Should judges recuse themselves more during mediation?

Should judges recuse themselves more during mediation?

Author: Christopher Olsson Lønes, Certified mediator in MEKLE and facilitator in Wægger Negotiation Institute.

In Rett24 on November 18, 2021, Haavind partner Pål Martin Abells urges judges to recuse themselves more frequently during mediation, “They are not going to judge the case anyway, so I wish judges would more often speak their minds during mediation.”

The Dispute Act § 8-5 (3) regarding judicial mediation allows for: “The mediator can (…) express the strengths and weaknesses of the parties’ legal and factual arguments” (this is similarly regulated for extrajudicial mediation, cf. the Dispute Act § 7-3 (3)).

The way I interpret attorney Abells’ point is that he wants the judicial mediator to do this more since “judges mediating should capitalize more on their major advantage, which is the experience of deciding cases.” While playing to their strengths is wise advice, I still question if it’s a good idea.

It is challenging to find quality research on mediation techniques. It happens behind closed doors, and mediators usually work solo. However, The Administrative Office of the Courts in the State of Maryland, USA, conducted research on this. In 2016, they followed over 100 cases mediated with surveys before and after the mediation session. Additionally, they tracked if the cases required further legal steps in a 12-month period after mediation concluded.

The results cannot be directly applied to Norwegian conditions. The cases studied were mostly minor claims and rent disputes, not major claims like the actor meeting in Oslo District Court. Still, the findings can provide useful starting points and contribute to the debate about which mediation techniques are effective.

The report can be read here, and a summary of it here. In the report, the mediators are referred to as “ADR Practitioner”, but for simplicity, I’ll refer to them as mediators here.

Regarding whether the mediator should express their opinion on the case, suggest their own solutions, or analyze the legal aspects, the findings indicate that doing so is detrimental to the case and parties. When this occurred, it was less likely that parties reported:

  • that the outcome had the desired effect
  • satisfaction with the outcome
  • recommending alternative dispute resolution to others
  • and changing their approach to conflict

There was no measurable increase in settlements where the mediator gave their opinion on the matter.

Other interesting findings showed that the more time spent in private sessions, the less the parties felt they had control over the outcome. They felt pressured into solutions, and it prevented all issues in the case from emerging. There was also an increased sense of powerlessness. In general, increased time in private meetings correlated with a lower likelihood of parties reporting satisfaction with the process and outcome. However, the amount of time in private sessions didn’t affect the resolution rate.

Techniques identified as especially effective included getting the parties to suggest solutions themselves, the mediator summarizing proposed solutions, and asking questions about how those solutions might work for the parties. Using these strategies, parties reported more listening and understanding of each other, joint control over the outcome, the other party taking responsibility and apologizing, and an increased number of settlements. In the long run, parties reported they had changed their approach to conflict.

The Norwegian law allows mediators to express their opinion on the case quite broadly. If we compare this with the ethical guidelines from the Singapore International Mediation Institute (SIMI), which I’m accredited by, mediators should not make any statement, suggestion, or assessment that might unduly influence a party to accept a specific result.

Similarly, the ethical guidelines in Denmark are more restrictive than the Norwegian law. Only occasionally, and if the parties ask for it and the mediator deems it appropriate and justifiable, can the mediator become evaluative, meaning stating their opinion.

Other than what’s pointed out in the Maryland report, the degree of mediator involvement is well-discussed in the literature. For an easy introduction, see the Court Administration’s report series 2 – 2018: “Parties are experts on their own lives, but the land consolidation court’s mediators are experts on property” (choose 2018).

I personally find it challenging to balance the requirements of neutrality and impartiality, which I depend on to have the parties’ trust, with stating my opinion.

Mediation strategies should be chosen consciously and carefully. As a mediator in MEKLE, I’ve mediated cases with such a high level of conflict that almost the entire mediation took place in private sessions just to be able to communicate with the parties. At the other end of the spectrum, where parties communicated well, the whole mediation took place in a joint session. In both cases, parties reached an agreement, and the strategy chosen was tailored to the case and parties.

Nevertheless, I have yet to mediate a case where I’ve felt the need to state my opinion. From experience, I find that even a hint of this quickly shifts parties from discussing solutions to entrenching themselves and only defending their case against me.