court, which will all remain nameless. The purpose of this piece is simply to reflect and learn; another practice which is part of the routine of work of NHS teams of professionals, but alien to the justice system.

What happened in my case is that the listing of the judge-led mediation probably (this is a hunch only) delayed the settlement of the case by the usual route of correspondence, because the defendant failed to engage in settlement correspondence, and simply prepared for the mediation. The issues on the case were relatively simple and such that a joint settlement meeting was not envisaged.

So why the disappointment?

Late on the Friday afternoon, before the all-day Monday judge-led mediation listing, the court list came out. As anticipated, the mediation was to be virtual via CVP. However, the Judge had been assigned two cases to mediate. If I was mediating a case and tried to mediate a second at the same time, I would fear a serious complaint and would be concerned that I would be accused of not fulfilling my obligations to the parties. How can a mediator work on two cases simultaneously; cases listed for mediation specifically because the value and degree of complexity? For the record, judges have no control over listing. It was not the Judge’s responsibility that they were being required to work on two mediations at the same time.

However, if the double listing was not concerning enough, on the day, the Judge complained that they were only provided with part of the pre-prepared paper work at 09:55 before a 10:45 start. It came out that the paper bundle that had been sent had “collapsed” and yet the court staff did not contact the solicitors (who had conscientiously sent the bundle in 10 days in advance of the appointment) to ask for a replacement. Further, the “back -up” electronic bundle had “bounced back” so the Claimant’s solicitor had sent it by egress. Nonetheless, no one in the court admin had downloaded it. It transpired that the only documents that the Judge had in advance were the position statements.

The Judge was (understandably) irritated at the lack of papers but was initially very critical of the parties, and especially the Claimant’s legal team when, in reality, they had been well organised and prepared well in advance. The Judge vented their frustrations which the parties heard. This undermined the Claimant’s trust in the process (maybe the other side too – I cannot speak for them) and also undermined the relationship between the Claimant and legal team because when a judge criticises parties then the authority of the Judge has great weight.

There was no attempt for the mediation to be softened by first names or any of the usual techniques used to win the trust of parties; there was zero ingredient (until after the case settled) of acknowledgement of what the Claimant had been through and the emotional impact on the Claimant of her life-changing accident, or the litigation process.

There was mention of the process being “ADR” and on a couple of occasions, the other side’s counsel asked for “early neutral evaluation” of particular discrete issues within the case.

Because the Judge had not been provided with the paperwork or opportunity to prepare, they had not realised the careful work that had gone into preparing the litigation, but also the carefully-considered concessions that had been made (by both parties) in preparation for the mediation by way of the position statements.

Above all, the Judge appeared on the screen and told us off intermittently, and then disappeared fairly abruptly when they had to go and deal with the parallel mediation. All very unsatisfactory and stress-inducing for all concerned. I, for one, was pushed unexpectedly onto the “back foot” and found myself constantly defending the Claimant and our work, when I had planned for a collaborative exploration of the issues.

In “Online Courts and the Future of Justice” (OUP 2019), Professor Richard Susskind, who seems to have the ear of the senior judiciary, makes mediation and other forms of ADR a significant plank in his remodelling of access to justice. However, in England and Wales, if judges running parallel mediations is what is going to be implemented, then it will have the opposite effect. Maybe we should be taking note of what our continental cousins are doing. They have a reputation for efficiency for a reason. A final takeaway is that parties would, as always, do better organising their own mediations with a mediator who can give clients and their cases the attention required.