The Mediator-Judge Interaction: Does the Win-Win Approach Apply?

in Bělohlávek, A. J. - Rozehnalová, N. (eds): Czech (& Central European) Yearbook of Arbitration, Volume V, 2015, Interaction of Arbitration and Courts , JurisNet, LLC, New York, 2014, ISBN 978-1-937518-71-4

35 Pages Posted: 11 Mar 2015

Date Written: March 9, 2015

Abstract

This article focuses on the interaction between judges and mediators. It follows the chronological order of the mediation procedure in order to show the relevant relations that occur between these two rather dissimilar systems of dispute resolution.

First, it addresses the pre-mediation phase, where judges can recruit suitable cases to be resolved in mediation by judicial referral or by less formal advice or recommendation to attend ADR. Second, it describes the relationship between judges and mediation during the mediation procedure itself.

Finally, it concentrates on the post-mediation phase where judges can either increase the weight of mediated agreements by making them enforceable or reviewable if the mediated agreement was produced by undue influence, misrepresentation or lack of will.

When studying these positions, this contribution will focus not only on theoretical knowledge but also on relevant Czech mediation legislation and experiences.

Keywords: Mediation, confidentiality, judicial settlement, judicial mediation, court referral to mediation, enforcement of mediated agreement, settlement, right to be heard

JEL Classification: K41, K49

Suggested Citation

Svatos, Martin, The Mediator-Judge Interaction: Does the Win-Win Approach Apply? (March 9, 2015). in Bělohlávek, A. J. - Rozehnalová, N. (eds): Czech (& Central European) Yearbook of Arbitration, Volume V, 2015, Interaction of Arbitration and Courts , JurisNet, LLC, New York, 2014, ISBN 978-1-937518-71-4 , Available at SSRN: https://ssrn.com/abstract=2575718

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