“Pay no attention to the little man behind the curtain.” I was a trial judge for 20 years, the little man behind the curtain able to evoke great images of power through my (literally) elevated status and magnified voice. Not to mention the Darth Vader black robes. Oh ya, baby. I was it. Having spent the last seven years of my judicial career in a superior court civil independent calendar department, I had a front row seat to the human condition, and a good deal of authority to go with it. So, as I transitioned out of that role and into the ADR world of mediation, I made some interesting discoveries and some stark realizations. I wasn’t doing settlement conferences anymore. (Wow, Judge, you are perceptive). Hey, I heard that. Looking back on the world of settlement conferences and judicial hearings and forward on the world of mediation has convinced me that the house has truly dropped on my judicial career.
I lost my club: Parties coming to the settlement conference unprepared; attorneys, clients or adjusters acting in bad faith; players showing disrespect, lack of civility, all had an immediate and financially painful outcome. The Great Oz got to strut his stuff and display his indignation. And it was real. There is no greater advocate for civility and professionalism than me. For heaven’s sake, my clerk was given an award by the Consumer Attorneys for her civility and professionalism. We all practiced it in Department 28 and did not long tolerate those who practiced otherwise. Not the case in mediation. For one thing, the parties have spent no small amount of money to ask me to assist in the resolution of their case. I must now look into the teeth of grand standing and huffing and hardball tactics, and let them wash over me, knowledge to be used in the next phase of our discussions. Personalities, significantly diffused in court, now run free and need to be channeled by a good mediator. And if that mediator is a former judge, the Great Oz needs to be laid to rest and a new image closer to the Scarecrow needs to emerge. (“If I only had a brain.”) Hey, I heard that! On the bench, as an indignant judge, I was quick to stop the process and meat out retribution. As a mediator, stopping the process is just a step toward continued dialogue and is used at certain times in a mediation in order to catch our breath and continue towards resolution. The easy way out, my club, is gone. Now I must be ready to don one of many hats depending on the situation, always aware of why I was asked to be there and what my goals are in this mediation. Dealing with difficult personalities has been elevated to an art form, no longer easily managed with a sanction or a stern chastisement.
Say what? There is a definite chilling effect of the courtroom and the judge’s chambers. I liked that. The players were on my personal turf and great deference was shown. Not that the players in mediation treat me like dog meat, but there is a definite familiarity that comes with being a mediator who used to be a judge. And that should come as no surprise. In court we are talking about the third branch of government. In private mediation we have a business arrangement. They are paying me to perform a service. They get to more closely tell it like they think it is. In court it was the dreaded: “With all due respect.” In mediation the attorney looks me straight in the eye and says “I don’t buy it.” My role as a mediator is to see what the players will buy. At the hint of a, “With all due respect,” I would halt the proceedings and gently chastise the attorney for ever using that phrase (judge’s translation: “Judge, you must be crazy. Your appointment must have been purely political”). As a mediator I hear “with all due respect,” “that dog will not hunt,” or “you’ve got to be kidding,” and I just use that response as a piece of information to be put into the hopper to help me decide the next move. “Keep ’em movin’, movin’, movin’, though they’re disapprovin’ . . . ” That’s my new mantra. How can I keep the players engaged and moving forward? Language takes on a whole new meaning from settlement conferences to mediation. Language that evoked consternation in court now creates new challenges and opportunities for resolution.
One trick pony. Clearly, mediation is a separate and distinct profession from being a judge. Nothing brings that point home more than the many and varied tools that a mediator must have at the ready to meet all the different situations that will be encountered in mediation. The one major similarity between my settlement conferences and mediation is the time I take to get to know the parties and the positions each is taking. A major difference is that in settlement conferences I resorted to one tried and true tool. When I felt I had earned their trust, I made a proposal for settlement, asked each side to privately give me a yes or a no, and the case settled with all yes’s and did not with one or more no’s. That tool compares with the “mediator’s proposal,” but that particular tool must be used with caution. Used too early or too late it can spell disaster. Often, it should not be used at all. It is but one of many different approaches. Indeed, the parties can err by relying on the “former judge” to give his or her opinion. The temptation is great on both sides to have the retired judge just state what the case is worth. That tool certainly can settle cases, but must be held back as a very carefully crafted device of the mediator. How I came to the end in a settlement conference always followed I-5 straight through to Seattle, no deviations, no side trips. Getting to a resolution in mediation is one of the biggest changes I have observed from my former life. I better be prepared to take a quick flight to Cairo if I hope to eventually end up in Boston.
Take my wife, please. Humor is a spice that must be carefully sprinkled during one’s judicial career. Many a judge has found himself or herself staring down the barrel of the Commission on Judicial Performance because of the inappropriate use of humor. But I love the use of humor and hope that over my 20 years most players would agree that I used it with caution. Not that all bets are off in mediation, but I find that I am much more comfortable resorting to humor than I ever was on the bench. Kidding an attorney, even a client, and certainly myself are again tools that can be effectively employed to diffuse a situation or move the conversation in a new direction. Even a mediator must be careful in the use of humor, and there is never a place for humor based on things like race, creed, sex, or sexual orientation. Use of humor is another art form that I respect and find myself employing with some regularity, letting it flow with more ease than I did as a judge. I find this liberating, but appreciate that there is a time and place for everything, and if I step over the line at mediation, I should not be surprised to hear “Now that was stupid and offensive.” Ah, cowardly lion, where did my roar go?
My transition from sitting judge to sitting, standing, walking mediator is still a work in progress. ADR looks a lot different from within the profession than it did from my former perch. Mediation is not an adjunct to judging, no more than teaching is an adjunct to being a lawyer. These are equal but separate professions, each with their own unique set of skills. But versatility is perhaps the biggest skill that must be dusted off and employed by the judge turned mediator. Get that oil can ready. The tin man is going to have to do a lot more dancing!