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The following discussion thread excerpt is from an ongoing law.com online seminar, Using ADR to Resolve Employment Disputes, moderated by Jeffrey Krivis. For more information on this program and other law.com seminar offerings please visit www.law.com/seminars. Jeffrey Krivis, First Mediation Corp., Encino, CA What are the advantages and disadvantages in selecting a neutral who is a retired judge as opposed to full time neutral? Attorney v. non-attorney? John Weiss, Attorney-at-Law, Encino, CA Newly retired judges tend to handle mediations more like mandatory settlement conferences (“MSC”) and for that reason, I prefer to use a seasoned mediator who, if he or she was a judge in a prior life, has had sufficient time away to be steeped in the ways of traditional ADR untainted by the MSC model. Michael Kenndey, Stradley, Ronon, Stevens & Young, Cherry Hill, NJ My own experience and that of many of my partners is that judges (who are used to conducting mandatory settlement conferences) are not necessarily possessed of what we would agree are good mediation skills. For example, in one case I know of personally, such a judge denied the parties bathroom and food privileges in an effort to wear them down. This is not the skill I am seeking when I employ a mediator to get below the surface and identify their true interests. Unfortunately, many judges are by force of habit or nature too ‘judgmental’ to be effective mediators. I think that fact is that we are looking for special skills which a judge (present or retired) may or may not have — it doesn’t come necessarily with the job or the experience. David Kadue, Seyfarth, Shaw, Fairweather & Geraldson, Los Angeles, CA I agree that former judges face a challenge as mediators. They seem to work best when the plaintiff needs an authority figure. Some former judges have risen above their background and are quite effective. Most are, in fact, just too judgmental. For defendants, I like them best when we have a righteous summary judgment on file and the judge can say with conviction that it likely will be granted. In most cases, I prefer a neutral (full-time or part-time) who has evolved beyond the MSC model. Stephen Hochman, Friedman, Wittenstein & Hochman, New York, NY I agree with what has been said so far about ex-judges as mediators, although there are some exceptions. In addition to mediation process skills, creativity, subject matter knowledge and all of the other important qualities and skills one needs to be an effective mediator, I would add negotiation skills. Since mediation is often no more than an assisted negotiation, it helps if the mediator knows how to orchestrate the negotiation to meet the emotional as well as the financial needs of the parties. One emotional need of many plaintiffs is to feel that s/he got the last dollar that the defendant was willing to pay. Conversely, many defendants have a need to feel that they settled the case as cheaply as possible. Margaret Shaw, ADR Associates, LLC, New York, NY On the other hand, there are former judges who “get” the mediation process, listen well, and approach the process creatively, while there are “seasoned” mediators who are pretty heavy handed. It points to the importance of both knowing what you are looking for, and interviewing potential mediators and checking out their references to make sure you are getting the type of mediator you think will be best for your particular case. Jeffrey Krivis, First Mediation Corp., Encino, CA Does the neutral need to have expertise in employment law to do a good job either in arbitration or mediation? Michael Kenndey, Stradley, Ronon, Stevens & Young, Cherry Hill, NJ I worry that a deeply experienced labor/ employment lawyer will be excessively focused on ‘rights’ rather than interests. I don’t think I would automatically disqualify such a person, but would go to lengths to satisfy myself that he or she has the requisite mediation skills in addition to any employment experience. In a contest between the two the mediation skills are the more important. David Kadue, Seyfarth, Shaw, Fairweather & Geraldson, Los Angeles, CA My very strong preference is for a mediator to have deep and extensive knowledge of employment law. Part of any negotiation is to have the parties face the alternatives to settlement. In our business, the primary alternative is summary judgment or trial. The mediator needs to give the parties some intelligent independent assessment of what the risks of motion practice and trial will be. The more case-specific the assessment, the more credible and effective the mediator will be. So in an employment law case, I want a mediator who can at least pose effectively as an employment law expert. Stephen Hochman, Friedman, Wittenstein & Hochman, New York, NY Although I agree with Michael that mediation process skills are essential, I think David is correct in emphasizing the need for at least enough subject matter expertise to be credible with the parties in the risk analysis phase of the caucus sessions. Although I also agree with Michael that the interests of the parties are of paramount importance, in most of the employment disputes which I mediate the primary interest of both parties is money. It is not always the amount of the money as much as the need of the plaintiff to feel that s/he hasn’t settled for less than the defendant was willing to pay and for the defendant to feel that it hasn’t overpaid. If settlement is the goal, you need a mediator who will help both parties make an objective cost/benefit analysis between a particular settlement proposal and the litigation alternative. Most litigations have two issues — i.e., (1) who is going to win, and (2) how much. It’s hard for a mediator to be a credible agent of reality without having at least some subject matter knowledge of the legal issues in dispute.

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