JAMS ADR Insights
From Bench to Mediator—Some Observations about the Transition
Published October 13, 2014
As the 2014 Mediation Week kicks off, I wanted to share my perspective about transitioning from a judge to a neutral. So far this experience has been incredibly rewarding and very interesting. I thought my clients would enjoy my observations and help them to understand my process.
First of all, a reality that I had studied, and soon encountered, is the intense emotions that cloud the negotiations and sometimes mask the true nature of the dispute. As a judge I had almost no exposure to the anxieties of the parties since trials are formal proceedings. Interactions were almost exclusively with the attorneys. Mediators experience all the tensions and soul searching inherent in the process of finding compromise. The initial joint session is often the first time that parties are able to verbalize the frustration, anger and hurt feelings that have been bottled up for years. Emotions cannot be ignored or downplayed. Unless the parties can vent and come to grips with these strong feelings against the other side and the nightmare that they have been living through, the mediation will be at risk.
The physical role played by a judge and mediator is also vastly different. During an ongoing trial, although I would take notes, make legal rulings, and certainly oversee everything, it was the attorneys that ran the show. They decided on their tactics, selected the jury, made openings and closings, and determined which witnesses to call and the content of their direct and cross examinations. Now, using “shuttle diplomacy” between the opposing parties, a mediator remains active to foster constructive dialogue, present options and proposals, work to overcome impasses and find common ground to facilitate settlement.
Another transition I faced as a new mediator was my affirmative obligation not to reveal confidential information I learned from one side. As a judge I tried to keep both sides in the information loop in order to insure a fair trial. In a mediation, each party decides what information it wants to disclose. It is common for a mediator to learn facts from an attorney or during a private caucus that could dramatically affect the bargaining dynamics of the parties. But if a party asks the mediator not to divulge this information to the opposing side, the mediator is ethically bound to follow that request. Confidentiality is not only necessary but essential since the entire process would break down if parties did not trust the mediator.
Another significant difference I experienced in mediating cases was being comfortable with ex-parte communications outside the presence of the other attorney. When I was a judge, I would not speak privately about a case with one of the attorneys because of my obligation to be fair to both sides. In mediations, however, private conversations are expected. They occur in memoranda, on the telephone, in the corridors, and in individual caucuses. These private communications are necessary. They are the surest way for the mediator to learn each side’s unvarnished view of the case and potential settlement avenues.
As a trial judge I watched hundreds of juries return verdicts that brought elation to one side, but sadness and devastation to the other. Mediation allows parties to voluntarily determine the outcome of their case. There is an ebb and a flow to it that is amazing to watch. The wonderful thing is that mediation really does work and the vast majority of cases do settle. It is such a rewarding experience to see a sense of relief come over the parties when they know that the nightmare is finally over and they can get back on with their lives.
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