Wednesday, November 7


It's always a good week when someone, somewhere asks how come judges can leave the bench for retirement at the mediation table?

And it's especially good if you have often wondered out loud (How wrong can you get? and Great on paper, crap at the table) what skills used for judging can possibly complement those needed for mediation.

One of the best think pieces on this is still the 2005 Judicial Ethics and Judicial Settlement Practices: Time for Two Strangers to Meet

But hey, you can't argue with the market - it's the mediators who are connected and have authority in their niche who will live long and prosper


Victoria Pynchon, said...

Here's the answer. People, particularly people who are lawyers & thus trained to defer to Judges (I understand this does NOT apply to the criminal defense bar); believe they need POWER to CONVINCE the OTHER GUY to do something HE DOESN'T WANT TO DO.

Power. Not enlightened self-interest. Coercion. Not cooperation. Force. Not attraction. Vinegar. Not honey. GITMO. Not patient conversation.

Hence, in the U.S. at any rate, A JUDGE, not an attorney. A lawyer, not a non-attorney mediator. A big gun. Carrying a big stick. And usually packing, ahem, well . . . those two little round things we girls don't have.

Dina Lynch, said...

I agree with Vickie that power is a key factor. Judges enjoy a heady mix of power and authority, true, but it's not an unbeatable combination.

Mediators who dominate their market niche can reap the benefits of recognition, referrals and steady cash flow, too.

The consumers, lawyers and mediation parties alike, want their desired outcomes and will choose the provider who can demonstrate- the ability or resources to achieve that end- actual or perceived. It's not rocket science. It's the value proposition that judges use.

This may sound harsh, but mediators would do better to stop whining and starting exploring their own unique value proposition. It's your job to re-educate the market if you want a piece of it.

It's a matter of brains over balls.


vickie pynchon said...

Oh my goodness. I hope of all people, Dina, don't think either Geoff or I are "whining." These are genuine perceptions and I have built my mediation practice in spite of them. But they are very real barriers and it is not in any of our best business interests to bury our heads in the sand about what people THINK they want until they find someone who can PROVIDE THEM WHAT THEY REALLY WANT. "My clients want a Judge," is what most of the AmLaw 100 friends I have tell me. And I totally get it. MY clients wanted a Judge too. I used the services of Jeff Kichaven once and he did more for me as a mediator than I thought possible. Over the next several years, I promoted him within my law firm as a "go to" mediator. I never once got authority to hire him (I used him for a pro bono case I'd been handling or I never would have had the pleasure of his services). Lawyers DO "get it" now, but they remain wary of hiring someone who has no judicial experience because they/we are/were LITIGATORS and litigation is all about power plays, not collaboration; not business strategy, but civilized war. You are quite right to say this is a teaching function and there is no reason why Judges can't become the best mediators in town. Just as there's no reason lawyers or human relations managers can't find the best way to make a new mousetrap. So I do not "dis" anyone for their background. I do, however, know what I'm up against in building a practice. Undaunted by not self-deluded. All best, Vickie