An article today in the New Jersey Law Journal discusses the career path of retiring judges who go into mediation. The NJ Constitution requires judges to retire when they hit the age of 70. Judges call this constitutional senility. Because of their role as judges and the conflict (or perception of) appearing in front of their former colleagues — and perhaps even in their former courtrooms — they are prohibited from representing clients in court after retirement. This certainly limits their ability to act as counsel for clients. As a result, many former judges opt to become mediators.
Does service on the bench make a judge a good mediator? Yes and no. The reputation of retired judges as mediators is that they are still “judging” just without the black robe and gavel. Some judges do not receive intensive mediation training. If a lawsuit makes it far enough, they will end up in what is called a settlement conference in front of a judge. Most judges use the settlement conference to lean hard on the parties to settle the case. Judges will often tell the parties what he or she thinks of their case, where he or she thinks it should settle and will insinuate that some witnesses or evidence may or may not be admissible at trial — thus changing a party’s ability to present certain evidence. In the world of mediation, this style of mediation is called evaluative mediation. Many clients do not like being told what to do or how good a case they do not have. That is what they hired an attorney for. Mediation is supposed to be empowering to the parties to make adult decisions (this is called the facilitative or transformative styles of mediation).
I like to think that mediation is more than hearing from someone, “Well, if I were still on the bench, I would rule…” If parties really want someone to “make the call” then they should go to court or arbitration and skip mediation. Mediation is not what they are looking for.
Why do parties use retired judges then? Some parties want to be told what to do. Some attorneys need that evaluative cover with their clients (they can get the same thing from a facilitative mediator too). Some clients, like insurance companies, think it’s “safe” to hire retired judges as mediators. The old expression “No one ever got fired for hiring IBM” applies to adjusters.
All that being said, there are some very good retired judges practicing facilitative mediation. I know many of them. Clients simply need to know what they will be getting when they hire a mediator. And that retired judges are not necessarily what they are looking for despite the cache. Do your research just as if you were hiring an attorney.