The Importance of Choosing a Professional Mediator

During my Monday sessions at a local Magistrates (read:Small Claims) Court, I must often stop the proceedings to explain to the pro se litigants that I am not a judge.  This despite the fact that this is set forth in the guidelines each party must read and sign, and the fact that I say this very explicitly in my opening.  I take this with a grain of salt as most people are unfamiliar with the legal process, save for what they see on various legal themed TV shows.

I would never expect to have this issue with attorneys. But, that was the experience of mediator Jeff Kichavin. In his wonderful commentary Professional Mediator: A Distinction that Makes A Difference, Jeff relates an experience at an ABA function where a high level in-house counsel was asked what qualities he looked for in a mediator repeatedly stated that he looked for a “judge that” has this quality or that skill.

In response to this apparent misconception that former judges uniformly make excellent mediators, Jeff explains “the benefits of using true professional mediators as opposed to people who merely used to work as judges.”  (N.B. I think that former judges can make excellent mediators, if properly re-trained to think and act like one, not like a jurist.)

Jeff makes the point that

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.

Now, I know what some of you are thinking.  I hear it all the time: “I don’t want an errand boy/girl.  I want someone who can help get the case settled.”  A good mediator, a skilled mediator, does just that.  As Jeff states,

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.

A former judge, who acts and thinks like a judge, doesn’t help the parties make an informed decision, he tells them what he thinks that decision should be.   Speaking from experience, a client who takes a settlement based primarily on the valuation of the case by a third party will not be a happy client.  But a client who works through the issues, processes the information, assesses risks and benefits and comes to their own conclusion, will be.

Again, judges can be good mediators,  but you shouldn’t let that be the primary consideration the next time you choose a mediator.

A hat tip to Diane Levin.