This chapter discusses JDR's use of precedent and its occasional role in shaping an agreement, rather than providing a go-to standard as in conventional litigation. In general, we believe attorneys over-rely on precedent to justify the outcome of JDRs and in doing so, miss the entire point of getting parties together to settle their lawsuit.

History of Backing Away from Precedent

Why should JDR judges, given their legal training, ever seek to free themselves from their normal reliance on precedent? Legal precedents generally do not help to resolve judicial mediations. There is a long history supporting this view.

Modern-day arbitration can provide the best of both worlds: it allows one to remain out of the courts and to not be bound by judicial precedents, especially when the benefits of court intervention are not guaranteed. Arbitration has to be free from stare decisis because of the interests of the involved parties (American Arbitration Association 2003). In other words, reconciling the interests of the involved parties does not depend on legal warrants or entitlements, and thus there is no need for a judge or arbitrator to write a decision wrapped around legal principles, constricted by earlier court precedents. Instead, the resolution of lawsuits depends on the discovery of interests underscored by the facts of the case. This requires all parties to be open-minded about creating solutions to resolve their personal conflicts, instead of asking a judge to decide their lawsuit and provide written reasons that become a legal precedent for future use by courts and lawyers. A trained JDR judge does not use his or her juridical position to determine who is right or wrong; rather, they use it to help the parties resolve their differences in a manner consistent with procedural and substantive fairness—and that is justice (see Chapter 8). It is therefore in the interests of the parties in JDR to be open about the details of their dispute and work with the other side to invent a way of maximizing joint gains, and not be bound by what may or may not have been decided in published court cases in the past.