Making the Transition from Judge to Mediator
The following advice is from Success as a Mediator for Dummies which will be available in book stores and in paperback at Amazon.com on April 10. But you can pick up a copy at Amazon for your kindle today!
Transitioning from judge to mediator
Not so long ago, retired judges had a corner on the the alternative dispute resolution (ADR) market, and for good reason — they have significantly more trial experience than most lawyers. No one understands the way jurors think better than a trial judge. She has heard thousands of lawyers question thousands of witnesses and has seen hundreds of juries return hundreds of verdicts.
A retired judge also has an aura of authority that no attorney can match. Clients who’ve been waiting for months or years to be heard often want the person doing the listening to be a judge — the authority figure that clients anticipate would be the final arbiter of their dispute.
However, judges aren’t always the best fit as mediators. To successfully transition from judge to mediator, you must be able to do the following:
* Converse, not command: As judge, you can order parties what to do. As mediator, you must take an interest in areas of the parties’ dispute you’d consider “irrelevant” to its resolution under the law. You also have to persuade and cajole. More important, you must listen to a disputant express feelings and help that party move from fear or anger to a more rational and pragmatic state of mind. You can’t hold a disrespectful party in contempt.
You must bear the insults of people no longer able to hold their tongues or control their tempers. If you can’t let down your hair, shed your robe, climb down from the dais, and mix it up with the rabble, you’re not well-suited to be a mediator and will soon leave the profession for a calmer retirement.
* Negotiate, not merely evaluate: A purely evaluative mediator merely tells the parties which side is likely to prevail and for how much if the case goes to trial. That’s not enough. Mediators must engage the parties in the process of mediation so both parties feel satisfied at the end.
It’s the great mistake of too many mediators to assume the parties don’t know the weaknesses and strengths of their own case as well or better than any mediator does. Raise one argument and five others will rise up to take its place. Mediators are not in the business of overwhelming the will of the parties, but finding out what motivates that will and then addressing ways to satisfy it.
You must be able to get under the parties’ positions — their opinions about the rectitude of their claim — to address the interests they’re trying to serve, which may appear to be but aren’t always monetary.
Don’t expect to announce your retirement as judge and immediately land a spot on a private ADR panel. Most private ADR rosters are beginning to list as many attorney-mediators as retired judges.
Furthermore, these panels expect their judge-mediators to market themselves by joining bar associations and speaking at their events, sending out e-mail newsletters, and networking at industry and legal conferences as well as in electronic social networks such as LinkedIn, Twitter and Facebook.