In April 2006, a remarkable thing happened at the Spring Conference of the American Bar Association's Section of Dispute Resolution in Atlanta. A distinguished lawyer unwittingly proved that the mediation profession has a spectacular future.
It was during a workshop on corporate America's expectations of professional mediators. The moderator asked a panelist, the general counsel of a household-name company, what he looked for in a mediator. He responded that he wanted "a judge" with this attribute, "a judge" with that strength, "a judge" who lacked weakness. His answer went on for minutes, but he never mentioned the professional mediators who were the subject of the question.
I raised my hand and asked this general counsel, as innocently as I could, whether the concept of "professional mediator" existed in his mind and, if so, how he distinguished between a "professional mediator" and "someone who used to be a judge." The general counsel answered, after a long stare and a furrowed brow, slowly and honestly, "I don't know. I never thought about it."
At first, I felt angry. We professional mediators have worked so hard to establish mediation as an independent profession! Despite our efforts, this general counsel, highly sophisticated in so many other respects, was clueless. But then I was pleased. If lawyers even at that level have no clue about the benefits of using true professional mediators as opposed to people who merely used to work as judges, then our profession, already vital and strong, still has lots of room to grow.
Mediation versus Arbitration
The initial confusion between professional mediators and people who used to be judges is simple to explain. Mediation is often mentioned in the same breath as arbitration under the umbrella term, alternative dispute resolution (ADR). Arbitration is a lot like judging. Since judges are generally good at arbitrating, many lawyers assume that they must be good at mediating as well.
But that is not so. The principal "skill" that former judges bring to the mediation table has limited utility at best. Former judges are supposed to be able to "value the case." Nobody, though, is better able to "value the case" than the lawyers handling it, who have lived with it for months or years. So a mediator's ability to assess "value" is superfluous. With one exception relating to client relations, that is critical to the professional mediator but generally lost on former judges. Because, to paraphrase Justice Frankfurter's famous expression from SEC v. Chenery Corp., 318 U.S. 80, 85 (1943), to say that a case has a "value" only begins the analysis.
To your typical former judge, the ability to "value" the case is the alpha and the omega of his service. Dialogue between the parties is a charade. The Los Angeles Daily Journal's April 17, 2006, profile of a distinguished former state court judge presents the standard approach: "I try to get all the movement I can before I jump in and say how much I feel the case is worth."
This man was an excellent judge. But his approach is not exactly the apotheosis of mediation technique. That's because the lawyers already know everything that these judges can tell them.
I recently asked one of Los Angeles' most well-respected litigators whether, in a mediation, a retired judge had ever told him about a weakness or value in his case of which he was not already aware. A long pause, and then, "Never." Why, then, pay anyone big bucks to tell you things you already know? Another long pause, followed by, "It is sometimes a matter of emphasis. More often, it helps me explain things to my client."
This litigator stated obvious truths. In most cases, the range of highly-probable outcomes is pretty narrow. The lawyers can generally check their self-serving biases well enough to agree on that range, and the mediator generally sees it too. Yet clients often have a hard time getting it, even the senior executives of major businesses represented by the senior litigator to whom I posed these questions.
Here is where the skill of the professional mediator takes over. Former judges describe weaknesses, declare "case value," try to impose that value on the parties, and draw their service to an end. But for the professional mediator, this is where the real work begins. Once "case value" is articulated, the professional mediator helps lawyers bring clients to higher levels of understanding and clearer points of decision than the lawyer was able to achieve alone.
The Mediator's Skills
When cases come to a mediator, they are, by definition, at impasse. The parties may be stuck for reasons that are emotional (anger, ideology, high or low tolerance for risk), financial (need for cash, ability to tolerate defense costs or verdict exposure), or otherwise. Through skillful and subtle choreography of conversations, professional mediators help clients think about these barriers to settlement in new ways. Most all the time, and especially when clients come voluntarily, they move beyond these barriers, face up to their weaknesses and risks, and settle. Sometimes they move so far beyond these barriers that they make forward-looking deals. Occasionally they decide to bet against the odds and continue the fight. In any case, they understand what they are doing and why. They do not feel bullied. With this degree of control, clients feel greater satisfaction, not only with the outcome, but also with the process and the performance of their lawyers.
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.
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.
Sure, there are things that judges, lawyers, and others learn from their experiences that serve them well as mediators. To be effective as a mediator, your experience and training must enable you to engage in intelligent conversation about the "value" of the cases you mediate. Otherwise, the marketplace will pass you by. But necessary though that knowledge may be, it is not sufficient to perform professional mediation.
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.
The sophisticated litigator knows that mediation offers more. The professional mediator, whether formerly a judge, a lawyer or something else, manages the conversation to help the parties surmount the barriers to settlement, and reach a deal in a reasonable range which the parties were not able to accept without the mediator's intervention. Identifying that range, which the parties generally already know, is not enough.
Conclusion
So the ABA workshop in Atlanta ultimately leaves me with a smile. Legions of otherwise-sophisticated lawyers are not yet fully aware of the benefits of professional mediation, or how to distinguish the professionals truly available to provide those benefits. As professional mediators expand our efforts to educate our customers, the demand for—and satisfaction with—professional mediation can only flourish.
Dr. Mark Goulston participated in the development of many of the ideas expressed in this article.
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