Court Ordered Mediation

Rice fields in Laos (Photo credit: Wikipedia)

In Laos, at least if the judge is observing protocol, a dispute that has been submitted to the court will, before it is litigated, be the subject of a court mediation. In most places such a mediation would be handled by personnel different from the judge who would try the case should mediation fail. Not in Laos.

In Laos, the judge who has been assigned to try the case is the same person who attempts first to mediate the case. Not only does this failure to separate the functions of the judiciary lead to concerns about confidentiality and predetermined bias when it comes time for trial, but it can also affect the outcome of the mediation itself.

In a landlord tenant dispute that arose some time ago, after the tenant checked out of the premises, the landlord sought a large sum of money from the tenant for damages the landlord claimed had been inflicted by the tenant on her furnishings and fixtures. From the outset it was questionable whether the damages had been there at the beginning of the tenancy or if they truly were the fault of the tenant.

Accusations flew. The landlord filed suit and the tenant counterclaimed. The judge set a date for mediation.

Come the mediation it quickly becomes a question of how much. After a few goes at negotiation the tenant reached the point where he was unwilling to go any higher, but at which point the landlord was not satisfied.

When it became apparent that the two parties were at a deadlock, the judge spoke up. He pointed out that the tenant had failed to note any damages prior to assuming the tenancy. He cited law and said that according to that law the tenant was liable for the damages. Finally, he said that if the case was not resolved that day the tenant would probably lose at trial.

After careful consideration of the judge’s words–the same judge who would try the case if it did go to trial–the tenant raised his offer and the case was settled.

This is just one example of how the lack of separation between the functions of mediator and judge can affect the outcome of a case in Laos.