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History, Process, and a Role for Judges in Mediating Their Own Cases
Baer, Harold Jr.. New York University Annual Survey of American Law, 58(2): 131-151, 2001
This article discusses judicial mediation, sets forth criticisms of judicial mediation, and either defends or validates such arguments. The author begins by describing the history of ADR in the federal courts in terms of court rules and legislation that have been established. He describes the mediation process, highlighting the two most common models - evaluative and facilitative. The author, a trial judge, also walks the reader through his process of conducting mediations for cases he will later hear at trial. In so doing, he highlights the use of discovery, confidentiality, good faith, and the opportunity for reaching creative solutions to disputes. In the final section, the author discusses the arguments against judges acting as mediators. He defends several criticisms of this role by addressing doubts about time and cost savings, potential ethical dilemmas of confidentiality and impartiality that a judge mediating a case on his/her docket faces, and the idea that judges resort to mediation for the sole purpose of clearing their dockets. The author concludes by sharing some concerns about judges as mediators; for example, he agrees that a mediation that involves a pro se party would be unbalanced and that a trial judge should not mediate a case proceeding to bench trial considering he or she must try the facts and the law.
Publisher or Resource Origin
NYU Annual Survey of American Law
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