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Redefining Judicial Mediation: The Coequality Approach
Redefining Judicial Mediation: The Coequality Approach
Throughout the years, there has been a progression in the accessibility of justice, with the third wave of the movement concentrating on various approaches to conflict resolution. As a result of the confluence of Alternative Dispute Resolution (ADR) and adjudication through the court system, the notion of justice is currently undergoing a process of evolution. ADR techniques, such as mediation, emphasize the autonomy of the parties involved, secrecy, and the consideration of a variety of interests that go beyond legal rights. A public procedure, decision-making, and the application of legal principles are all components of adjudication, on the other hand. A procedure that involves a judge serving as a mediator in court conflicts is known as judicial mediation. This innovation is a result of the changing function of the judge, which led to the creation of this process. The legitimacy, the capacity to improve access to justice, the possible advantages, and the question of whether or not it is the wisest allocation of judicial resources have all been considered by critics in a variety of different ways. Many academics, on the other hand, acknowledge that mediation has the potential to bring about justice, even though the definition of "justice" continues to be a contentious issue.
Concerning judicial mediation, discussions have centred on whether or not alternative dispute resolution (ADR) and litigation are similar or different. The congruence method examines the advantages of mediation based on similarities between mediation and litigation, whereas the divergence approach focuses on the specific traits that mediation possesses in comparison to litigation. Both strategies have resulted in discussions that continue to take place in the present day and are having less and less of an impact as time passes. After more than three decades of rigorous research, it is time to break the stalemate that has been prevailing in the arguments over the proper distance or similarities between the mediation and litigation procedures. Several countries are currently seeing a growing tendency towards a normative individualism stance, which necessitates the transformation of judicial mediation to accommodate the rapid development of access to justice. This strategy places the individual at the centre of the judicial system, making them the source and focal point of access to justice. It emphasizes individual engagement in the justice process and can meet individual requirements.
The purpose of this study is to suggest a "coequality approach" as a means of developing a revised model for judicial mediation. Coequality is a position that acknowledges that mediation and adjudication are both equally acceptable processes within the justice system. This approach also respects and maintains the major distinctions that exist between the two processes. In this paper, we discuss the continuing discussions that are taking place about the potentials and advantages of judicial mediation, and we propose reconsidering arguments from the perspective of equality. In addition to this, it suggests newly formulated principles for judicial mediation, which are based on the profound dedication and extensive judicial mediation experiences that have been accumulated in Canada and Singapore. In the last several decades, there has been a shift in the way that access to justice is provided, with greater emphasis placed on individual engagement as well as consensual and adjudicatory procedures. Nevertheless, the validity of judicial mediation has been hampered by the lack of clarity that exists within the justice system between the many streams of alternative dispute resolution (ADR) and adjudication. The notion of judicial mediation has been conceptualised by critics as either being independent from the traditions of justice or being generally comparable to the process of adjudication.
Through the use of a coequality viewpoint to comprehend and design judicial mediation, the study suggests a revitalization of the judicial mediation process. Both adjudication and mediation are viable methods for achieving justice, and the process needs to be designed in such a way that acknowledges the equal legitimacy of both of these methods. Using the coequality approach as a foundation, the Integrative Judicial Model (IJUM) is developed. This model emphasizes the user-centric idea of access to justice, procedural values, public accountability, process harmonisation, and initial and ongoing training of judges. A shift in understanding of the function of courts, access to justice, and how procedures that are opposed to one another may be appropriately treated as part of the justice system is represented by the International Justice and the United Nations (IJUM). When it comes to overcoming binary disputes and generating other innovations within the justice system, the coequality approach will prove to be beneficial. It is crucial for the creation of solutions to the difficulty of access to justice.
References
[1] Noone, Mary Anne, and Lola Akin Ojelabi. "Ensuring access to justice in mediation within the civil justice system." Monash University Law Review 40.2 (2014): 528-563.
[2] Landerkin, Hugh F., and Andrew J. Pirie. "Judges as Mediators: What's the Problem with Judicial Dispute Resolution in Canada." Can. B. Rev. 82 (2003): 249.
[3] Roberge, Jean-François, and Dorcas Quek Anderson. "Judicial mediation: from debates to renewal." Cardozo J. Conflict Resol. 19 (2017): 613.
- Judicial mediation bridges ADR and litigation.
- Integrative Judicial Model enhances access to justice.
- Coequality approach respects mediation and adjudication equally.
