My transition from full-time judging to alternative dispute resolution has been filled with interesting challenges. While I continue to occasionally serve as a senior judge, I have welcomed the shift of focus from trial judge to an arbitrator and mediator of civil and domestic disputes.
By definition, judges are expected to hear and weigh the evidence presented in court and often make the final decisions in cases on an almost daily basis. For that reason, judges are generally considered to make excellent arbitrators. The roles are nearly identical. The transition from judging to mediation, however, is far more challenging. While every judge’s journey from the bench to the mediation conference table is unique, the purpose of this article is to recount my own personal observations of the transition.
I began my ADR training with a determination to learn, adapt and adjust in order to become an effective mediator. As the training continued, I could not help but internally compare the two roles, and paid very close attention to the similarities and differences. I found that many of the skills acquired as a judge actually dovetail perfectly into the skills necessary to be a successful neutral. Although judges and mediators both must listen carefully to information provided by attorneys and their clients, I quickly learned that they listen for very different reasons. Instead of listening to understand the issues and render a decision as a judge, mediators listen in order to understand, reframe and facilitate positive communication so that the parties themselves may make their own decisions. Overall, however, there are actually many more similarities between the positions than there are differences, as the same skills and qualities often apply to both.
The best judges are those that are creative on the bench within the confines of the law. They work with the lawyers to help craft solutions and settle cases. These judges are good communicators. Many times, there is a hidden issue driving the controversy beyond what is presented. Judges must learn to clarify the underlying issues, look for the real motives behind the conflict and ask the right questions. In addition, most judges are comfortable working with people in crisis and in unusual and emotional situations, and have experience dealing with people in all conditions and under all circumstances. Further, judges are intimately familiar with the court process and have extensive proficiency working with opposing lawyers advocating divergent positions. While the end goal may be different, the development of a skilled mediator requires the mastery of precisely these same skills and abilities.
Like a successful neutral, it is important to remember that judges must always keep an open mind to both sides. While the attorneys zealously advocate for their clients, it is crucial that judges remain neutral and objective in evaluating the evidence presented. Given a judge’s ethical duty to listen carefully and weigh the evidence in an unbiased manner, the transition from neutral judge to neutral mediator is fairly seamless, particularly with regard to impartiality. However, the mediator with prior judicial experience must recognize from the beginning that he or she is not acting as a judge, and work diligently through training to master the subtle yet critical change of mindset that applies to the principles of mediation.
There are myriad ways in which the experience of serving as a judge can prove beneficial during a mediation. Judges are in a unique position to discuss the benefits of mediation and the difficulties people may face at trial. Judges eminently understand and are uniquely qualified to convey the additional expense of going to court, both financially and emotionally. They understand that a settlement has better, long-lasting results when the parties work together toward a negotiated agreement instead of fighting at trial. In domestic mediations, for example, a child is far more likely to successfully cope with such a major life change if his or her divorced parents are able to effectively communicate and work together peacefully through mediation. Partners in a construction company have a much better chance of resolving their conflicts amicably and continue their working relationship in the future through mediation rather than litigation. Neighbors fighting over a property line have a better chance of compromising and resolving angry feelings through the mediation process. Even in difficult wrongful death and medical malpractice cases, the result is always more positive if the parties are able to work through the issues themselves, instead of going through the more divisive court process. Judges can describe literally thousands of similar examples to help educate and illuminate even the most obstinate of clients.
I have already experienced several occasions in which attorneys have referenced the added authority of my position as a judge to help convince a difficult client to be open-minded to rational and reasonable suggestions. In fact, it is not unusual for both attorneys to agree on the value of a particular case, but one or more of their clients is taking a very intractable position. The boost of authority that comes from getting input from an actual or former judge can be helpful and effectual in these situations. While it is obviously important that former judges refrain from going beyond the role as a mediator, most judges are happy to share their perspective when asked to do so by an attorney.
Overall, the experience of a judge can be an asset to any attorney seeking a successful mediation, particularly in difficult and complex cases. No matter how solid the case and well-prepared the attorney, it still ultimately comes down to the client’s decision. Just as Hollywood is rife with stories of well-written scripts that were ruined by directors who were unable to effectively frame and convey the story to the audience, even a perfect legal case may not successfully settle if the mediator is unable to effectively communicate and reframe the issues and interests of the parties. Mediators are unchained from the limiting rules of the courtroom, but the skills and experience learned in that courtroom can make all the difference.