התערבות שיפוטית בהסדרי גישור

Translated title of the contribution: Judicial Intervention in Mediated Agreements

עמוס גבריאלי, מיכל אלברשטין

Research output: Contribution to journalArticlepeer-review

Abstract

Judicial intervention in agreements originating in private mediation processes has resulted a blurring of boundaries between the private and public spheres.In this article we examine the ways in which judges treat settlements and mediated agreements that have been brought before them for approval. In other words, we study ways and degrees of intervention in the developing interface between authority and consent. We do this through an analysis of the role of both judges and mediators in the process of conflict resolution.At times, parties to a mediation process may choose to bring their private mediated agreement for approval by the court in order to reinforce its status. At other times,specific legal arrangements demand that a mediated agreement be approved by the court. These diverse legal arrangements allow us to examine different grounds for court intervention and identify and define criteria for judicial examination of mediated agreements. In addition, we ask whether there is a difference in the way courts treat settlement agreements reached through mediation as opposed to settlement agreements reached without the involvement of any professional third party.We have found that, in general, courts tend to approve mediated agreements without a close inspection or assessment of their content. Nevertheless, there is a tendency to intervene when the following can be demonstrated: there is clear illegality, the agreement is contrary to public policy; the agreement has been made for the sake of appearance only; issues of confidentiality or privilege arise; formative flaws affect the essence of the agreement; harm has been caused to third party rights; there is concern that one or more of the parties did not intend to enter into the agreement; and some elements of the agreement are not legally enforceable.Israeli law does not regulate judicial involvement in settlement agreements. Judges exercise their own discretion and apply their own personal perceptions of, among other things, the importance and uniqueness of consent in general, and the role of the mediator in its design in particular. The case law we have analyzed does not indicate any unified criteria for examining mediated agreements. Judicial conduct demonstrates that courts do not perceive mediators as playing a role in assessing the public interest inthe agreements they assist in designing, that is, the courts see mediators as only being in charge of the private interests of the parties before them.We argue that there is a need for clear and unified standards for the judicial examination and approval of settlements. Such criteria should take into consideration the type of mediation procedure and the role of the mediator within it. Standardization through clear rules, as well as consistent judicial application, will impact the conduct of mediators and impose a duty on them to apply public norms in private agreements, as a built-in interest in the consent of the parties. This is because the mediators will be aware that such public norms will be taken into account by the court when the agreement is brought before it for approval.
Translated title of the contributionJudicial Intervention in Mediated Agreements
Original languageHebrew
Pages (from-to)125-167
Number of pages43
Journalהמשפט כתב עת לענייני משפט (שנתון)
Volumeכ"ז
StatePublished - 2021

IHP Publications

  • ihp
  • Class actions (Civil procedure)
  • Conciliation (Civil procedure)
  • Courts
  • Dispute resolution (Law)
  • Judges
  • Mediation
  • Mediators (Persons)
  • Persons (Law)
  • Political questions and judicial power

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