The Pros and Cons of Judicial and Private Mediation

BY JUDGE HARLIN DEWAYNE “COOTER” HALE

I served as a bankruptcy judge in Dallas for almost 20 years, and I mediated many disputes for my colleagues, as they did for me. Other state and federal courts provide for judicial mediations or settlement conferences. After retirement, I joined JAMS and now mediate matters regularly as a private, paid mediator. Having experience both as a judicial and a private mediator has made me contemplate the difference between the two. They both have their positives and negatives.

Judicial Mediation

Parties and lawyers like to mediate with sitting judges for several reasons. First and foremost, it is free! “Free” is a word not used frequently in litigation, and it sounds so nice to clients. And the parties to the mediation should get some insight about their case from the mediator-judge. Most judges will not try to take the place of the presiding judge during the mediation, but during the day it is very tempting to answer the question, “Judge, what would you do?”

Clients seem to be more attentive during a mediation with a sitting judge. In my experience as a judicial mediator, the parties and lawyers posture less when a sitting judge is mediating. I never had a party walk out when I was a judge conducting the mediation. Lawyers know they must come back before the mediator who will next time be wearing a black robe, and they tend to behave themselves.

Judicial mediation also has some downsides.

First, most sitting judges are very busy, and finding time may be difficult. As dockets are planned weeks and months in advance, it is hard to pose an emergency mediation to a sitting judge.

Finding a place convenient to the judge, counsel, and the parties may prove to be a problem. The courthouse is not a great place to hold a mediation. A better mediation location is usually one of the law firms involved.

But that may prove to be a problem when the judge needs to be close to chambers. And for the judge there are always security concerns away from the courthouse.

Because of the court’s docket, getting ready for a judicial mediation may be challenging. It is hard enough to set aside one day for a mediation. But to have a good mediation one must prepare, which takes time in advance of the session.

Finally, not every judge is a good mediator. Judges generally call balls and strikes. Bringing people together is not their job; deciding complex issues is.

Private Mediation

I have now drifted into private mediation. It too has its pros and cons.

The primary negative of private mediation (and it hurts to say so) is the expense of the process. Most mediators charge an hourly rate for the whole day, which makes the process cost thousands of dollars.

On the positive side, most mediators have a great deal of training in problem solving. That is what they do. They were selected by their firms because of their reputations for fairness and their skills and successes as a neutral.

In the private mediation world, emergencies are usually not a problem. Unlike court, not every day is booked. So, you are likely to be able to see the mediator on short notice.

A big positive is the accessibility of a private mediator. It is usually easy to contact the mediator or the case manager to get a question answered or to get information to the mediator. Not so much for a sitting judge.

Conclusion

Both judicial and private mediations have their good and bad aspects. It is not one-size-fits-all. Hopefully, this short article will give you some food for thought as you consider with your client which way to go.

Judge Harlin DeWayne “Cooter” Hale (ret.) may be reached at hhale@jamsadr.com.