Friday, January 19, 2007

A Judge's Perspective on Mediation

This article by Federal District Court Judge Dan Aaron Polster for the Ohio State Journal on Dispute Resolution provides an excellent summary of mediation. Judge Polster explains the benefits of mediation and discusses considerations for a Judge who will mediate a case that will go to trial before the Judge.

WCJs are the trier of fact, and Judge Polster doesn't believe a judge who is the trier of fact should mediate the Judge's own case. He reasons: "If statements (the parties) made to me regarding the facts of the case conflict with their trial testimony, I would be placed in the untenable position of either ignoring what I knew, or making findings based upon facts outside of the record."

Because a WCJ is a Judge under Article IV of the Constitution of Pennsylvania, and because the Act specifically grants investigative powers, a WCJ should never be in a situation where a conflict between the parties statements to the WCJ in mediation and the record testimony is unresolved. However, justice in the adjudication will come at the expense of breach of the confidentiality of the mediation by the Mediator/WCJ.

Under Act 147, a decision cannot be circulated until the case is mediated, except where mediation is futile. Mediation is futile only when no losing party could convince the Board that the case should have been mediated. It is not enough that the parties and Judge agree mediation seems futile. The Board has the benefit of 20-20 hindsight as to whether a party could have done better had they mediated. If no mediation was held, a decision could be vacated. The parties therefore should be prepared to mediate every case, and, as stated by Judge Polster, mediate as soon as is practical.

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