by Wan Zafran Pawancheek
Published March 8, 2019
Litigation, for most people, is an act of last resort.
Sometimes, it’s the only way out, especially when parties can no longer see eye to eye, or when communications have broken down so badly that parties are only able to write to each other through their lawyers.
If disputes have come to that stage, parties cannot be forced to resolve such cases by themselves. Judges must hear them, and decide upon the outcome of the dispute for them.
Yes, this seems like such an obvious point. Yet in the past few years there has arisen a trend where judges - of all people - have requested/insisted/demanded of parties to ‘mediate/settle’ cases outside court. I argue that this marks an abuse of the judicial process.
Judges have a duty to hear and decide cases. Note the difference:
Judges can decide a case, whether for or against you.
But judges cannot force you to mediate/settle a case outside court, especially if you do not wish to do so.
If you want a trial, and no procedural issue bars it from being held (e.g. court directions that you have not complied with, pressing legalities such as your right to appear/locus standi, the wrong use of a mode of process), your matter must proceed to a trial before a judge.
Despite this, some judges may still hesitate to hold a trial.
Arguably, a judge doesn’t appear to do much at trial. A (proper) judge mostly listens, and interrupts where necessary. It is counsel and their witnesses who are truly in action at trial.
But listening is taxing, and judges must sit in and devote their thoughts entirely to and throughout the trial proceedings (or at least give the appearance of doing so). This, among other reasons, can give judges enough incentive to hesitate from holding too many trials, as:
trials aren’t easy - they require significant preparation, take up much attention and energy, and are generally tiring all-day affairs;
complex trials often stretch on for days, weeks or months on end - and as such cases won’t end early, this may affect the judge’s own job-performance ratings (their so-called key performance indicators);
judges may have no interest in the subject matter;
judges may themselves have little to no previous experience of conducting trials (which is a shame, but which does happen) and do not want their inexperience to be on display;
a few judges may find their cushy secure positions conducive to laziness.
(That last point on laziness is not often put in writing. But it is a genuine problem, which any counsel can easily find out just by mentioning the names of judges known to be problematic.)
Judges who want to avoid the hassle of trial are able to employ procedural devices to ‘force’ parties to mediate/settle outside court without actually saying so. These methods are not entirely effective, but can get parties to start talking. For instance:
they can adjourn proceedings for long periods of time - even under protest - citing one procedural reason or another;
they can also ‘warn’ parties in the strictest of terms that if they proceed to trial based on the documents already filed, a decision is likely to be made against them (which is an instance of prejudging a case, and deserves another article altogether).
More egregious abuses, and variations on this theme, also exist:
I’ve a learned friend whose judge screamed at him for insisting on a trial. (“You want a trial? I’ll give you a trial!” shouted the irate judge who was compelled to proceed.)
In one matter, a judge called us counsel into chambers after trial. We appeared upon her direction to collect her decision. Yet she refused to provide it, and instead adjourned her decision to another date - while insisting throughout that parties should settle the dispute among themselves, without considering the four prior failed attempts at settlement/mediation and the years of contentious litigation that preceded trial.
Mediation/settlements may cause injustice to plaintiffs. Plaintiffs, when they come to court, have usually suffered some loss through a defendant’s (alleged) wrongdoings. Yet at mediation, or when settling, plaintiffs are often asked to waive part of their losses, even when they should not have suffered any in the first place. I’ve even seen plaintiffs being asked to accept losses as a starting point to talks - which in my view is an extremely wrong approach to mediation. (Some mediators raise this fallacious argument: “…you win some, you lose some.”) In circumstances like these, the mediation/settlement process is not really a ‘resolution’ – it is an unjust end.
Some judges conduct mediation without training. I once went before a High Court judge, who wanted parties to mediate before her. When she suggested mediation, I asked if she intended to do it in accordance with the Mediation Act 2012. She answered, with all seriousness: “…What Act, counsel?” She did not even know of the Act’s existence. In the ensuing ‘mediation’ in her chambers (which my client had to agree to, for fear of judicial rebuke), this judge kept on urging my clients to let go of their demands, as they were, in her own words, “already rich” . I’ll stop there.
Sometimes, disputes can never be truly over until parties are properly heard at trial. Mediation/settlements are neither trials nor hearings. They do not have the same effect as one, and you will find stories of litigants dissatisfied because their grievances were never heard. In contrast, a judge’s primary duty is to hear disputes. So if parties want to be heard and to have their day in court - and if there is every lawful reason for it to be heard - judges must hear them.
An excuse for laziness. The public really could not care less for a judge’s performance ratings or the expeditious disposal of the backlog of cases – the judiciary’s internal issues are theirs alone. Litigants just want their own cases to be heard and disposed off properly, which is not an unfair request to make. So when judges force parties to mediate/settle, it is not wrong for the public to assume that judges do so out of laziness, as they have little to go by other than what is before them.
The worst part of it all: Counsel are quite powerless to insist on a trial when judges don’t want to hold one. If they demand too hard, or report a forceful judge, those same judges may think of them as ‘hostile’ or hold a grudge/decide against those counsel or their clients. (Don’t underestimate the base human desire for ‘vengeance’ - judges are humans too.) And a trial before a difficult judge is, to put it nicely, never something to look forward to.
It has therefore become somewhat of a usual practice for counsel these days, especially when faced with a judge who forces mediation/settlement, to first ‘accept’ that judge’s ‘suggestion’; this is to stave off the appearance that their clients are belligerent. Parties then return to court after going through the usual motions - which may take weeks or months, all this being a regrettable waste of time and money that could be more efficiently avoided just by holding a trial sooner.
The judiciary will, of course, never acknowledge this trend. But many court litigators can share their own experience of similar judicial conduct, done to them expressly or impliedly.
Claims that end quickly don’t always end fairly. At this point, all that can be done is to express caution to the public: if you find yourself in a position where you are being asked to mediate/settle, by a judge, but you think your case is deserving of trial, then insist upon your right to be heard. If the judge decides against you, your only recourse is to appeal; but if the judge takes to personal remarks or personal conduct to spite you for not mediating/settling outside court, write all this down and consider lodging a formal complaint against that judge.