Court-connected Mediation Research Articles

Exploring the Effectiveness of Mediation in Resolving Disputes in the Indonesian Administrative Court

This study analyzes mediation in administrative dispute resolution in Indonesian Administrative Courts. The settlement of administrative disputes through mediation is not recognized in the Administrative Court procedural law. Mediation in the dispute resolution process in Administrative Courts is still a matter of debate. One of the parties to the dispute is a public body or official who is included in the realm of public law, so that mediation is not possible. The execution of Administrative Court decisions that have permanent legal force does not guarantee justice and legal certainty. This research aims to analyze the development and implementation of mediation in settlement of public disputes in Administrative Courts. The research method used is doctrinal research or library research with secondary data sources in the form of legislation on Administrative Courts, Supreme Court regulations on mediation, and scientific journals of research results. The results showed that mediation in public dispute resolution is used as an alternative to dispute resolution and has long been applied in several countries. Mediation in administrative dispute resolution can be carried out in two ways. First, mediation can be carried out outside the Administrative Court, and then the lawsuit is revoked. Second, mediation can be carried out through Court-connected mediation in the Administrative Court. There is a need to develop and strengthen the application of Court-connected mediation for administrative dispute resolution from the aspects of procedural law and Administrative Court resources that support the mediation process.

Effective and Efficient Dispute Resolution Through Optimation of Court Connected Mediation

The judiciary is a mechanism provided by the state to resolve disputes. However in practice, dispute resolution in court is not in accordance with the principles of justice, namely effective and efficient judicial institutions. This research aims to analyze the legality and development of mediation in court. The research method used is library research with secondary data sources in the form of laws and regulations, research results and literature. One of the progressive ideas of the Supreme Court of the Republic of Indonesia in order to realize effective and efficient courts, among others, is to strengthen the institution of mediation in the Court for the settlement of civil disputes. However, it seems that the efforts of the Supreme Court institutions need to be further refined through improving the quality and quantity of human resources, improving supporting infrastructure and court institutions are consistent in supporting the mediation development programs in the Court.

Mediation Empowerment in Resolution of Civil Claims in State Court

Mediation is a way of resolving disputes through a negotiation process to obtain an agreement between the parties assisted by a mediator as a facilitator, the provisions of which are regulated in Supreme Court Regulation Number 1 of 2016 concerning Mediation Procedures in District Courts. Mediation in court is the institutionalization and empowerment of peace (court-connected mediation) with the philosophical basis of Pancasila which is the basis of the Indonesian State, especially the fourth precept "Populist led by Wisdom of Wisdom in Deliberation/Representation". The fourth precept of the Pancasila, among other things, requires that efforts to resolve disputes, conflicts or cases be carried out through deliberations to reach a consensus that is filled with a spirit of kinship. Mediation in court is the result of the development and empowerment of peace institutions as stipulated in the provisions of Article 130 Herziene Inlandsch Reglemen (HIR) / 154 Rechtsreglemen voor de Buitengewesten (RBg) which requires a judge who hears a case to earnestly seek peace between the litigants. Efforts to resolve through Mediation apart from benefiting the parties are also beneficial for the Court because Mediation is expected to overcome the problem of accumulation of cases. however, the results of research at the Sengkang District Court Class IB and the Maros District Court Class IB show that the implementation of mediation is in accordance with Perma No. 1 of 2016 concerning Mediation Procedures at the District Court. However, there are several obstacles encountered in resolving civil lawsuit disputes in the District Court, namely egotism, external factors, educational factors, absence of the parties, passing the time limit, aspects of advocates and aspects of mediator judges.

Towards more sustainable dispute resolution in courts: empirical study on challenges of the court-connected mediation in Lithuania

Court-connected mediation designed to foster more sustainable dispute resolution practices in Lithuania was launched in 2005. The article is an elaboration on Lithuania’s experiences relating to court-connected mediation in the realm of civil justice. It investigates the problem of the so called “plateau”, when the number of mediated cases stops to grow, thus raising the question of what is the future of court-connected mediation in general. Authors present the main features of the Lithuanian court-connected mediation model and stages of its formation. The autors strive to provide a better understanding of the possible causes for the problem under consideration, as well as underlying assumptions associated with sustainable dispute resolution practices in courts. Next, the results of the original quantitative and qualitative empirical survey dedicated to the analyzed problem and performed by the authors in the beginning of 2021 are presented. The research is supplemented by data from Poland, which presents a fracture of the problems related to court-connected mediation in Eastern Europe. Poland’s perspective provides a glance into another legal system, which chose a different model of court-connected mediation without the direct involvement of judges as mediators. Still, the data from Poland shows the tendency of a steady influx of mediated cases. The article ends with a discussion, conclussions and recommendations on the causes and consequences of mediation stagnation in the process of developing a court-mediation and, possibly, mediation in general. The paper is dedicated to dispute resolution experts, both practitioners and scientists, who are interested in Eastern European experiences and problems associated with the development of mediatiaton.

Poklic mediatorja kot strokovnega nosilca postopka mediacije

Sodišču pridružena mediacija se kot alternativna metoda reševanja sporov vse bolj uveljavlja kot področje dela z lastnim teoretičnim in praktičnim znanjem, lastnimi načeli in osnovnimi pravili. Mediacija je vzpostavila lastno znanje, ki temelji na študijah, razvrstitvi primerov in analizi rezultatov. V prispevku bomo preverili, ali lahko glede na razvoj mediacije v Sloveniji govorimo o poklicu mediatorja in ga opredelimo kot strokovnega nosilca postopka mediacije. Najprej bomo sodišču pridruženo mediacijo in mediatorje, ki mediirajo v sodišču pridruženi mediaciji, teoretsko opredeliti ter s pomočjo intervjujev s strokovnjaki za mediacijo in mediatorji v nadaljevanju preverili, kakšno je njihovo mnenje o mediatorjih in sodišču pridruženi mediaciji. Proučili bomo tudi pravno podlago sodišču pridružene mediacije tako v Sloveniji kot Evropski uniji. Glede na ugotovitve bomo sklenili, da je pravna ureditev sodišču pridružene mediacije v Sloveniji dobra in da lahko o mediatorjih sodišču pridružene mediacije govorimo kot o strokovnih nosilcih mediacijskega postopka.

Accessing Justice Through Settlement? Repeat Players in Court-Connected Mediation and Conciliation Programs in Brazil

Do repeat players come out ahead in court mediation and conciliation in Brazil? In order to address this issue, the research investigates how consensual mechanisms are used by courts to deal with repeated litigation and which are the practices and techniques specifically aimed at repeated disputes. The characteristic elements of these repeated disputes are the similarity of the factual and/or legal arguments, the representativeness of the volume of claims and the fact that one of the parties litigates in similar disputes more often, while the other in involved in such type of cases only occasionally. These “repeat players” are known as the great litigants of the Judiciary, and enjoy certain advantages in terms of bargaining power, resources and information in view of their size and the frequency with which they are involved with similar cases.An empirical research was carried out in court programs to study the perceptions of the players involved in the design and routines of these programs on the issues raised. It was found that repeated litigation is a crucial part of court conciliation and mediation programs, influencing the role of the main stakeholders (parties, lawyers and conciliators/mediators), screening and case management practices, access conditions, specific techniques and the role played the Judiciary, who shall also act as manager, designer and institutional mediator. It is concluded that the structure and design of these programs and the role of those involved can be key factors for an adequate treatment of repeated disputes in the judicial context.

The Integration of Mediation Within Justice System: An Assessment from the Brazilian and European Legal Frameworks

Lately Europe and Brazil have been suffering from the systemic inefficiency of their Courts, with a significant impact on the guarantee of access to justice for their citizens, making the alternative dispute resolution a constant presence in both civil law and common law systems of jurisdiction. The upshot has been the institutionalization of ADRs, taking the form as a routine presence at codes of civil procedure, while its practice is introduced into the courts. However, both institutionalization and the obligation to take part in mediation programs before or after starting the suit are exceptional measures, which must be adopted with caution. This article will examine the institutionalization of mediation in the European Union with its Directive as well as the required adjustments intended to deliver a court-connected mediation along a procedural justice enhanced by the Brazilian Civil Procedure Code sanctioned on 16th March 2015 and enforced as from 17th march 2016 with regard to mediation and the Mediation Act n. 13.140 sanctioned on 26th June 2015, enforced as from 27th December 2015, analyzing the adjustments that should be held to incorporate mediation process within a procedural justice paradigm.

California Court-Connected Mediation: Appreciating the Influence of Power and Processes

In this article, the author discusses the complex relational dynamics involved with child custody recommending counseling processes in California court-connected mediation sessions. The mediation process is viewed through a systemic lens, which allows for the appreciation of reflexive and recursive elements of power inherently present with all participants. A brief exploration is provided of how this reflexive use of power by participants influences the model of mediation used. Finally, suggestions for process improvements are made along with suggestions for areas of future research.

Parallel Justice: Creating Causes of Action for Mandatory Mediation

The American common law system should adopt court-connected mandatory mediation as a parallel system of justice for some cases that are currently not justiciable, such as wrongs caused by constitutionally protected behavior. As evidence that such a system is practical, this Article describes systemic and ethical parallels between court-connected mediation and the rise of the equity courts in medieval England, demonstrating that there are no insurmountable practical objections to the creation of “mediation-only” causes of action. The Article then explores the constitutional concerns surrounding the idea of “mandatory mediation-only” causes of action, using constitutional hate speech and invasion of privacy cases to test the validity of these concerns.

Belgian Mediation Report 2013

This draft report is written for the XIX International Congress of Comparative Law that will take place in July 2014 in Vienna. The report gives an overview of the current status of mediation in civil and commercial matters in Belgium. The framework is the Belgian Act of February 21, 2005 on Mediation, that dates from before the 2008 European Mediation Directive. The report describes in detail the voluntary (or out-of-court) and judicial (or court-connected) mediation procedures, the mediation agreement and the voluntariness of mediation, the accreditation process of Belgian mediators, the confidentiality of mediation, and the costs of mediation. Finally, some brief conclusions are made regarding the modest success of (judicial) mediation in Belgium.

Lawyers' perspectives on ‘what is court-connected mediation for?’

This article analyses the results of an empirical investigation into lawyers' perspectives of the goal of court-connected mediation in the Supreme Court of Tasmania, Australia. The findings of other empirical studies are drawn upon to contextualise the results. The data reveal a tendency for lawyers to emphasise settlement in accordance with the law as the main purpose of court-connected mediation. There was evidence that some lawyers maintain a competitive approach to court-connected mediation, seeking to ‘win’ for their clients with minimal regard to the other party's goals or to achieve outcomes that reflect a legal assessment of the case. However, where non-legal, satisfaction-related needs were met, many lawyers viewed such outcomes as particularly positive. A mixed range of views was revealed, with the common goals of an opportunity for settlement and a focus on law as a reference point. The findings contribute to knowledge about lawyers' understandings of ‘what is mediation for?’.

PERBANDINGAN HUKUM PENYELESAIAN SENGKETA SECARA MEDIASI DI PENGADILAN DAN DI LUAR PENGADILAN DI INDONESIA

Dispute resolution as mediationhas been known since the first inIndonesia because of the customssystem in resolving a case alwaysuphold discussion and consensusthrough traditional forums ofeach region in Indonesia. As itgrows by time, this is enforced inthe court (Court ConnectedMediation) as form of justice law.However, mediation process incourt has to be enforced throughthe civil dispute resolution. Ifmediation as set forth in SupremeCourt Rule No. 1 of 2008, ifmediation is not implemented, thejudgment will be omitted for lawpurpose.

The Place of Court-Connected Mediation in a Democratic Justice System

A justice system, and the processes located within it, ought to deliver justice. That seems simple enough. But, of course, delivering justice is never so simple. Justice and the systems that serve it are the creatures of context.This Article considers mediation as just one innovation within the much larger evolution of the judicial system of the United States. First, this Article outlines how the values of democratic governance undergird our traditional picture of the American justice system, presumably because the invocation of such values helps the system to deliver something that will be respected by the nation’s citizens as “justice.” The Article then highlights aspects of the changing picture of the American civil justice system – i.e., legislative delegation and judicial deference to adjudication by administrative agencies; the judicial embrace of and deference to decision-making by arbitrators; the marginalization of the jury in civil litigation – to suggest that today’s sprawling and multi-tiered structure is increasingly disengaged from its democratic roots. Finally, the Article examines the place of court-connected mediation in this evolution to determine whether it is part of the reinvigoration or further erosion of a democratic justice system. Ultimately, the Article makes three recommendations: 1) mediation advocates need to help courts overcome their current funding and staffing difficulties and regain an appropriate measure of self-respect for their unique role in enabling a democratic people to govern themselves; 2) courts should end their reliance on mandatory mediation or at least provide that the authority to mandate mediation should sunset after an appropriate period; and 3) courts should understand mediators as their agents – and provide for meaningful oversight that assures just resolution.

Legal framework and harmonization of ADR/ODR methods

Quantitative and qualitative benefits are emerging from ADR/ODR methods but the lack of legal and technical interoperability, the uncertainty about the value of the outcomes obtained through these methods, and the proliferation of many heterogeneous and fragmented practices, regulations and rules, especially in cross border disputes, do not contribute to creating an atmosphere of trust. Mindful of the proven usefulness of such mechanisms, we hereby propose the draft of an international legal instrument for this significant socio-economic sector. This initiative would enhance the progressive harmonization of international substantive and procedural domestic laws and would foster the expansion of ADR/ODR methods worldwide. Key words: ADR, ODR, mediation, resolution mechanisms, court-connected mediation, interoperability, relational justice, standards, ethics, principles, framework.

Agreements in Court-Connected Mediation: What are They All About and Whose are They After All?

This archival study examines 42 mediated agreements reached in court-connected mediation in Denmark from two different perspectives: an interests and needs perspective and a discourse perspective. The study suggests that, to some extent, the parties’ respective interests and needs are reflected in the agreements. The study further suggests that, with the high degree of jargon and legal language that they contain, the agreements are more expressions of the professionals who drafted them rather than the parties to the cases, possibly therefore jeopardizing some of the intentions of mediation.

Barking Dogs: Lawyer Attitudes Towards Direct Disputant Participation in Court-Connected Mediation of General Civil Cases

Direct disputant participation is a vehicle for the delivery of fundamental attributes of mediation, such as self-determination; empowerment; and focus on the individual disputants. However, in court-connected mediation practice, disputants often rely upon a professional spokesperson rather than participating directly. This article examines lawyer attitudes and practices in relation to the direct participation of their clients in court-connected mediation. The lawyer perspective is compared to the traditional mediation perspective of direct disputant participation. That comparison provides some explanation for the nature of court-connected mediation practice. Some implications arising from the trends of disputant participation in court-connected mediation are considered.

Coercion and Self-determination in Court-Connected Mediation: All Mediations Are Voluntary, But Some Are More Voluntary than Others

Mediation proponents often point to self-determination as the key to the broad applicability and acceptance of mediation in courts. While early mediation programs relied on voluntary participation, many courts now require litigants to try mediation before proceeding to court. Even in mandatory mediation, self-determination is essential: disputants are free to leave the process at any point, with or without settlement, and without coercion. While voluntary mediation may be highlighted in policy and theory, it is not always realized in practice. Research and appellate court filings demonstrate that many disputants experience substantial pressure: judges may pressure parties to enter mediation, mediators may pressure them to continue with mediation, and any number of actors and factors may pressure them to settle. Questions remain about the appropriate level of pressure, however: when does encouragement become coercion? Courts must ensure that court-connected mediation is delivered as promised—that self-determination is maintained throughout. This article reviews the philosophical and practical dimensions of this difficult goal, concluding with four recommendations to minimize coercion in mediation.

Civil Justice Reform and Mandatory Civil Mediation in Saskatchewan: Lessons from a Maturing Program

This article examines the development of the civil court-connected mediation program in Saskatchewan. The program was evaluated by the authors following its first 10years of operation, using focus groups and interviews with lawyers, clients, mediators and judges across the province. The resulting data shows a broad level of satisfaction with the mediation program among clients and a growing acceptance by the Bar and the Bench. There is an interesting alignment of views between some lawyers and clients describing a desire for proactive (albeit non-evaluative) mediators. The authors go on to discuss possible program enhancements to promote greater flexibility in case referral type, timing and management and to further extend acceptance of the program. The authors conclude that the Saskatchewan program provides a good example of a "maturing" court-connected mediation program, demonstrating the importance of changes in attitudes and behaviours especially among lawyers if justice reform in the form of court-connected mediation is to have a lasting impact on the adversarial culture of the courts.

Commentary: Focusing on program design issues in future research on court‐connected mediation

Court-connected mediation often works very well. That is a fair conclusion based on evidence summarized in Roselle Wissler’s meticulous review of court-connected mediation. Analyzing studies of small claims, general civil, and appellate mediation programs, her review suggests that mediation is usually evaluated very favorably and is rated as highly as or better than the alternatives on virtually all outcome indicators. 1 In other words, almost all of these studies find that the results are either better in mediation or that there are no significant differences. This suggests that mediation has the potential to be quite effective in producing various desired results and that whether a mediation program actually generates such results depends on how well it is designed and fits with the local practice culture. Mediation is a highly variable process that program designers and users can readily adapt. As McEwen (1988) suggests, instead of “asking whether mediation works or not, we need to examine how and why parties and lawyers ‘work’ mediation in varying ways” (p. 3). 2 McEwen’s suggestion can be extended to analyze how mediators and program designers “work” mediation processes. Thus, this article analyzes prior research to determine why some mediation programs did not outperform traditional litigation while others did. 3 It illustrates how researchers and program designers might analyze past research findings, design programs to produce desired results, and then empirically test the effectiveness of such design efforts. 4 This article also suggests that researchers increase the use of outcome measures in addition to traditional measures of efficiency, satisfaction, and perceived fairness. These include substantive justice, empowerment and recognition, and interest-based problem solving. Given intense concerns about mediator evaluation and party self-determination, researchers should also examine these issues further.

Using Dispute System Design Methods to Promote Good-Faith Participation in Court-Connected Mediation Programs

This Article discusses what can be done to promote productive behavior in mediation and reduce bad conduct. Although most participants do not abuse the mediation process, some people use mediation to drag out litigation, gain leverage for later negotiations, and generally wear down the opposition. Rules requiring good-faith participation are likely to be ineffective and possibly counterproductive. This Article proposes using dispute system design principles to develop policies satisfying the interests of stakeholders in court-connected mediation programs. After outlining important interests of key stakeholder groups, including litigants, attorneys, courts, and mediators, the Article describes specific policies that could satisfy their interests. These policies include collaborative education about good mediation practice, pre-mediation consultations and submission of documents, a limited and specific attendance requirement, and protections against misrepresentation. If faithfully implemented, these policies will enhance the integrity of mediation programs and satisfy the interests of the stakeholder groups without the problems caused by good-faith requirements.