The Spring 2012 issue of the ABA Journal of Litigation interviewed two federal Judges, Judge Dan Polster of the Northern District of Ohio and Magistrate Judge Jeremiah J. McCarthy of the Western District of New York, regarding their mediation philosophies. Id., Judicial Mediation: Two Judges' Philosophies. Ultimately, they both believe--and I think most decision
makers would agree--that parties and the judicial system are almost always better off with voluntary settlement, so much so though that "even aggressive judicial settlement efforts" may be warranted, although caution is always required.
Judge McCarthy observes that because "each side is always confident of th[e] facts" judges and juries "typically face two widely divergent views and recollections of what exactly happened." Although it is the judge or jury's duty to sort out the facts, litigation is a "crude instrument" for doing that, since often all that is decided is who is at fault and/or "who is going to get some money." Usually, though, the facts and the underlying relationship between the parties are more nuanced, and simply apportioning fault does not meet their needs.
For instance, often they are in some kind of business relationship and need that relationship "unwound." Or their interests might be better served by a "creative" settlement that addresses options that cannot be considered by a judge or jury.
Judge Polster emphasizes that timing is crucial. Like in the tale of Goldilocks, settlement efforts cannot be too soon or too late. Additionally, they are often ongoing and evolving, as the parties investigate and obtain more information/insight. Because of timing sensitivities, Judge Polster sees the trial judge as being in the best position to take the case's pulse and move the parties and counsel along to a resolution.
Judge McCarthy does not necessarily disagree but recalls his own concerns as a practicing attorney that a decision maker heavily involved in pressing for settlement might be unable to set aside--at the hearing--what was said in settlement conference. He urges it is "critically important that, if the parties do not want the trial judge to handle mediation because that judge is going to be deciding the substantive issues, then the judge should refer it to someone else." Judge Polster echos this same theme as well.
Ultimately, for Judge Polster, his involvement in settlement or mediation is appropriate because it works. Litigators can spend a "staggering number of hours and dollars" on litigation but the view is that could be short circuited, and the matter resolved, "if the judge had just spent an hour or two" with them. Why? He answers: "lo and behold, ... people listen to us ... [I]t's not because we are smarter or know more that the lawyers in the case, but there is something about wearing the robe that creates an aura of credibility."
This may well factor into the often made observation from the more general mediator community that even the "most hated judge" will be selected by the parties to serve as mediator after he or she retires. But, lest I start a fire storm among non-judge or non-attorney mediators, Judge Polster equally emphasizes the power that comes from having the judge's undivided attention, and in a setting in which the clients are active participants and the stars--rather than being relegated to sitting silently on the side lines in court.
Judge McCarthy also focuses on the dreaded "compromise" aspect that drives many professional mediators bananas. In his view "a perfect settlement is one in which both sides are somewhat unhappy. That means hey either haven't gotten everything they sought or they've given more than they wanted to, but that's what makes settlements. There has to be shared pain, real compromise on both sides."
In many ways, this view is antithetical to facilitative or transformative
mediation models practices by many professional mediators. However, I agree with his elaboration that, "The appelate process takes a long time. It's far preferable, I think, to get a result you can take home now." In mediation of civil suits, the stakes and interests are quite different, and mediators must be pragmatic enough to recognize that mediation theories may not always jive with the parties' needs. Many parties to litigation have expressed to me that they just want a settlement they can live with, so they can get on with living their lives and pursuing their businesses. In other words, they aren't looking to improve their relations or transform their understanding of conflict.
On several issues, however, these two federal judges and every professional mediator I know are in full agreement: that we "owe it to the parties to have done [our] homework before [we] start that session;" that "there's a lot of work that goes into a successful mediation;" that we should "be flexible" and "always looking for things other than money that are in play or can be put into play;" and "a tough mediation is a gut-wrenching experience."
If
you are interested in arbitration or mediation, please contact Pilar
Vaile, P.C. at (505)
247-0802 or info@pilarvailepc.com.
