The question as to if, when and how Judges should or should not mediate has recently become topical in South Africa and is worthy of careful consideration.
To address the question, a distinction needs to be made between four situations. Firstly, when sitting Judges mediate, use private and confidential side meetings with the parties and adjudicate the same matter if the mediation fails. Secondly, when sitting Judges mediate, use private and confidential side meetings with the parties but do not adjudicate in the same matter that they have mediated. Thirdly, when sitting Judges only mediate in joint meetings with the parties and do or do not adjudicate in the matters that they have mediated, and finally, when ex-Judges, who no longer sit as Judges, mediate in their private capacity.
In the leading Australian case on the subject, the Federal Circuit Court of Australia found that all judicial mediation, whether with or without private and confidential side meetings; in joint meetings only; and even if the Judges do not adjudicate a matter in which they have mediated, falls outside the powers granted to Judges in terms of the Australian Constitution. Judge Dowdy said that:
“The process of mediation is extraneous to, stands outside of and is not incidental to the execution of judicial power. It is anterior to and seeks to avoid the need for the exercise of judicial power…. Mediation is not “an integral part of the process of determining the rights and obligations of the parties” to a legal proceeding... Mediation is of its nature “directed to a non-judicial purpose”... Simply because mediation is beneficial, as it is, “convenient” and “efficient”… does not make it incidental to the judicial power of the Commonwealth". 1
The Court went on to say that, even if it were constitutionally permissible for a sitting Judge to mediate, it would be inappropriate to do so. The Judge explained that one of the reasons for this was that if judges had to mediate, they:
“would not have been prepared to evaluate for the parties their respective prospects of success because to do so would have run the risk that if the mediation failed and the matter did proceed to hearing a different Judge of the Court might take an entirely different view of the case. The prediction of the likely result of legal proceedings is fraught with uncertainty and to have a Judge of this Court at a mediation give one view of the likely or possible result of the case, and then to have another Judge of the Court subsequently determine the case in a quite different manner, (would have) …a clear tendency to diminish the standing of the Court and its Judges. Nevertheless, by not evaluating the parties’ prospects of success (s/he) would have denied to them a characteristic function expected of mediators...”. 2
Time will tell what approach the South African Courts take to these situations. They could completely outlaw mediation by sitting Judges, or they may permit it, but hold that it is improper and unconstitutional for a sitting Judge to hold private and confidential side meetings with parties and then, if the mediation fails, to adjudicate in the same matter. Instead, they could hold that the case may be mediated by a sitting Judge but must be adjudicated by a different Judge. The reasons for this are well summarised by the Judge Dowdy in the Wardman case where he said that:
“I take it as inconceivable that a …Judge could preside at a mediation in a case to which he or she had been docketed, and then if that mediation fails, to subsequently hear and determine that case. The principle that justice must manifestly be seen to be done would require that the case be heard by another Judge”. 3
If our Courts go further and find that sitting Judges may not hold private and confidential side meetings and may only mediate in joint meetings with the parties, then they will be seriously handicapped because, as we know, not to be able to use private and confidential side meetings is to mediate with one’s hands tied behind one’s back. There is probably certainty about one situation, and that is that ex-Judges, who no longer sit on the Bench, will be able to mediate just like any private mediator because they do not have the same possible constraints that sitting Judges have.
Judges can become very good mediators because some of their judicial skills equip them well for the role. There are many worldwide examples of ex-Judges who have become excellent mediators. For example, the late Sir Laurence Street, the former Chief Justice of New South Wales subsequently became one of Australia’s leading mediators. Similarly, the former Lord Chief Justice of England and Wales, Lord Woolf, trained as, was accredited as, and became a leading mediator in the United Kingdom after he left the Bench.
Judges have the advantage of being able to help parties assess their risks in litigation, which is an important mediator skill, but it is not the only skill of a good mediator. Untrained Judges may think that the only answer to a problem is a rights focused, legal one. Sometimes when Judges mediate, they are criticised for treating mediation as a form of mini-trial or truncated hearing where they decide who is right or wrong in law and then pressure the parties into accepting their view of what a fair settlement should be. On the other hand, properly trained and skilled mediators do much more than that. They have a thorough grasp of modern negotiation and mediation theory and practice, joint problem-solving, rapport and trust-building, among many other skills. Most importantly, they can see beyond legal outcomes and try to help parties find outcomes that are of greater value to both than the best outcomes that litigation can deliver.
In some jurisdictions where there is extensive judicial mediation by sitting Judges, the Judges are criticised for being more concerned about speedily reducing their adjudication caseload than for doing justice, and for not understanding the parties underlying interests and helping them to find mutual gain settlements. The Courts there are criticised for being kangaroo courts that neither mediate nor adjudicate properly. A very useful analysis of successful judicial mediation in Holland, versus relatively unsuccessful judicial mediation in China, can be found in the article “Mediating Judges in China and the Netherlands: An Empirical Comparison”. 4
This experience thus teaches us that, if Judges do mediate, then they need to be trained and accredited to do so. As Judge 5 Dowdy said in the Wardman case:
“I am not an accredited mediator. Mediation is a craft in which education and training are regarded as appropriate and invaluable and accreditation usually entails training, competency assessment and ongoing annual professional development requirements. Parties who are to invest time, effort and cost into mediation are entitled to an accredited mediator. The characteristics required of a Judge are of quite a different order from those required of a mediator and it is well known and accepted in the profession that eminence and ability in the judicial role do not necessarily translate into the assumption by a former Judge of the role of a private mediator. As Gleeson CJ said in Attorney-General (Cth) v Alinta Limited ...Judges are appointed on the basis of their legal knowledge and experience. Individual Judges may have other talents or interests, but what these might be is usually unknown, and is not the subject of any process of assessment, formal or informal”. 5
South African Judges have several advantages over some of their colleagues elsewhere in the world. We have a rich tradition of mediation outside of the civil justice system; we have some internationally renowned mediators and some of the best mediator trainers in the world. They should, therefore, have no difficulty in being assisted to make the adjustment from quality adjudicator to quality mediator.
Perhaps the biggest obstacle in the way of judicial mediation in South Africa is capacity. Our courts are seriously under-resourced and understaffed, and the judges have massive adjudicative caseloads to cope with. They are probably in a similar situation to what Judge Dowdy said of his situation in Australia, namely that:
“I also took the view that I should give exclusive primacy to the judicial role rather than acting as a mediator…. I regarded it as unjustifiable to sacrifice time available for the hearing and determination of cases in favour of mediating, particularly when I am listed with hearings until mid-2020 and would have needed to vacate the hearing of at least one or two cases to make time to conduct the mediation. If the mediation had been unsuccessful I would have had to return the matter to the registry for re-allocation to another Judge of the Court who is under similar pressure”. 6 It is therefore unlikely that South African sitting Judges will be any better able to take time off to do the necessary mediator training and to mediate.
Even if sitting Judges in South Africa are not able to mediate themselves, they can do much to improve the parties’ knowledge and understanding of the benefits of quality civil mediation. They can, by making adverse cost awards, also help to improve access to justice by sanctioning parties who unreasonably refuse to go to mediation and lawyers who stand in its way.
To address the capacity problem, Judges could also make use of the hundreds of private civil mediators in South Africa who have been trained and accredited to international standards. These include top ex-Judges like ex-Constitutional Court Judge, Judge O’Regan, ex-Supreme Court of Appeal Judge, Judge Zulman and ex-High Court Judge, Judge Goldstein. Like Judge Dowdy said of Australia:
“I was conscious that there are some 4,000 accredited private mediators in Australia who would have been available to conduct the proposed mediation and the cost of whom could easily have been borne between the 16 parties to this proceeding. That being the case, the only justification for appointing a Judge to be mediator appeared to be the illegitimate one of utilising the habitual deference and respect accorded to Judges in our legal system to induce or extract a settlement and “by drawing on the legitimacy and moral force that courts have developed through the performance of their inherent function, adjudication according to the traditional conception”. 7
So, the answer to the question as to whether Judges should mediate in South Africa seems to be, with some reservations, yes. Subject to those reservations, both ex-Judges and sitting Judges could and should mediate and thereby could do much to contribute to access to justice in the Country.
By John Brand - lawyer, mediator, trainer and director of Conflict Dynamics Pty Ltd
1. Wardman & Ors v Macquarie Bank Limited  FCCA 939 (10 April 2019)
4. International Journal for Court Administration, Vol. 9, No. 1, 2017 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3097046