WHEN MEDIATION TRANSFORMS JUDGES AND JUSTICE by B.Brenneur
WHEN MEDIATION TRANSFORMS JUDGES AND JUSTICE
By Béatrice BLOHORN-BRENNEUR , Founding Vice President of GEMME
I-Towards an evolution of the act of judging?
Our judicial institution is in complete upheaval and aspires to more modernity. There is discomfort in the judicial system which is a reflection of our society.
We come from a period where most conflicts found their solution either in the family, in school or in church. The crisis of moral authority of these institutions has produced an explosion of litigation in most European countries. Have we become incapable to settle our conflicts without recourse to a judge?
We see today an evolution in the act of judging. The conciliation led by a judge and the mediation entrusted to a third party are additional tools given to judges to permit them to fulfill their mission. How will these tools bring the judge to rethink his traditional role, which is to decide the case according to the rule of law and add to it a more distant objective which is to contribute to social peace.
I have often asked myself if our justice would not be greater if a judge, rather than judge the consequences of the litigation, sought the principal causes of the litigation.
We enclose ourselves in stereotyped habits. Too often, without putting himself in question, the judge places himself at the center of the litigation and decides the issue of the conflict following his own perception. However, when the parties in conflict are invited to leave behind the judicial mould where they are enclosed in order to take back their life in their own hands, the parties put themselves back at the center of the litigation.
Treat the causes of the conflict
Litigation is rarely born in juridical terms. It finds its sense and its solution in a person's suffering. The latter, once translated in the cold and impersonal terms of the law, disappears completely from the proceedings, while being more and more present and oppressive for the person. A human being cannot be translated into a juridical equation. When the judge has rendered his decision in law, he has left intact the invisible part of the iceberg, which is also the most considerable and which is the center of emotions.
I have often regretted that the juridical response that I gave in a file only resolved the small visible part of the iceberg and that the rest remained untreated, in the intimate zones of a being, ready to reappear at the least opportunity. It can reappear later on and create, between the same parties, new litigation on a different juridical basis. This is the “vicious circle” which will reproduce itself in a “chain”, as long as the origin of the trouble has not been addressed.
All that is living implies movement
If all is movement, the judicial decision that ends the litigation cannot always be a satisfactory response. By focusing on the word for word of the decision, one tends towards motionlessness. To resolve a juridical case, the judge must reduce its complexities and simplify the conflict. The judge must make it enter in a juridical framework. The mode of the classification does not permit interactive forces to evolve. The static aspect of the judgment moves away from the evolving aspect of human conflict. The litigation dealt with by the judge is the juridical translation of a photograph of a situation at a given moment. In this binary system which creates a winner and a loser, the parties will compete to obtain the judicial death of the adversary. How is it possible to integrate dynamism to transform the static aspect of the judgment?
Are there not other means to permit the metamorphosis of the trial by giving it Life?
Restore social peace
During a trial, the sacrosanct file is in the forefront. It is reduced to a pile of papers which reflect life very imperfectly. The most skilful litigator, because he is the first to understand the trial and has constituted the proof, can readily prepare the best case. Each party defends its case by suppressing what is negative and by making the exhibits say what he wants. In this comedy where each gives his version, his vision, all sounds false. How can peace spring from this justice at the antipodes of truth? That is why Pierre Drai, First President of the Cour de Cassation, has exclaimed: “Is Justice without Peace still Justice?”.
I think that the judge can have a role to play to permit the parties to better understand the profound reasons which led to the litigation. Could he not bring the two parties to confront the two versions of their common story to write together the final scenario of their movie? The mission of the judge, as I conceive it, includes bringing our fellow citizens to this acknowledgment, then to help them to take responsibility to find s a solution themselves to their conflict. This presupposes the transformation of the role of the judge.
When a case appears to me that a dialogue would be more appropriate rather than the sanction of a judgment, I have two options:
• either I apply Section 21 of the CPC which gives to the judge the ”mission to conciliate the parties” and I lead the conciliation myself, by having recourse, if necessary, to the” personnel appearance” of the parties. (I have thus put into place the “new judicial conciliation”).
• or, within the framework of Section 131-1 of the CPC, I propose a mediation, which if it is accepted, will be entrusted to a mediator independent from the judge and held to confidentiality.
II-The “ New Judicial Conciliation”
I have had training in the techniques of mediation and communication and I have attempted to apply them in my functions as a judge.
I once stopped the pleadings when I learnt that the case pleaded before me was the 14th in a family saga and that other cases were pending. If 13 judgments had not ended the family conflict, how would my 14th decision inverse the course when it is known that there were other cases pending? I proposed to the parties that we attempt together to find a global solution acceptable to all.
By applying Section. 21 of the Code of Civil Procedure which grants to the judge the mission to conciliate the parties, I was fully in the role given to me by the legislator. The parties came with their lawyers and sat with me around the table. Three hours later, we had managed to negotiate an agreement, which replaced the judgment. Also, the parties desisted themselves of the totality of the multiple contentious cases before different tribunals, a manifest sign of the pacification of the relations.
Section 21 of the Code of Civil Procedure thus permits to find a solution when the decision, though founded in law, cannot be a fully satisfying solution or when it has consequences which are manifestly offensive or excessively severe, particularly from a human point of view. It also permits to address the difficulties in executing decisions when it is foreseeable that they will be badly received, badly executed, badly dealt with and will thus create more harm than good. In favouring the commencement of dialogue, our Section 21 thus becomes a privileged tool so as not to cut off links in the future.
The conciliation of Section 21 of the CPC is a revolutionary tool that in practice is very little applied by the judges. In order to develop it, I give many hours to hear the parties. I respect the confidentiality of what is said before me, by not judging the case when the parties do not come to an agreement.
It is a new form of judicial conciliation, that I have baptized the “ new judicial conciliation”. It is led by a judge specifically trained in communication techniques, who takes the time to listen and who makes the parties speak. He does not decide the case if the conciliation does not end favourably in order to remain true to the promise of absolute confidentiality that he has made to the parties. If no agreement intervenes, another judge takes the case, without knowing what may have been said during the conciliation. The parties will therefore be able to express themselves freely, without fear of being judged.
I spend three hours to try to attempt to conciliate a case. But if I count the hours already passed by my colleagues in first instance, the time that I would have spent to study the file, listen to the pleadings, draft the judgment, without counting the new cases that may stem between the same parties dissatisfied by the decision, I believe that the generalization of this practice would permit a precious economy of time for the judicial institution.
In Québec, Norway, Belgium and in other European countries, this practice is more developed than in France: the judge attempts himself to re-establish a dialogue between the parties in order to permit them to manage their emotions and to find a viable solution that does not create further conflicts.
The Norwegian and Canadian judges have developed a practice of judicial conciliation in family matters: an agreement is found in in nearly 80% of the cases and further conflicts inherent to the rupture have been largely pacified.
Our Dutch colleagues have developed conciliation by having recourse to the personal appearance of the parties: almost 9 cases out of 10 are the object of such an appearance before a judge who has had training in communication techniques. As in each country, culture and practice have favoured a particular inflection: in this case, it is rather a transaction with the lawyers rather than a conciliation led directly by the judge with the parties. One third of the cases lead to a transaction.
Since I have applied the “new judicial conciliation” and that I have heard the parties thank me for having permitted them to speak to each other, my role as a judge has taken on a new dimension: beyond the short finality which is the decision making, it is more axed towards the restoration of social peace. Because of their unhappiness, my fellow citizens have brought me to rethink my mission as a judge.
On appeal, when I put in place a procedure of conciliation, by applying Section 21 of the Code of Civil Procedure, the meeting that I have with the parties does not double with mediation. I confine myself more to the juridical conflict of which I am seized. Even if I attempt to understand it in a global manner, I do not explore, in the same elaborate manner that the mediator would, the interpersonal conflict of the parties. I do not have the time to hear all the persons touched by the conflict, whose resolution will modify the course of existence. And also, in conciliation before me, the parties will not learn to speak to each other, as they would in mediation.
III- JUDICIAL MEDIATION
Judges have, since the beginning of the 70s, favoured the implementation of mediation after having noted that certain decisions which were juridically founded did not fully satisfy the parties and rendered illusory all hope of renewing links.
The first mediations were ordered on the basis of Section 21 of the new Code of Civil Procedure, whereby it entered in the mission of the judge to conciliate the parties. The Law of February 8, 1995 organizing mediation, detached it from conciliation and made it a specific mode of a resolution of conflicts.
According to Guy Canivet, First President of the Cour de Cassation, with mediation “emerged a modern conception of Justice, a Justice that observes, that facilitates negotiation, that takes into account the execution, that spares the future relations between the parties, that preserves the social tissue”.
According to Section 131-1 of the Code of Civil Procedure, since the French law on judicial mediation of 1995: “the judge seized of litigation may, after having received the consent of the parties, designate a third-party in order to hear the parties and to confront their points of view so as to permit them to find a solution to the conflict that opposes them”.
The pacification of the conflict
When the Law of 1995 and its application Decree of 1996 (which has become Section 131-1 and following of the Code of Civil Procedure) on mediation were promulgated, this measure was presented in France by the public authorities as a measure destined to clear the courts: serious error! The result was a lifting of shields on the part of the judges who saw there the beginning of justice at a discount.
The reality is very different: mediation is a measure of pacification of conflicts which has as its purpose a Justice of quality which is more flexible and more modern.
The development of human sciences has shown the necessity to give to the judge supplemental tools so that the injured being can reconstruct himself, future relations can be preserved, the conflict may be pacified and the parties, who have taken responsibility, find their own solution, as close as possible to their interests and far from the violence and publicity of judicial debates. One of these privileged tools is mediation.
It is rare that conflicts are limited only to the parties in the trial: the conflicts of couples who divorce affect all the family, labour litigation has repercussions on the surroundings of the fired employee and on the whole business, the commercial trials concern all the parties in the business relationship and bring about the termination of the commercial relationship, while even, in some cases, resulting in the definite closing of the business.
Mediation takes into consideration all aspects of the conflict taken as a whole. It brings also together all the actors in the conflict. It will permit the parties, not to renege or forget their past, but to re-create between themselves another relationship where all that they have lived through will be preserved.
I can state that, in numerous cases, mediation has permitted the pacification of the conflict and that the sole regret verbalized by the parties, at the end of the mediation, was that it had not been proposed to them earlier.
It is by abandoning the point of knowing who was right and who was wrong, who was the executioner and who was the victim, in order to turn to the satisfaction of their fundamental needs and interests that these persons found another answer to settle their conflict.
A “win-win” agreement, consistent with the interests of the parties
Mediation permits the parties to free themselves from the terms of the litigation and to find an agreement consistent with their interests. While the solution to the litigation by the application of the rule of law is rigid, the solution found in mediation is flexible, innovative and pragmatic and thus, better adapted to the interests of each of the parties.
It has happened in mediation between an employer and employee that the employer re-hired the employee or helped him to find work by using his business relations or even by financing a headhunting firm.
In one case, an employee, fired for having diverted the business of the employer, abandoned, in mediation, his request for an indemnity and purchased the business of the employer. The agreement permitted the employee to duly purchase the business and the employer, who wanted to retire to find a purchaser. The interests of both parties were safeguarded. A judgment could not have come to such a solution as the judge is bound by the terms of the litigation and by the law.
In mediation, the imagination of the parties to find an agreement is fertile. There is also the case of the employee who, after having been fired, created a business in the field of cast parts. The former employer, who had cash flow problems, could not pay a large indemnity. The parties therefore agreed that the employer would purchase the cast parts of his ex-employee. This solution had the advantage of permitting the employer to open up a market of new parts and to guarantee an annual revenue to the employee.
An agreement easily executed
What is the point of rendering decisions that are not executed or that are executed with difficulty because they are not accepted? Is it useful to render judgments for litigation that will continue thereafter in new litigation?
Mediation has shown that, in commercial and civil matters, there were agreements in approximately 80% of the cases and that they were executed without difficulty and very rapidly.
One cannot prevent oneself from comparing this data to the statistics concerning the execution of judgments: approximately 45% of appeals in civil matters and 62% in labour matters, which means that many years after the event, the judicial institution has not given it a definite solution in the percentages quoted.
Mediation permits the conclusion of agreements to which the parties adhere and, consequently, a more rapid and efficient Justice. Far from increasing judicial costs or creating a loss of time, mediation, on the contrary, permits an economy of time and money when the agreements are obtained in less than three months and executed voluntarily.
The statistics of the Social Chamber of the Court of Appeal of Grenoble which has attempted a mediation experience and ordered more than 1000 mediations between 1996 and 2005 demonstrate that in 15% of cases, the employer proposes in mediation an amount greater than the amount of the condemnation in first instance which he has appealed and that in 45% of the cases, the agreed-upon amount was equal to the condemnation in the judgment. It is therefore inaccurate to maintain that mediation forces the employee to surrender.
70 to 80% of mediations give rise, in three months, to “win-win” agreements that are spontaneously executed because they are accepted. The quasi totality of the 700 agreements that the Court of Appeal of Grenoble has homologated were already executed at the hearing for homologation.
A flexible and adapted process
Because of its specific methods that authorize the mediator to have separate discussions with each of the parties, mediation permits tension to fall and brings flexibility to the judicial process.
Contradictory proceedings do not apply in mediation. The mediator may speak alone with the party and not reveal to the other the content of the discussion. This flexibility cannot be imagined in a judicial proceeding. It requires however guarantees on the ethics of the mediator. That is why it is important that mediators adhere to Codes of Ethics. Mediation must not be an obstacle to a fair trial within the meaning of Section 6 of the European Convention.
Mediation is a mode of regulation of conflicts. It brings a modern response to the crisis of our society and of Justice.
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