Author: Yang Cuiying
With the recent amendment of the policy concerning court-connected mediation in China, court-connected mediation has been brought back into the public attention. While it is heralded enthusiastically by courts as a significant approach to solve disputes and clear court dockets, the current court-connected mediation is, at the same time, under severe criticism due to its imperfections both in legislations and in practice.
At present, Chinese courts are addressing to build a mediation system which aims to integrate people’s mediation, court-connected mediation and administrative mediation so that they can cooperate and complement one another in resolving disputes and maintaining social stability.
Consequently, it is worth having a close look at the status quo of court-connected mediation. Does it operate well within the current legal framework? Does it fulfill the expectation of legislatures and courts? The following analysis will shed some light in answering these questions. Part Ⅱ of this essay gives a brief overview of the background of Chinese court-connected mediation, its characteristics in the context of china and how it operates in court. Part Ⅲ explores the reasons behind the promotion of court-connected mediation in china. Part Ⅳ summarizes and analyzes the defects of court-connected mediation. Part Ⅴ concludes with a summary of court-connected mediation.
II. Background of Court-connected Mediation
1. The development of mediation in court policy.
The use of court mediation program dates back to mid-1950 when the Supreme Court came up with the policy of “mediation should be given priority”. Due to the unhealthy trend of coerced mediation as courts went too far in complying with it, the policy was phrased as “mediation should be emphasized” in the temporary version of Civil Procedural Law of People’s Republic of China (CPL) in 1979, and it was later amended to be “mediation should be conducted on the basis of voluntariness and legality” when written into the 1991 CPL.
At the turn of 21st century, the policy witnessed a drastic change as litigation was stressed and mediation was placed to a less important position. There was even a heated debate concerning whether court mediation program should be abolished from the existing legal system and some scholars called for a reform of court-connected mediation.
From 2005 to 2008, the Supreme Court defined court-connected mediation policy as “mediation and adjudication should be integrated to truly solve disputes” in work reports, and mediation was regarded as significant as litigation.
In 2009, the policy was revised in order to enhance the position of court mediation as “mediation is preferred and mediation and adjudication should be integrated to solve disputes”. Commentators believe that this amendment has an implication that greater importance is attached to court mediation and mediation will be applied more often than ever in the future. In 2011, the courts are going a bit further to apply the court mediation at the stage when the claim documents are submitted to the court and the case is not yet to be registered in an attempt to solve the disputes before they enter into the court proceedings. When mediation is successfully conducted between parties, the agreement resulted therefrom could be applied to the competent courts for judicial recognition and enforcement.
From the aforesaid development of court policy towards court-connected mediation, it could be seen that Chinese courts long ago have realized the significance of mediation in solving disputes, and endeavor to integrate the mediation into the court system in order to truly “close the files and resolve the disputes”. However, Chinese courts are struggling to find out how to seamlessly integrate mediation into court system to bring the best out of them, how to conduct the mediation in the court proceedings, etc., demonstrated by Chinese courts’ constantly-changing policy from either blindly upholding mediation or casting doubt on mediation, to treating mediation and litigation equally and currently “mediation is preferred”. Although in recent years Supreme Court has publicized numerous judicial explanation and documentation to elaborate on dos and don’ts in application of mediation in trials, there are still room to improve in practice. More details would be provided in Part Ⅳ.
2. Characteristics of Court-connected Mediation
First, court-connected mediation in china is perceived as part of the judicial trial activities and a way to settle disputes as opposed to litigation. The court-connected mediation is based on voluntariness and parties are free to opt for mediation. Besides, the mediation is presided by judges who assist parties to reach an agreement to solve their disputes. The parties will proceed to litigation when mediation fails.
Furthermore, court-connected mediation embodies a combination of judicial power and parties’ discretion to dispose of their substantive rights. As Changzheng Guan concluded in an article, “On one hand, parties are granted with the freedom to use court mediation program and the agreement is reached on the basis of voluntariness. The voluntariness indicates that parties are entitled to make compromises and concessions to solve disputes by abandoning or assigning substantive rights. On the other hand, court-connected mediation does not merely take place between parties but also involves judges. It is under the guidance of judges that parties make an agreement to maximize their interests.”
3. Court-connected Mediation Process
According to the latest Civil Procedural Law of People’s Republic of China in force, court-connected mediation may start, in any stage of litigation, before court decision is rendered. When considered appropriate, judges will ask parties whether they are willing to go to mediation or not. Once parties’ consents are obtained, judges should explain to parties mediation procedures, inform parties of their rights and obligations in mediation and employ simplified methods to notify parties and witnesses to appear in court.
Since 2011, parties will be offered the choice of mediation when they intend to register the case. If the to-be Claimants opt for mediation at this stage, the court would not register the case but contact the to-be Defendants for their intention of mediation. When the mediation fails or to-be Claimant refuses mediation, the court would duly register the case and commence the court proceedings accordingly. Nonetheless, mediation may be conducted throughout the court proceedings by the presiding judge upon parties’ consent or when the judge deemed appropriate. The judge will listen to each party’s ideas on the settlement before conceiving a proposal acceptable to both parties.
When an agreement is reached by parties, both parties will sign a Settlement Agreement and submit a copy thereof to the court for issuing Mediation Award, or Claimant may withdraw the case to settle the dispute. If a binding Mediation Award is preferred by parties, the court will draw up a mediation agreement which sets forth the result of the mediation. The mediation agreement should be duly signed by both parties if no disagreement is raised on the terms thereof. Later the court will prepare the Mediation Award which would be served on both parties. Once the Mediation Award is received by both parties, it would become legally effective. When mediation fails, judges should terminate it timely and resume the litigation process.
Ⅲ. Benefits of Court-connected Mediation
It is widely accepted in academia and practice that court mediation has remarkable advantages such as relationship restoration, efficiency, self-determination and maximization of interests.
A close look at the legal system and environment of China will reveal that there are at least two reasons behind the recent popularity of court-connected mediation.
The major reason behind the increasing use of court-connected mediation is that it is perceived to help solve disputes effectively. One civil judge from local courts told a journalist that it is a good trend to use court mediation to settle lawsuits. Years of trial experiences show him that hostility between parties still remains after litigation, and it is not infrequent that parties are dissatisfied with court decision although it is rendered pursuant to existing laws and rules.
One of the drawbacks of the traditional litigation is that a legitimate court decision does not mean it is a reasonable one. While legislatures and judges endeavor to make court decisions both legitimate and reasonable, and yet it is difficult to achieve that goal due to complexity of reality and imperfections in legislations. Thus, more often than not, the dispute remains unsolved although the file is closed, which is demonstrated by a large number of appeals and retrials. With current limited judicial resources, courts are overwhelmed with a full docket. Conversely, by distributing disputes into the channel of mediation, there is a higher chance that parties are able to negotiate a legitimate and reasonable agreement in their interests. Hence, parties are less likely to resort to appeals or retrials and the caseload of courts could be reduced to a large extent. Furthermore, according to judicial experience, parties usually are more willing to enforce the mediation award, which is a great help to alleviate the pressure in enforcement on courts.
Another reason is related to the notion of harmony deeply rooted in Chinese culture. When there is a dispute, they prefer solving it in a moderate way such as negotiation and mediation other than litigation. It is commonly recognized that to solve a dispute is to find a way to put an end to it rather than to determine or defend rights, so that the injured relationship could be repaired. For this reason, mediation fits the distinct culture in china all the better.
Ⅳ Critique of Court-connected Mediation
As previously mentioned, although Chinese courts understand the significance of mediation in helping resolve disputes, the courts’ mixed attitudes towards mediation and different understanding of mediation in legislature and practice make the current court-connected mediation less attractive.
1. When the scale tips to mediation
Nowadays, the court policy towards court-connected mediation is phrased as “mediation is preferred and mediation and adjudication should be integrated to solve disputes”. Some critics have raised the concerns related to the vigorous judicial promotion of court-connected mediation in recent years. Although the current mediation policy is designed to encourage courts to use mediation to its advantage, the undue emphasis on mediation is, in practice, wrongly comprehended by some courts and thus the real intention is distorted when it comes to implementation.
In order to carry out the new policy, some courts take one step further by singling out the successful rate of mediation as a significant criterion in assessing a judge’s annual working performance. For instance, Xinjiang Shanshan county court openly set a successful rate of mediation at 85% . The president of High Court in Heilongjiang province said to a journalist, “We endeavor to use court-connected mediation to settle all cases prescribed by law as suitable for mediation. In addition, the successful rate of mediation is set and whether judges can reach this rate will have impacts on their annual assessment, bonus and promotion.”
Beyond doubt, such imposition of mediation upon judges will cause a series of problems. Mediation should be provided as a method for judges to solve disputes rather than as an ultimate goal. The approach to link mediation rate to the personal interests of judges inevitably put judges under immense pressure to end a case by court-connected mediation and artificially creates an incentive for judges to mediate a case. Notwithstanding judges do not have an interest in the dispute per se, they, now thanks to the pressure imposed by the court, do have interests in having the dispute solved and an agreement reached, so as to obtain a good annual assessment and safeguard their own material benefits.
However, the only possible and legitimate interest for a judge to mediate a case is to resolve the dispute so that parties will leave the court with a satisfactory outcome rather than hatred and grudge. Unfortunately, this will not be possible under the current approach adopted by some courts.
Furthermore, this approach would likely result in coerced mediation. The pressure from annual assessment will be likely to shift to parties as judges tend to push, rather than suggest, parties to enter into mediation and even coerce them into reaching an agreement. Due to the current loose procedures for court-connected mediation and a weak supervision mechanism, the coerced mediation would only produce more dissatisfaction. Therefore, the core value of voluntariness in mediation is greatly undermined.
The undue emphasis in the successful rate of mediation also overlooks the fact that reaching an agreement should not be the only focus in mediation. Mediation does not guarantee settlement but encourages settlement. Undeniably, it would be the most satisfactory result if parties can solve disputes during mediation. Even though they fail to do so, parties can still benefit from the mediation process as their participation at least will help reduce hostility and enable them to further understand the position of the opposite party and thus, they might be more co-operative in the following litigation proceedings. In short, it is time for courts to view mediation from a new perspective and not to blindly pursue high successful rate of mediation. The effectiveness of mediation should not be gauged merely by the outcomes and more attention should be directed to the benefits from participation in the process.
2. Defects of Article 93
Article 93 of CPL is another area which is exposed to severe attack in the current academia. Article 93 sets out that “In handling civil cases, the court shall distinguish the right from the wrong, and conduct mediation based on the principle of voluntariness and clear facts.” And the controversy centers on whether it is necessary to establish “distinguish the right from the wrong” and “clear facts” as the basis of mediation.
The proponents insist that mediation should be based on clear facts. When facts are ascertained and rights and obligations are clear, judges, by explaining existing laws and rules, are in a better position in persuading parties to reach an agreement. Thus, the establishment of clear-fact principle will help judges to conduct mediation effectively and aid parties to produce an agreement expeditiously.
The weakness of this argument, in my opinions, lies in the misconception regarding the role of judges in mediation as educators. They expect judges to educate parties on right and wrong through the presence of facts, and enhance their legal awareness in the hope that parties will realize their faults and thus, come into an agreement. The logic is similar to that two students are having a quarrel and resort to their teacher to solve the dispute. Instead of making an immediate decision as to who is right and who is wrong, the teacher, after ascertaining the facts, enlightens the students to see where they are wrong and encourages them to make peace with each other.
But parties are not students, nor are judges teachers. During mediation session, judges are there to facilitate the communication between parties and assist them to produce an agreement voluntarily. Not educating.
Some critics point out that the principle of clear facts confuses the bases of mediation and adjudication. I agree with the argument. Fact investigation should be the basis of court decision but not necessarily of mediation. In litigation, judges are required to treat the issue of facts scrupulously and the facts affirmed in the judgment should be supported by sufficient evidence. Quite to the contrary, the nature of mediation is voluntariness and party autonomy. Mediation inevitably involves compromises and concessions on facts so as to reach the agreement and it is the parties’ freedom to do so as long as it is within the legal framework. “The justification of agreement does not flow from its consistency with facts but rather comes from the recognition and consents of parties.”
The court decision should embody justice and justice cannot be achieved without fact-finding. However, mediation might produce the outcome with maximum benefits but not necessarily the most justice to both parties. Therefore, facts are less important in mediation.
It would be beyond the expectation of proponents that clear facts, rather than boost an agreement, might turn out to be the obstacle to achieve it. One of the reasons for parties to enter into mediation voluntarily is to avoid the possible unfavorable judgment. The uncertainty of court decision, to some extent, compels them to explore a more beneficial and flexible solution. If right and wrong is apparent and the fact is crystal clear, it is less likely that parties are willing to go to mediation as the uncertainty is greatly reduced. It is not infrequent that the party with a lower chance to win is more willing to go to mediation while the opposite party, almost with a victory in the hand, will be recalcitrant to mediation. Even if he comes to mediate, he possesses more leverage to extract an agreement in favor of him.
With another look at this principle, one may infer that mediation could only start after forensic investigation. However, as it is prescribed that mediation could take place in any phrases of litigation , the principle of clear fact obviously contradicts the above. To some extent, the principle of clear facts cannot come into play when parties go to mediation before forensic investigation, such as the mediation conducted after the claim documents are submitted but the case is yet to be registered. At this stage, the fact-ascertaining will not commence unless the dispute has entered into the formal judicial proceedings. To comply with this principle, it means no matter when parties suggest mediation, the process can only start after forensic investigation, otherwise clear facts cannot be obtained, which artificially thrust forensic investigation stage before mediation and cause a great loss in efficiency.
The clear-fact principle also comes at odds with judicial experience. In some cases, parties are likely to reach an agreement before trial and if the court insist parties go through forensic investigation pursuant to this principle and ignore parties’ freedom in disposing of their substantive and procedural rights, parties may opt for litigation due to the deprivation of procedural freedom in mediation, which runs contrary to the purpose of clearing cases from court dockets and bringing a faster resolution to disputes.
In short, one of the aims and advantages of mediation is to enhance efficiency and party autonomy, and thus devote more judicial resources to those areas in greater need of litigation. If every dispute has to be solved on the basis of clear facts, the main attraction of mediation will be lost. Consequently, article 93 is advised to be amended as “In handling civil cases, the court shall conduct mediation based on the principle of voluntariness and party autonomy as long as it does not violate any compulsory laws, administrative regulations and rules.”
3. The dual role of judge and mediator
One of the characteristics of court-connected mediation in china also triggers a wide controversy. That is, whether judges are suitable to undertake the role to mediate a case.
Although one might argue that due to the fact that in china, parties usually place a great amount of trust on judges and thus, the presence of judges as mediators, inter alia, the presence of highly recognized authority, will result in parties’ active participation. Also, the opinions from judge-mediator will be considered more carefully by parties than from non-judge mediators. Besides, as judges are more familiar with the case, they are the ideal people to conduct mediation so as to save time and efforts. In a whole, mediation is regarded as a method to end the litigation proceedings, who can be more suitable than judges to do this job?
However, the dual role of judge and mediator, no matter in theory or in practice, seems to present more problems than it solves. S. Roberts and M. Palmer once questioned the unavoidable impact of judges’ adjudicative role upon mediation process, writing that
“Can members of other professional groups mediate safely given the public perceptions that have been generated by the exercise of their primary roles?”
“Given the long-standing familiarity of the public …….and with the authoritative decision-making of the judge, can either avoid bringing that primary persona into the very different role of the mediator?”
A lot of scholars come with a “No” to answer those questions. It is agreed among them that the role of judges as mediators would, without any doubt, changes the dynamics of mediation process, which could be well summarized as follows:
“The adjudicator represents the neutral superior, seen to hand down an imposed decision, compliance with which is externally guaranteed by the state. This in itself is going to colour the way in which mediatory intervention by registrars and judges is perceived by disputants, whether the specialists themselves want this or not. This authority is inevitably going to make disputants more disposed than they might otherwise be to follow their suggestions, and be receptive to their persuasion.”
In practice, the impact on mediation dynamics of judicial power possessed by judges cannot be underestimated. On one hand, despite the prescribed voluntariness principle that parties can either accept or refuse mediation, this principle cannot be effectively guaranteed with the judges undertaking the role of mediator. In most cases I have handled, it is common that when judges seek parties’ opinions on mediation, parties cannot help being worried. They are not worried about whether to conduct mediation or not but worried about the consequence with a reject to the judges. Especially for those with little litigation experience, parties cannot be shielded from the thoughts that the refusal of mediation suggestion from judges will be taken as an open contempt to judicial authority and they are likely to face a consequential unfavorable judgment if mediation unfortunately fails. Under this illusion, parties usually accept mediation against their will. As a result, “In ‘in court’ mediation, control is taken back by third parties despite any illusion that it is handed over to the parties themselves.”
On the other hand, the major difference of judge-mediators from non-judge mediators lies in the potential coercive power vested in judges, due to the fact that the dispute, following the break-up of mediation, will be directed back to the litigation track and the previous mediators will put back the hat of judges and impose a decision subsequently. Usually, judges have great difficulties in managing their role as judges and mediators. In order to bring parties close toward an agreement, judges will, consciously or not, risk sliding toward the role of judges in mediation session, less acting in the capacity of mediators but more of judges, which makes it a lot more difficult for parties to isolate from adverse impacts of judges being mediators. How can a judge refrain from being evaluative in mediation? Would the parties reach an agreement out of the awe and coercive power of judges?
To sum up, all problems arising from the dual role of judges and mediators can be boiled down to the conflicts between mediative role and adjudicative role of judges in nature. In China, court-connected mediation is treated not so much a dispute resolution as a function of judges, the approach of which is similar to German where the judge conducting mediation will serve as the judge in delivering the judgment if the mediation fails. However, from the analysis above, it can be drawn safely that the adjudication role of a judge is impossible to reconcile with the mediation role. The concentration of the two roles into a judge only weakens the effects of mediation considering that the adjudicative role of a judge in china is always in a dominant position as opposed to the medicative role.
To solve the inherent conflicts between mediative role and adjudicative role of judges, the best solution is to separate the two roles, assigning the meditative role to an independent judge so that judges hearing the case would not join the mediation process and the judge in charge of mediation would not be involved in the decision-making when mediation fails. Setting up such a firewall would ideally isolate the undue influence from adjudicative role of judges and guarantee the party autonomy and voluntariness of mediation. Such solution would unavoidably increase the current courts’ workload and consume more resources, but it should be borned in mind that courts should not be the only place to solve disputes. Other dispute resolutiona should be made use of to solve disputes. When the dispute finally arrives at the court and is distributed into the mediation channel, at least the parties are entitled to walk away with a satisfactory outcome, no matter in the form of mediation award or judgment.
4. Mediation is not ultimate panacea
Due to the inherent defects in written laws, the existing laws and regulations cannot cover all areas of life and foresee any and all possible legal disputes. As a result, when no guidance could be drawn from the existing laws and regulations regarding a controversial legal issue, the judges will become hesitant in handling a judgment, worrying that the judgment may be under attack once published, or contradict with those rendered by other courts addressing a similar problem. Consequently, the judge will wish to mediate the case more eagerly than ever so as to avoid determining the case in the form of a judgment.
However, mediation should not serve as the harbor for judges to take a shelter when a repeated legal issue requires for judicial clarification. Some constantly-arising legal issues would not be solved by successful mediation. If the courts repeatedly avoid determining the legal issues, the legal problems could not be solved eventually. Therefore, in this case the court should stand up and decide the case, which would be greatly beneficial for mediation of similar cases in the future. When the courts clearly show their stance in a certain legal problem, the parties would be able to foresee the outcome of a dispute submitted to the court, which will guide them properly in mediation in future.
5. The weakness in current supervision mechanism
Within the existing legal framework, court-connected mediation is incorporated into the process of litigation and does not have independent procedures, which is justified considering that the effectiveness of mediation comes from party-autonomy, the mediation procedures should be more relaxed than litigation or even left to parties. As Lon Fuller once said, “Mediation is commonly directed, not toward achieving conformity to norms, but toward the creation of the relevant norms themselves.” “There is no pre-existing structure that can guide mediation; it is the meditation process that produces the structure.”
Further, it is prescribed that once the parties signed an agreement reached in court-annexed mediation, the agreement, when phrased in the form of mediation award, will be given equal legal validity as a judgment, which aims to encourage parties to make use of court-connected mediation. As Scott H. Hughes once wrote, “A publicly announced decision to enforce the settlement would, in turn, encourage parties who want to try to settle their cases to use the court's mediation program for that purpose. An order appropriately enforcing an agreement reached through the mediation also would encourage parties in the future to take mediations seriously, to understand that they represent real opportunities to reach closure and avoid trial, and to attend carefully to terms of agreements proposed in mediations.”
However, problems are emerging to the surface when procedural arbitrary and judicially enforceable mediation awards come with a weak supervision mechanism.
According to the existing civil procedure law, the court decision can be submitted by parties unconditionally to appeal and retrial under fifteen circumstances while the mediation award is rejected outside the door of appellate courts, and retrial is only available under two circumstances when it is proved to be against parties’ will or violate laws and rules. Despite retrial procedure could be initiated by courts and prosecuting attorneys, this is only applicable to judgment and ruling whilst mediation award is unfortunately not included. As a result, parties are obliged to comply with the mediation award unless they could prove the award either against parties’ will or against laws and rules. However, it is very difficult to prove that the award is against parties’ will as it is signed by parties themselves. So the only possible way of annulment is to prove illegality, but this could not provide adequate relief for parties harmed by the defected mediation award.
Also, when it comes to litigation, judges are bound by strict procedures in place so that a fair outcome can be guaranteed and the fairness of court decision is further secured by the appeal and retrial system. To the contrary, once the dispute is placed in the context of court-connected mediation, the lax regulation in this area creates a vacuum in which judges could conduct mediation process in an arbitrary way with less procedural restrictions. When parties misfortunately end up with a coerced agreement due to the unfairness of mediation procedures, because the agreement, in the form of mediation award, is judicially enforceable and the supervision mechanism is ill-designed, parties are stuck with the unfair outcome. At the end, parties are the ultimate victims and since the dispute could not be solved with currently available tools, they might resort to illegal ways. Consequently, an independent supervision mechanism should be in place to fill the holes to eliminate parties’ worries in using court-connected mediation.
The vigorous promotion of court-connected mediation demonstrates courts’ determination in improving dispute resolution in China and in some sense it certainly meets courts’ expectation in solving disputes effectively.
Nonetheless, all the defects discussed above reveal the immaturity of court-connected mediation in china. It unveils a fact that the understanding of court-connected mediation among law-makers and courts is not yet clear and still remains in an exploratory stage, which results in contradictions in the existing provisions and presents misunderstandings in practice.
Courts overemphasize court-connected mediation as a way to solve disputes apart from litigation while overlook the beneficial influence from the mediation process per se.
Besides, confused with mediation and litigation, law-makers tend to view mediation in the same way as litigation and thereby mistakenly insert criteria of litigation into the handling of court-connected mediation. It still takes time for courts to draw a clearer distinction between mediation and litigation.
Furthermore, courts seem to hesitate over whether court-connected mediation is a dispute resolution or a function compatible with the role of judges. Sometimes courts seem to move closer in recognizing court-connected mediation as an important dispute resolution, but in other situations they are inclined to favor it as a function arguably performed by judges.
In addition, mediation is not ultimate panacea and has its own defects. For some legal problems, courts should not blindly resort to or uphold mediation as the best option but rather determine the issue accordingly so as to set forth a clear guidance for the subsequent cases to follow. In that case, mediation would be successfully achieved to a great extent.
Lastly but not the least, the inadequacy of relief provision in court-connected mediation will ironically drive parties to opt out of this method, which comes as a surprising blow to law-makers.
Mediation is effective in resolving disputes between parties without the adversarial environment in litigation and yet it would only take effect with a correct understanding in theory and application in practice. In view of current Chinese court-connected mediation, a greater amount of efforts are demanded to improve both legislations and judicial practice.
For law-making, a distinct line should be drawn between mediation and litigation. If the laws blur over the nature of mediation and litigation, the law observant would be confused and the advantages of mediation could not be seen. The procedural arbitrary requires a strong supervision mechanism to safeguard parties’ interest in mediation process and mediation outcome.
For judges who are the frequent users of mediation, a notion should be taken roots in their mind that mediation is a means but not the end. Mediation, under no circumstances, should be used for the purpose of application of mediation. That when and how to use court-connected mediation should be subject to the party voluntariness and the nature of the dispute per se. Judges should encourage rather than compel parties to consider mediation as a dispute resolution. Only with the correct understanding of mediation could the courts take a right attitude towards court-connected mediation. Despite Supreme Courts in recent years publicized a lot of judicial explanations and documentation regarding dos and don’ts in application of mediation in trials, it seems not to achieve the desired effect. In addition to the guidance from Supreme Court, more training should be provided to judges to better understand and use mediation within the court system.
With the understanding of court-connected mediation deepened, it is hoped that mediation one day would serve as a powerful tool for judges to solve disputes and a welcomed dispute resolution for parties to benefit from.