You be the judge: do retiring justices make the best neutrals?

Judges as neutralsAn 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.

8 responses to “You be the judge: do retiring justices make the best neutrals?

  1. As a UK mediation trainer, I agree wholeheartedly with this article.

    I am reminded of a course I ran which was attended by a High Court judge. On the morning of the second day, I found him at a break sitting down with his hand to his forehead.

    “What’s the problem?” I asked.

    “No problem, Paul,” he replied, “it’s just that I’ve realised that I’ve got thirty years of experience to umlearn!”

    I smiled. “You’re getting it,” I said.

  2. A thoughtful post, Diane.
    Judges with mediation training can be excellent mediators. Some lawyers prefer judges who are still conducting settlement conferences (although they are called mediations). I think this is because lawyers are trained to evaluate cases and they are comfortable when the judge is evaluative.
    What this means is that we have a big challenge in undertaking to educate lawyers to facilitative, interest-based mediation which holds the greater promise of a more mutually satisfactory outcome.
    Professor Sander and Professor Stephen Goldberg at Northwestern University School of Law, teamed up last summer to write an article for “Litigation,” the magazine of the Litigation Section of the American Bar Association, entitled, “Selecting a Mediator: An Alternative (Sometimes) to a Former Judge.” It’s in Vol. 33, No. 4, and is available online if you are a member of the ABA Section on Litigation.

  3. Diane;

    Max Bazerman has an article from 2004 in which he basically admits that the training of negotiation techniques has not given the student the ability to generalize or learn negotiation skills.

    For 20 years, PON has used role playing simulations to “train” negotiators. They now say it doesn’t work.

    Do you agree with Bazermans’ assessment?

  4. Diane Levin

    Paul, thanks for your comment. I chuckled when I read the story you recount. I’ve heard judges and lawyers as well say that, too. It’s really tough for highly skilled people who are good at what they’ve been doing for the past 20 or 30 years to be beginners at something. I have a lot of respect for the difficulties that judges and others confront when they learn to mediate. Thanks for reading and sharing your thoughts, Paul!

    Nancy, as always, thanks for your insights and for underscoring the challenge ahead for teaching interest-based, facilitative mediation. I’m grateful to you for pointing me to that article.

    Michael, thanks for stopping by again! I know that you sent me the link to this article recently. I did have a chance to download it and skim it, but I’m not prepared to debate Bazerman on the merits of his arguments. I’m going to bounce your question right back to you and ask you, What do you think? I’m guessing you’ve got some thoughts on that!

    However, this post concerns itself, at least in passing, not with the training of negotiators but with the training of mediators. Based on my experience training hundreds of people to mediate, I think that role play simulations are an effective way to teach people how to mediate. It’s by no means the only teaching tool that mediation trainers use, but it’s a useful and powerful one. There is of course no substitute for real-world experience, and it’s one reason why the co-mediation model is so effective as a pedagogical tool once students have completed training in mediation.

  5. Diane,

    I seriously doubt that role playing negotiation simulations are effective in locating integrative value. I have held this view for about 24 years, since first reviewing the training exercises at PON. Of course I am in a small minority on this.

    What I don’t know is whether solving the toy negotiations training exercises cited in the appendix in the Bazerman article leads to finding value in the real world. (And I don’t think much his analogical solutions – but that is a debate for another day.)

    But I am hopeful because solving these type of exercises explicitly require the participants to focus on what the other’s preference function is.

    Now in the real world, we don’t have ready made preference functions or relations.

    But I believe that training exercises which require us to think hard about the other player’s preference ordering and how to credibly signal our own ordering may lead to better real world negotiation. Could be wrong, though.

  6. Diane Levin

    Michael, thanks for answering my question. You make some interesting points here. Given your doubts about the value of negotiation simulations to teach students to find integrative value, I’d be curious to learn what thoughts you have about teaching methods that would prove more effective.

    I really appreciate your contributions to the conversation here, Michael. Speaking of value, thanks for adding some!

  7. Diane:

    1. I don’t think there is a one size fit all training. What would work in my legal field, franchise and distribution law, might not work elsewhere.

    2. Simulations do give participants a chance to find their mediation style or voice. Which is important. Just not as important as many think.

    On the other hand, simulations which can be scored and replayed do have high value. However, they are rare and the lessons learned may not be that important.

    3. But if you think, as many academics do, that the most important problem negotiators face is trying to understand the other person’s view without capitulating to it, then I would focus on teaching negotiation techniques which require individuals to coordinate their actions with minimal overt communication.

    Many of current integrative illusions, such as the get as much as you can game, cannot be replayed once you learn the trick.

    However, some simple coordination repeatable exercises can be found in Thomas Schellings’ Strategy and Conflict in his essay on bargaining.

    Here is one simple example. You pull up to a stop sign, another car does so at the same time. How do you avoid the you go, no you go, … , beneficial brinksmanship which takes place?

    Another one. You draw a card, unseen, from a standard deck. If it is an ace of spades, then if you can get the other player to buy it sight unseen, you will get $20, and that player will get $10. If it is not the ace of spades, you will get $10, but the other player gets nothing. But if you turn the card over, and reveal what it is, then you get nothing and the other player gets to take it or refuse it for nothing. You draw the ace of spades, how do you convince the other player that a rare event has taken place, so that both of you can benefit?

    I could go on, but the general idea should be clear.

    4. However, I do have some concern that these training techniques may select for only highly analytic types.

    5. I have a series of posts in my new blog on strategic thinking coming up which highlights some of these ideas, which I will pass on to your and your readers -with any luck by the end of next week.

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