I joined JAMS in January 2022, after 25 years as a judge on the Massachusetts Superior Court, including the final six-and-a-half years as chief judge. The transition has been smooth thanks to the excellent training, mentoring and support JAMS provides. Looking back after a year, I offer these four observations, which I believe reflect the cornerstones of resolving disputes.
Listening and Allowing Parties to Share Their Stories
First and foremost: People want and need to be heard. That’s no surprise. I saw it as a judge and as a judicial manager, and I knew it as a lawyer before that. Perhaps less obvious is that the same need applies to everyone: individuals and institutions, employees and employers, financial professionals, insurance executives, leaders of entities of every kind, large and small. No matter what the dispute involves, parties need to tell their stories, express their perspectives and know that they have been heard and understood. Only then can they begin to consider the other side’s perspective.
As a mediator, I can take the time to listen to each party more than I ever could as a judge. My first meeting with each side in a mediation is often long. I listen while the party or lawyer explains what happened, how that party experienced it and what is important to that side in seeking resolution. I ask a lot of questions to fill in details and make sure I fully understand. This part of the mediation process can be slow, but the time is well spent because a party who feels fully heard is ready to listen. Once that initial discussion has occurred, I can begin to probe the legal and factual theories and help the party see the risks and costs of litigation and the benefits of resolution.
Gathering the Facts
Second, mediation is most likely to succeed when the parties and their counsel have enough information to evaluate their positions, but before they have invested so much in litigation that they see little savings in settlement. A mediation held too late may still achieve settlement, but it comes with costs that could have been avoided. A mediation held too early may put pressure on counsel to recommend a settlement that is unwarranted. No attorney wants to do that. Mediation can have benefits at that stage, such as helping each party consider risks and benefits and identify the contours of a potential resolution, but it is less likely to achieve settlement than a more timely effort.
Deciding When to Settle
Third, parties want to resolve their disputes. However much confidence they may have in their cases and their lawyers, few parties truly want to litigate to the end. During my tenure as chief judge of the superior court, data indicated that about 2% of civil cases concluded with a jury verdict. Of course, some case types do not involve jury trials, and some cases end with judicial findings or rulings, but the overwhelming majority of cases settle. The question is when they settle—whether before or after the parties have devoted large amounts of time, emotion and money to litigation. As a neutral, my goal is to help them settle at the right time and in a manner that each party believes is fair and reasonable in light of the risks and benefits of the litigation process.
Fourth, one of the greatest rewards of mediation from the point of view of the neutral is being able to interact with the many excellent attorneys who participate in the process. Judges obviously must keep a distance from attorneys, and I did, but I always found that frustrating when I was on the bench. As a mediator, I am liberated from that constraint, and I am enjoying this new freedom very much.
My first year as a JAMS neutral was a source of personal and professional satisfaction and fulfillment. I look forward to many more years of helping parties resolve their matters.
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