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Navigating Mediation: Striking a Balance Between Litigant Rights and Court Resources

In Judge John Baulch's insightful May 2011 examination of mediation, he highlights the tension between a litigant's right to a fair hearing and the pressures on public court resources. The article explores common mediation problems, such as inadequate preparation, delayed disclosures, and a lack of trust in mediators. Experts like Mark Wolf emphasize the importance of educating clients, providing robust evidence, and developing successful strategies. The piece stresses the necessity of preliminary conferences in mediation, setting the stage for a more effective resolution process.

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Navigating Mediation: Striking a Balance Between Litigant Rights and Court Resources

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Presentation Transcript

  1. The Mediation from Hell Judge John Baulch S C May 2011

  2. litigation for the feeble-minded?

  3. “I am conscious of two conflicting principles. The first is that our litigants should be entitled to his or her day in court, and to have a decision from a judge of the court. On the other hand, the time of the court is a public resource which is coming under increasing pressure, and it is now often said that parties have no right to use that resource unless they have made a proper attempt at settling their differences by negotiation.”

  4. “Common Problems in Mediation”

  5. 1. Lack of preparation by the parties and their representatives; • 2. Failure to make relevant disclosures in a timely manner: • 3. Lack of knowledge of the subject matter; • 4. Inability to control the behaviour of the client; • 5. Lack of trust in the mediator.

  6. Mark Wolf • (a) educating the client about your evaluation of the case and the mediation process; • (b) presenting the evidence supporting the plaintiff’s case to the mediator and the defendants; • (c) creating a strategy for successful resolution and reviewing that strategy with the client.

  7. Partiality

  8. Brabazon QC “Experience shows that it is essential to hold a careful preliminary conference in any mediation.”

  9. The Future

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