International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Winter 2015 Issue



Mediation: A Great Service for Courts and Help to Litigants and Lawyers for Reducing Cost and Delay

Dr. James G. Apple

By: James G. Apple, Editor-in-Chief, International Judicial Monitor and President, International Judicial Academy

The most frequent complaint that I hear in meeting with and talking to judges around the world is the increasing congestion of their dockets. It seems that, as courts and judges in many countries improve their services and become more sophisticated and competent, there is more willingness on the part of citizens to use courts to resolve their disputes. This of course is a very good development, but it has a downside: courts and dockets are becoming more crowded and otherwise competent judges are unable to keep up with the workload. The old dictum, “justice delayed is justice denied” is applicable, no matter the cause of the delay.

As a result of the bloating of case dockets in almost every part of the world, many courts have searched for ways to speed up the handling of cases and resolve the disputes in them. Courts and judges are increasingly turning to mediation as a service of the courts to be offered to, and in some instances, to be required of, litigants.

Mediation as a service of courts was an idea developed, at least in the United States, by a Harvard law professor named Frank E.A. Sander, a strong advocate of finding ways to resolve disputes in the courts, other than trials. His advocacy began in 1976 when he delivered a seminal paper titled The Varieties of Dispute Processing, presented at the Pound Conference in 1976 in Minneapolis, Minn. His book, Dispute Resolution: Negotiation, Mediation, and Other Processes, which he co-authored and is used in most U.S. law schools, also contributed to widespread interest in other ways of resolving disputes, As a result of his efforts and others who picked up on the idea, a new phrase entered the lexicon of legal systems, “alternative dispute resolution” or ADR. These reformers argued that traditional ways of resolving disputes were antiquated and unsuitable for the functioning of modern courthouses. ADR would save time and expense, as well as reduce the overloaded dockets of judges. ADR as a integral part of court administration would require changes and additions to courthouse procedures, requiring that the courthouse would create different “doors” for the different kinds of procedures that would be followed inside. The movement thus created another new descriptive phrase, the “multi-door courthouse.”

Professor Sander’s ideas caught on slowly in the United States. Some states began to explore ADR ideas as early as the 1980s. Pilot programs were established in some court systems to explore the efficacy of ADR services in courts, some assisted by grants from the American Bar Association. These programs, which were integrated into the trial process eventually came to be called “court annexed programs” because they were officially connected to and run by courts (other ADR services, non-annexed are offered by private organizations, and have no affiliation with courts or judges). There are now in the United States and in other countries multi-door courthouses with court annexed programs offering one or more ADR services.

As developed over a period of 30 years, the most common type of ADR services offered by courts is mediation. Other types of ADR found in court annexed programs are arbitration, early neutral evaluation, summary trials with summary arguments, settlement weeks, and settlement conferences. All of these other methods have problems of administration and achieving the ultimate goal of ADR, which is early settlement of the dispute. Thus mediation has become the most popular and  dominant form of ADR, at least in the U.S.

There are two issues involved in the creation and operation of a court annexed mediation program in a court. One relates to the mechanics of actually deciding on and setting up the various parts of the system, which include finding personnel to run the system; providing a location for actual mediations; advertising for, recruiting and selecting mediators;


providing training programs with a comprehensive curriculum for selected mediators; establishing the time periods for assigning cases to mediation; and other administrative matters.

The second issue relates to understanding the mediation process and establishing appropriate procedures and rules for mediators to follow in conducting a mediation.

There are several advantages to courts and judges using mediation as a service of the court. The objective of mediation is to settle the dispute, hopefully early in the litigation process. One of the major attractions of mediation is that the parties can escape the limitations of ordinary court powers and available legal remedies for the judge. Generally there are only three remedies available for judges in the final disposition of a case, all within established court processes. One is a decision for the defendant, or party being sued, which ends the case at the trial level. The second is a decision in favor of the plaintiff and the award of money damages. The third is a decision in favor of the plaintiff and the issuance of a court order requiring the defendant to do or not do some action or activity, such as an injunction. [Note: the common law use of “equity” is an exception to the above and does provide other ways of resolving disputes, but even the availability of equitable remedies is not completely unrestricted.]

The attractiveness of mediation as a way of resolving a dispute is that it allows the parties to fashion their own remedy or remedies. Such remedies could very well include provisions for settlement that would be outside the traditional court methods referred to above. As an example of a litigant-fashioned remedy not available to judges would be in a case of a citizen suing an automobile manufacturer for personal injuries and property damage as a result of an accident caused by a defect in the automobile. A settlement might be reached in which the automobile manufacturer agrees to provide the plaintiff with a new car every year for a certain number of years or for life, rather than pay a definite sum of money. In the U.S. insurance companies often settle cases through the mechanism of a “structured settlement” which involves stretching damage payments over a period of time, or providing for an annuity for the injured party. Unbelievably some cases have been settled in the mediation process by the defendant merely offering an apology to the plaintiff for an accident and injury, and the payment of a small sum of money. None of these types of settlements could ever be ordered by a judge because they are outside the available remedies provided for in ordinary court processes. Types of settlements that can be generated in mediation are limited only by the imagination of the parties and lawyers.

Other elements and strengths of mediation are:

  • The discussions are guided and assisted by a third party “neutral”.
  • The third party neutral can provide for all parties a realistic evaluation of positions taken by them  - the neutral is “an agent of reality”.
  • Settlements generated through mediation are voluntary, not mandated.
  • The parties have the satisfaction of participating directly in the settlement process and are thus more likely to be satisfied with the result.
  • Mediation discussions, arguments, positions and settlement terms are confidential and not to be disclosed to judges, court officers, other lawyers, or members of the public.

As the world economy grows more and more integrated as more countries develop more sophisticated court systems and the number of cases increases substantially, it has become clear that court processes and remedies that were suitable in the 19th and 20th Centuries are not suitable for the 21st. Developing a well established and well administered court annexed mediation service gives judges and courts a way of encouraging early settlement of disputes and providing relief from crowded dockets and overworked judges.

ASIl & International Judicial AcademyInternational Judicial Monitor
© 2015 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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