At the end of November, 2011 I was a presenter at "Judicial Settlement Conferencing", a course sponsored by the National Judicial Institute for judges across Canada. Judicial settlement conferences are basically mediations conducted by judges in civil and family cases.
My participation in the course got me thinking about the relationship between mediation and judging, and whether judging had any place in mediation. Here is what I said.
The word "judging" suggests three different activities to me:
- Rendering a legally-binding decision, as in "I find for the plaintiff and awarded damages against the defendant."
- Analysing and categorizing all or part of a party's case to see if it stands up to scrutiny, as in "Based on what I've read this does or does seem like undue influence to me." - and -
- Assigning a moral position to someone, as in "You are being petty and vindictive."
Of these, the first is a valid activity but is outside the scope of mediation because it imposes an outcome, whereas in mediation the parties work out their own mutually-acceptable resolution.
The second is a permissible activity within a mediation but at a later stage of the process when the view of an objective outsider can encourage the parties to change their perceptions and move closer to settlement.
The third is a matter of philosophy, attiude or habit of mind and I contend that making a moral assessment of another individual is gratuitous. It has no place in a mediation or adjudication. The only exception is when a decision-maker must choose between mutually exclusive versions of fact and cannot avoid a finding of credibility. Mediation does not involve decision-making, so that exception will not apply.
Genevieve Chornenki
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