From Judge to Mediator and Arbitrator

ADR Mediación2018 | Marzo 21
After 36 years as a state court trial and appellate judge, including eight in the commercial division and 21 managing mass torts, I anticipated a seamless transition to becoming a neutral. After all, I had tried, conferenced and settled thousands of cases. To be sure, I realized I would lack the hammer of the imminent trial alternative, so I took several courses in mediation, some of which involved role playing. But ultimately I thought it would just come naturally. After three years as a neutral, I can report that while my judicial skills prepared me in some ways, they presented obstacles in other ways

As one experienced mediator said, “[I] am facilitative until about 4 p.m., and then I become evaluative.” As a former judge, it is tempting to be evaluative early on and raise all the risks of litigation, but that is not how mediation works. The parties must actively participate in the process before the mediator uses evaluative techniques to bring them to what we call “Yes.”

From Judge to Mediator and Arbitrator | New York Law Journal


Un pensamiento en “From Judge to Mediator and Arbitrator

  1. Where and how to fit? This is a wonderful self-analysis regarding the obstacles a judge had to overcome to become an effective neutral. Her comment about a natural tendency to give herself to the dark side of mediation –evaluative mediation—too early on is spot on. Her account is well worth a read, as it is as real as it gets.

    One thing she left out –probably unconsciously–and which I believe led her to write this piece the way she wrote it: No backlog of cases suffocating her, her time entirely devoted to the case before her, whether through mediation or arbitration. Therein probably lies her reckoning. I must say respectfully: “Atta gal!”

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