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Mediation by Judges: A New Phenomenon in the Transformation of Justice

Otis, Louise; Reiter, Eric H.. Pepperdine Dispute Resolution Law Journal, Jan. 1, 2006

Using the Quebec court system's judicial mediation program as an example, the authors discuss the benefits of judicial mediation. The authors argue that judges are uniquely prepared to serve as mediators, because of their valuable experience in dealing with parties in conflict and their advanced knowledge of the law. They also note that the judge's role in the court system gives them a reputation of "impartiality and independence" and a certain moral authority, which they can use to keep mediation negotiations on track and to prevent abuses of the mediation process by participants(365).The authors do recognize potential ethical conflicts that may arise in judicial mediation, as judges must shift their mindset from adjudication to facilitation. For example, the authors note that judges who serve as mediators must keep in mind that in mediation, it is up to the parties to define their conflict and find a resolution. Overall, however, the authors maintain that "complementing traditional adjudication with judicial mediation allows state dispute-resolution institutions to reflect new exigencies better, which helps them provide better justice for those who bring their disputes to the justice system for resolution' (357).

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