An article in this week’s Massachusetts Lawyer’s Weekly asks, “Retiring judges have always flocked to ADR. But do they make the best neutrals?” While judges may make great arbitrators — a role which is essentially judging in a private forum — whether they make good mediators is a whole other story.
ADR legend Frank Sander, interviewed for the article, had the following observations:
“Arbitration is private judging, so I think it is very natural that judges would want to become arbitrators, and they generally do a good job,” says Frank E. Sander, a Harvard Law School professor who is considered a pioneer of ADR for his work studying the topic over the past three decades.
But mediation is a very different process, and Sander questions whether judges can step down from the bench and instantly be “competent [as] mediators without further training.”
“True mediation — and I don’t mean settlement activity by judges — is a complex process that requires very different qualities from judging because you’re looking for an accommodative resolution,” he says. “You’re not assessing fault; you’re trying to find a mutually acceptable resolution.”
If a lawyer is looking for a competent mediator, he should not assume that a judge is that person, maintains Sander. In fact, he says, “you should almost assume that a judge wouldn’t be good, though there are clear exceptions to that. … Mediation is a future-oriented process, and court and litigation are past-oriented processes.”
My friend Geoff Sharp, a New Zealand barrister and mediator, weighed in on this issue a year or so ago with “Great on paper, crap at the table“. Geoff linked to an article by mediator Jeff Kichaven, who recounts his experience at the 2006 American Bar Association Section on Dispute Resolution conference with a general counsel who didn’t seem to appreciate the difference between mediators and judges. Kichaven distinguishes the role of the judge from that of the mediator:
Critically, the skills of the professional mediator are completely different than the skills of a judge. The job of the judge is to judge others. The skills of a judge serve a system where juries of strangers follow preset rules and make decisions that are supposed to be consistent and predictable. Judges, therefore, master rules of evidence to restrict conversation and help juries reach these consistent, predictable results. Hearsay, relevance, opinion—these and other limiting rules focus the jury on legally-germane issues and consistent results. Skilled application of these rules is necessary for the professional judge.
Mediators are unshackled from that system. The job of the mediator is not to judge at all. The mediator’s job is to stay curious and leave decision-making to the parties themselves, based on their own standards. Results are individual, spontaneous, and sometimes quite unpredictable. So mediators and judges direct conversations differently. Good mediation technique helps parties gather and exchange whatever information is important to them. That information can address the emotional, financial, and other barriers to settlement. It can go far beyond the “relevant” and “admissible.” So, skill in applying the rules of evidence is not only unnecessary, it can be destructive. A different skill in guiding communication is required.
Kichaven then adds,
Being a good mediator, therefore, has very little to do with having been a good judge. Frankly, it also has very little to do with having been a good lawyer. Just as there are a lot of former judges who are lousy mediators, a lot of former lawyers stink at it too. Additionally, there are excellent mediators who never even went to law school, much less served on the bench. The quality of a mediator depends on the ability to take the litigating lawyers’ own evaluations of cases and test whether, in the eyes of the clients, those evaluations make sense logically, feel right emotionally, and seem doable practically. When those tests are met, cases will settle.
Some former judges have taken the training, gained the experience, and joined the mediation profession. Many others rest on their laurels, on the “weight of the robe” and the “force of the gavel,” and cannot go beyond the raw evaluations that good litigators already know. If all you are looking for is the ability to call back to a boss at the home office and say, “Judge X told us the case is worth Y dollars,” maybe you don’t need a professional mediator. But sophisticated users are left flat by this two-dimensional approach.
As someone who has trained a number of judges over the years to be mediators, I couldn’t agree more with both Sander and Kichaven. Just because you were a judge does not mean you’re going to be a great mediator.
Judges, far more so than others, struggle in mediation trainings to grasp the concepts and put a mediator’s skills into practice. That’s not surprising. With a lifetime of experience judging — and being good at it, too — it’s difficult for them to assume a wholly new and unfamiliar role.
Can a judge be a good mediator? With training, mentoring, talent, and aptitude, the answer is yes. But without training? No way. But this is true of anyone, not just judges. No one — and I mean no one — is automatically qualified to be a mediator by virtue of their profession of origin.
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