Malone & Nelson
Why a Judge Can Be a Good Mediator
Going from the Bench to the Bar is an adjustment. Becoming a mediator is a transition as well.
Like transitioning back to practice, undertaking mediations requires dedicated learning, tedious preparation, and the honing of certain skills. Being a judge doesn’t make you a great mediator, just like being a great lawyer doesn’t make you a good judge.
But a mediator who takes the time to learn the art of negotiations and mediations, to actually read the material that the parties provide, and to develop the skills necessary to be an effective mediator has a great deal to offer mediating parties.
Nothing can replace the view from the bench.Until you have been there, you simply cannot have that perspective. Having a judge’s perspective can be very advantageous to parties negotiating a resolution of a matter that will be decided in court if they cannot agree.
A former trial judge can give an informed opinion on how a judge might view certain key procedural matters, evidentiary challenges, and even substantive rulings. And an experienced trial judge has the advantage of having been a front-seat spectator to more jury trials than all but a few trial lawyers.
A former appellate judge has many unique insights into litigation, and not just if the case is likely to wind up in an appellate court.While he has had the rare opportunity to actually participate in those deciding caucuses, those internal debates, he has also had unparalleled access to countless trial records, benefitting from seeing even more trials than he actually witnessed. His experience with appellate procedure and substantive law is unmatched by anyone who has not been there.
The keys to being an effective mediator are knowing when and how to put all of your experiences into play during a mediation. You must allow strategic lawyers to execute their game plan and look for opportunities to facilitate it. Whether it’s managing the expectations of clients on potential verdicts, or witness credibility and substantive rulings, your perspective, when properly used, can be priceless. You can also add value by giving the lawyers honest feedback and a perspective on their case that they cannot get elsewhere. Your role is facilitative and evaluative.
But, being a mediator is not the same as being a judge. Not only do people not laugh at all of your jokes, nor stand up when you walk in the room, a mediator shouldn’t be deciding anything. A mediator shouldn’t form an opinion about a case and its value from the beginning. That’s great if it is consistent with yours, but what about when it isn’t?
I enjoyed my time on the trial bench and on the Alabama Supreme Court, but now I enjoy mediation. Helping parties work through negotiations to a solution that they decide, that they can live with, that is best for them, that is my goal and my charge, as I see it.
I look forward to working with you.