Tuesday, August 11

What Difference Does a Robe Make? Comparing Mediators with and without Prior Judicial Experience

An intriguing article (abstract only) in July's Negotiation Journal (Jul 2009. Vol. 25) by Stephen Goldberg, Margaret Shaw, Jeanne Brett reporting the results of two studies;

"... a glance at the rosters of some of the major mediation providers shows that between 40 percent and 60 percent of their mediators are former judges. This influx of former judges into the mediation ranks raises several questions that we address in this article:

1. Are former judges achieving success as mediators of commercial and employment disputes and, if so, why?
2. What are the characteristics and skills of those former judges who have succeeded as mediators?
3. Do former judges succeed as mediators for the same reasons as mediators who have not been judges?
4. What are the reasons why some former judges have not succeeded as mediators?

The first study, based on the responses of attorneys to questions about the reasons for the success of mediators with and without prior judicial experience, shows that the capacity of the mediator to gain the confidence of the disputants was most important for mediators with and without prior judicial experience.

Although certain process skills were viewed as important to the success of both former judges and nonjudges, in general, process skills were significantly more important for nonjudges than for former judges. The capacity to provide useful case evaluations, on the other hand, was significantly more important for former judges than for nonjudges.

The second study, based upon attorney responses to questions about unsatisfactory mediators, reinforced the conclusions of the first study regarding the importance of confidence-building attributes.

For both judges and nonjudges, the mediator's inability to gain the confidence of the parties was a major reason for his or her lack of success."


Diane Levin said...

Geoff, thanks as always for pointing readers like me to interesting stuff like this.

Too bad that the entire article isn't available online but what strikes me about this study is, how come no one asked the clients? These studies focus on what attorneys thought of these judge-mediators; I'd really like to know what the clients themselves think of judges who mediate. A curious omission.

Ericka Gray said...

Well said Diane. First - everyone who reads the aticle should take the results with more than a grain of salt. I was able to read the entire article. The article addresses "litimediation" and, as Diane notes, excludes the clients from the study. The sample size is appallingly small, which renders the comparisons between former judge mediators and "non-judge" mediators results rather meaningless, to my mind. By surveying the attorneys, and not the clients, about why the case settled, one is asking for the attorneys to guess about the client's perception of the mediator. Other research has shown disparities in how clients and lawyers view mediation (e.g. Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs, and Gendered Parties, Tamara Relis - a tough read unless you're a social scientist).

In any event, more research is necessary. Thanks for sharing this, Geoff.