A Plea for E.N.E.

One of the oldest maxims in writing is to never apologize for your work.  With that said, I do need to couch this article.  I stand by my premise 100%.  However, there are always exceptions to a rule.  One of my biggest influences in mediation is a former judge, and former Wisconsin Supreme Court Justice.  I am not saying that a judge cannot mediate, but that you need to go in with your eyes open.

Too often when litigators are choosing a mediator (or even worse when a sitting judge is ordering mediation at a scheduling conference) the conversation goes something like, “So, should we use Judge X or Judge Y?”  What does being a former judge necessarily have to do with being a mediator, let alone a good mediator?

As the late great comedian Mitch Hedberg said,

When you’re in Hollywood and you’re a comedian, everybody wants you to do things besides comedy. They say, “OK, you’re a stand-up comedian — can you act? Can you write? Write us a script?” . . .  It’s as though if I were a cook and I worked [] to become a good cook, they said, “All right, you’re a cook — can you farm?”

I am certainly not the first to recognize this disturbing trend. 

The State of Florida had such a problem with retired judges deciding that “a little extra retirement income would not be so bad” and hanging out their shingles as mediators that the State created one of the most comprehensive mediator licensing rubrics in the Nation.  Now you must show actual mediator training and a mediation practicum prior to content specific licensure, ensuring that these former judges are not merely former judges but also knowledgeable mediators.

Consider the following, albeit not perfect, analogy. Would you go in for open heart surgery – a surgery that could prolong your life for decades – with a staff of nurses who are skilled in only hospice care?  Surely not.  Judges are skilled in understanding the end product of litigation, the trial, just as hospice nurses are skilled at understanding the end of life.  Judges obviously do much more than just oversee trials – but the analogy stands in a limited fashion.

There are four possible reasons why an attorney would seek the services of a former judge mediator over other possible practitioners:

First, the attorney has failed to prepare the client properly for litigation.  The client was sold on the idea of litigating but did not actually understand the cost, the holes in his case, or has over-inflated his sense of entitlement (more on this in the second type).  This type of case preparation does little to instill confidence (as a mediator I end up spending most of my time in these cases trying to make the attorney not look bad) and probably ensures an unhappy, or non-repeat, customer.

Second, the attorney has failed to control the client and is looking for someone else to do that for him.  This happens, even to the best attorneys.  Clients start Googling this and that, find a few web resources, and decide that theirs is the case of the century.  At this point, there may be no chance of talking the client out of his purported million dollar jury verdict, no matter how many jury reporters they are shown.  Alternatively, the attorney may have failed to explain that the initial demand was not a real valuation for the case, but merely a starting point, and when the client read the demand letter, they started believing every word.  Now, in order not to make an unhappy, or non-repeat, customer, the attorney is looking for a mediator to tell the client that their case is not as good as the “McDonald’s coffee lady.”  In these, a former judge offers the reality-check you are seeking, but once the pie-in-the-sky is gone, what’s next?

In these first two instances, almost any attorney mediator (and many non-attorney mediators) can do this – and they may have additional skills and training that make them more ideal than a former judge at doing this.

The third potential cause of this situation, and my sense of optimism hopes this is the most common, is that the attorney is having trouble communicating with the other party and is looking for a neutral evaluator to give an opinion concerning the merits and/or value of a case, from which a negotiation can begin.  In this case, the attorney is not looking for a mediator.  He is seeking an early neutral evaluation, or possibly a non-binding arbitration, followed by mediation.

Fourth, is that the attorney has never seen another way of mediating cases.  Former judges are just who is used to mediate cases in their area.

Let me start here with number four.  Even if this is the case – and there are many areas of the country where this is the case – search out other mediators.  Having trained numerous mediators, including judges, attorneys, and non-attorneys, I can tell you that I have found excellent mediators in all three of these categories.  I have also found people in all three categories that I have found to be sorely lacking in mediation skills.  Skills in one specialty do not necessarily relate to another.

The third situation is harder.  You find yourself wanting the “forty years of experience” or the “twenty years on the bench” to tell both you and the other party what the case is worth.  That is commendable.  This is a legitimate process, but is not mediation.  It is called early neutral evaluation.  Another way of looking at early neutral evaluation is that it is like an informal, non-binding arbitration.

What happens at your typical mediation when your judge-mediator gives you an unfavorable “ruling” that is contrary to everything you know and understand about the law?  Are you going to spend the rest of the day mediating or are you going to cut bait and walk away?

Consider, rather than providing your mediation statements to Ms. Former Judge Mediator (which are really your first draft of either your summary judgment motion or your trial brief), instead you send the exact same thing to Ms. Former Judge Early Neutral Evaluator, who responds to both parties with a written evaluation.  The parties then take this written evaluation to a mediator.

The mediator can utilize this evaluation as “objective criteria” against which to compare and contrast offers made by the parties, without being wed to the decision or having any stake in the outcome. This allows the mediator to remain truly neutral. (Personal anecdote – for my first mediation in private practice I used one of the “usual mediators” in the area.  Based on our premediation statements, he came in with his number valuation on the case. His view was that my client owed $50,000.  My client was not willing to go higher than $5,000 at mediation.  Because the mediator offered his own opinion early on that the case was worth 10 times what we were offering, he could not continue assisting toward a resolution without losing face – therefore he was no longer neutral.  Ultimately the case went to trial, the plaintiff’s case was tossed on a motion for a directed verdict [on eight separate dispositive grounds], and the jury awarded my client $75,000 on her counterclaim.  The mediator’s lost neutrality possibly cost the other party at least $80,000 – plus attorneys’ fees.)

Worried about the cost of pursuing early neutral evaluation separately from mediation?  Ms. Former Judge Early Neutral Evaluator will likely charge you the same amount for her review of the case as she would have to prepare for mediation, plus some for the written decision, but the mediator (who may charge much less per hour if she is not a former member of the judiciary) can move directly into forming common ground and a possible resolution at mediation.

Ultimately, if you are commonly in situations 1, 2, or 4 above, your clients may be better served by utilizing a non-former judge mediator, or more generally a mediator who employs a purely evaluative process.  If you find yourself in situation 3, consider calling the service you are really seeking by its rightful title, early neutral evaluation, and explicitly discussing that goal with your client, your opponent, and the evaluator.

If you are having open heart surgery, use cardiac nurses.  And should the situation arise, use the hospice nurses when they are appropriate.

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