INTRODUCTION TO LEGAL STUDIES, fifth ed.
The JUDGE is based on norms. He is the expert in norms (and the ability to fact find). He must be able to speak with authority on existing questions of norms and facts. He gets the parties to give exhaustive answers to the questions under dispute. (This combined with being regarded as having knowledge of the norm will be sufficient to assure his judgements are respected.) He looks backward. He decides who is right. He might have to decide that one party is completely right. The norms sometimes demand decision in favor of one.
The MEDIATOR influences both parties by appealing to their interests. He reduces ideology, attempts to ignore normative engagement. Right and wrong he tries to avoid, instead pointing focus towards the future. He stresses that interests are more important than the question of who is right and wrong, or by arguing that one ought to be reasonable and willing to compromise. The very fact that a third party proposes a suggestion may, in certain cases, be enough for the parties to accept it. If the main thing for them is to have the dispute settled, and it is of secondary importance what the content of the solution is, it will require very little for them to comply with the judgement. He uses persuasion to push through a conciliation: He may promise help in the future or threaten to ally himself with the other if one doesn't accept his compromise, or use sanctions. He sometimes refers to a norm (concerning right and wrong) to bring the parties to renounce unreasonable demands so their points of view approach each other. He finds constructive solutions. (If the mediator lets himself be influenced by the parties to see the normative aspects as the most important, he ends up judging instead of mediating, which might happen if he makes up his mind one party is completely right and working on a compromise becomes distastful for him.)
Both gain prestige. Both must be seen as impartial.
The JUDGE must learn, map out the factors which promote and hinder compliance to judgments. The outcome of a case will not in itself be testimony to his giving equal consideration to both parties, so he must build up integrity over time. The judge may assume a retired position during the procedings and not engage in argumentation, letting the judge appear as a ‘mouthpiece of the law,’ who cannot himself exert any influence worth mentioning, avoiding appearing as personally responsible for his decisions (in his own and others eyes), giving the appearance that decisions are the product of knowledge and reason, and not of evaluation and choice. (To maintain a belief that certain persons are infalible can, nevertheless, present difficulties, especially in cultures characterized by democratization and secularization. Tendencies to overestimate the influence of the norms and underestimate the influence of the judge ... contribute to the transmission of authority from the norm system to the individual decisions. ... The use of ordeals and drawing of lots. Activity of judges can contribute to increased recognition of authority and to a gradual extention of the norm system to cover new types of conflict situations. It builds up the norm system and strengthens normative engagement.)
The MEDIATOR gains prestige sometimes just by promoting intermediate solutions, appearing moderate and reasonable, able to see the problem from different angles. He shows that the interests of one lies as close to his heart as those of the other. Sometimes he must display caution in pressing the parties too hard, as doing this shows impartiality. There is a demand for balancing impartiality and exertion of sufficient pressure.
Cases for JUDGES involve the parties resistence to compromising on questions of rights or truth. The presence of a third party may make the parties even more set in asserting their rights. The possibility of judging in a dispute presupposes that the norms are considered relevant to the solution. The normative frame of reference doesn't have to be the same (or even exist) for both parties (what for one party may be a judgement may for another be an arbitrary command). A judgement might not be complied with. Judgement as a method of resolution is more suitable the greater the possibliity the judgement will be lived up to. This sometimes depends on if the judgement requires a great sacrifice for one or both parties. Whether parties submit to a judgement may be due in part to norms and in part to the authority of the judge. Parties may fear punishment by people or gods. Parties may see a benefit in being seen as having a reputation for law-abidance, or the game might be more fun if the rules are followed. Generally, the parties must be bound or forced to adhere, so the judge is equipped with authority. The power can reside with the judge, with someone he represents (eg the state) or with others who are interested in the decision being respected (eg the winning party or his relatives or friends). Control can come from physical or military strength, control of resources on which the parties are dependent, powers of sorcerty, etc. There is a question of relative strength of the parties and the authority. ... Sometimes it is extremely doubtful about who is right.
Cases for MEDIATORS are best those where both parties are interested in having the conflict resolved, and the stronger this is, the more they are motivated to bring the conflict before a third party. The more emphasis parties place on the normative aspects of a conflict, the harder the task of a mediator becomes. In international conflicts, there is no superior instance which is powerful enough to force a powerful state to obedience, and courts can hardly be effective organs for the resolution where substantial interests are at stake.
The conlicts BETWEEEN the two types of third party intervention make it difficult to combine the two roles in a satisfactory way. To use one method (and then the other after) may place hindrances in the way of the other: It may undermine confidence in impartiality, may weaken the normative basis for a later judgement, may reduce the willingness to compromise by first making a judgement.