Mediation Agreement in the Courtroom

Abstract

Existing European legal scholarship focuses primarily on legal frameworks and conditions for mediation, while not delving into practical aspects of mediation on the ground. Concurrently, the social sciences lack the analysis of roles and approaches of different actors in mediation. To this end, the study intends to bridge the seemingly intangible divide between disciplines with the specific aim to uncover processes leading to mediation agreements in the context of court-annexed mediation in the Czech Republic, a state embarking on mediation theory and practice relatively recently. The qualitative analysis shows variation among judges of district courts in terms of knowledge, trust, and commitment to mediation. In theory, judges rather agree on the value added of mediation, and they tend to believe the ideal outcome of the process is the agreement among parties leading to action withdrawal. Where they differ are the practical aspects related to the character of the agreement, namely (i) who shall support the parties in reaching the mediation agreement; and (ii) to what extent and how are judges in the courtroom ready to work with mediation outcomes in the post-mediation phase. In some cases, it is crucial that they receive agreements fully in line with the criteria of non-contradiction with substantive law, specificity, and covering all aspects of the dispute. In other cases, there is more openness to engage with the agreements and willingness to support the parties to finalize them upon return to the courtroom to adjust them to the satisfaction of both: the parties and the judges.