Legal and Functional Conditions of the Paradox of Judicial Mediation

Abstract

The aim of the article is to analyse the phenomenon of the paradox of court mediation, understood as its limited practical application in the resolution of civil, commercial, and family disputes. The scope and nature of the phenomenon have been determined based on statistical data. The analysis points to two key aspects of the paradox of court mediation – the number of decisions to refer a case to mediation and the number of proceedings that end with a mediated settlement. Based on the assumption of judicial rationality, the analysis addresses the issue of decisions to refer a case to mediation, as well as related assessments of the suitability and advisability of mediation in a given case, and the potential for reaching an agreement. These issues indicate the areas that need to be considered in the judge’s decision-making process. Court mediation is a more complex process than out-of-court mediation due to both institutional and functional conditions, with the dynamics of the conflict playing a particularly crucial role. The analysis of these conditions suggests that achieving a settlement in court mediation requires a transformational approach to reverse the negative effects of the institutionalization of the conflict. This justifies high expectations regarding the competencies of court mediators, particularly in light of the risk of sham mediation, and simultaneously allows conclusions to be drawn regarding the causes of the paradox of court mediation.