Way back when I served as a law clerk to a federal district court judge, I remember watching a trademark infringement bench trial about to begin. The parties had all their exhibits lined up; they had prepared their experts and their surveys; their attorneys announced that they were ready to proceed. Months before, I had worked on the opinion denying one side’s motion for summary judgment, so I knew that the parties had already invested in a lot of pre-trial proceedings. Before hearing opening statements, my judge advised the parties that he had formed no conclusions yet about which side was in the right. He told the parties and their attorneys that he would try to reach the correct result, and that he was ready and willing to give everyone a fair trial, but that he was himself uncertain about the outcome. He also wanted to remind the parties that whatever the result of the trial, the losing party could always appeal, and they could still be looking at a long period of expensive litigation ahead of them. He then asked if they had made all efforts to settle the case. His entire speech took about two minutes. One of the attorneys asked if they might have a few more minutes to confer between themselves, and the judge retreated to chambers. Less than an hour later, the attorneys sent back word that they had settled the case.
Such is the power of the trial judge to settle cases. Sometimes all people have to do is look into the eyes of the person in whom they are about to entrust their fate before they realize that it might make more sense for them to control the result themselves.
Of course judges often have to get a lot more involved in settlement negotiations, employing a variety of mediation techniques to help the parties reach a settlement. Some of them are masters at mediation. But the real power of the judge usually rests in the parties’ perception of the judge as an authority figure. Parties come to court expecting an embodiment of wisdom and power to dispense justice to them. They sometimes carry these same expectations into a mediation. Even if the settlement judge is a different judge from the trial judge, or is a retired judge, parties tend to put some stock in his perception of the case’s likely result, based on their confidence in his experience. Studies support the idea that what judges bring to the table is their moral authority and their ability to provide reliable case evaluations. (also here and here) And as shown by the example I witnessed, sometimes judges don’t even have to intimate the likely outcome to retain their power to induce a settlement. They might just need to look the parties in the eyes and suggest that settlement would be a good idea.
The drawback of using a judge as a mediator comes when the parties aren’t so intimidated by the settlement judge, or when the judge is too opinionated and one or the other party disagrees with the settlement judge’s opinion. Even if that party is being foolish to disagree, the judge can still lose his effectiveness when his assessment of the case is simply rejected. As this article by Jeff Kichaven points out, it is not often that even experienced judges are able to provide a better valuation of the case than the parties’ attorneys, who have lived with the case for months and are intimately familiar with its details. Judges sometimes think that case assessment should be the end-point of a mediation. They may not always have the patience to allow the parties to work their way through their own assessments, or to probe into other factors preventing resolution of the dispute. When considering a judge as a mediator, it may be helpful to ask what else that judge brings to the table aside from his judicial experience and authority, or is that experience sufficient to help settle the case in a satisfactory way. The best judge-mediators retain their aura of authority, while refraining from being too quick to judge the outcome; and they continue working with the parties beyond the case assessment stage of a mediation.
(Paul Benedict in The Addams Family)