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Judge William Cahill isn’t so nervous anymore. When he retired last June from the San Francisco Superior Court and embarked on a new career in private judging, Cahill says he was going broke and wondering whether he would make it. “I was living from paycheck to paycheck just like everyone else,” he says. “I didn’t know if it was going to work.” Cahill may not have been sure, but many in the legal community figured he would fit in perfectly at JAMS, the Irvine, Calif.-based alternative dispute resolution provider. In 10 years on the bench, he had earned a reputation for settling cases. Cahill shouldn’t have worried. He’s been so busy, his colleagues at JAMS worry he might get sick from overwork. “Bill made the adjustment. He adjusted early,” says JAMS’ Daniel Weinstein, a retired San Francisco judge and a star in private judging. But a successful career as a neutral mediator isn’t in the cards for every retired judge. The transition can require some big adjustments. Retired judges, no longer the courtroom figure of authority and power, find a much more informal setting in private judging that requires a different set of skills: They must be more cajoling and personable in mediation than they had to be on the bench. “It’s a great opportunity for people to have a second career, adjust to the marketplace and not sacrifice their impartiality or integrity,” Weinstein says. “[But] it’s presumptuous to think you can transfer from one to the other easily.” Weinstein says judges who successfully make the jump usually have discovered their own style early on. In general, he says, former judges who would rather not go out on a limb tend to make better mediators because they want the parties to resolve their problems. But the former judges who enjoy making tough calls are more likely to be better at arbitration. As self-employed contractors, former judges must cope with an added pressure in private judging. For the first time, these judges must consider what lawyers and their clients think of them. Their income depends on it. Judges do seem to have an advantage over nonjudges in ADR. Typically, judges bring the experience of having seen a gamut of cases. They also are perceived by clients to be a neutral party. Being a judge doesn’t necessarily ensure success in ADR. At JAMS, for example, most of the 200 neutrals are judges. But the revenue isn’t generated equally. Half the neutrals account for 90 percent of the revenue, according to the company. Still, retired Napa County Judge Thomas Kongsgaard, a JAMS neutral since 1988, says most judges have honed the most important skill that makes them perfect for mediation: patience. Certainly, it’s a lot easier to be patient at JAMS than in a busy trial court, where a judge might have three or four cases to settle in an hour or two. And clients, for their part, tend to be more patient with the private mediator, whom they’ve chosen to handle the case. “At JAMS you can have all day, you can take three or five hours sometimes, 10 if you want to work through the night,” Kongsgaard says. But it’s by no means a leisurely process. Often, it’s grueling. “You can go to mediation for eight hours and not gain anything, and in the last 10 minutes it’s resolved,” says Justice Donald King, who retired in 1996 from the First District Court of Appeal. He now works at the San Francisco office of the American Arbitration Association. JAMS and other ADR companies try to insulate their contracted neutrals from the business side of ADR, something former judges in particular appreciate. JAMS administrators ensure that their neutrals never have to discuss rates with their clients. And they never know which client is paying the bill. Even so, judges say it’s hard for them to ignore one of the primary differences between working for the government and working for a private ADR firm: As King puts it, he now has the responsibility of being hired for a job. “People employing you are making an investment in you,” he says. Nowadays, if King doesn’t get a settlement, he says his conscience bothers him. “Why couldn’t I do it?” Cahill feels the positive pressure, too. He says he feels like he has to be very good, that he has to be on all the time. “As a mediator, if you don’t do good work, you don’t get work,” Cahill says. That’s unlike judging, where “the court system is a monopoly: It doesn’t have a responsibility to anybody.” But private judges also say they try not to worry too much about what clients think of them, especially when in arbitration. “I think if you become overly concerned [whether] people will come back or not, you might not be doing a good job,” says former First District Court of Appeal justice Zerne Haning, who joined JAMS at about the same time as Cahill. Kongsgaard says he doesn’t miss the power of the gavel, but admits he has had to adjust to not having the authority it wields. “When you are on the bench, you have a little more clout,” Kongsgaard says. “When someone doesn’t show up on time or get a paper to you, you can hold him in contempt — not that I ever did. But you had that big stick. In the private mediation field, your stick is persuasion.” Still, having been a judge carries some weight, especially with clients. “The clients perceive an extra importance and authority, and I think that aids them some,” says Michael Baker, a business litigator at Howard, Rice, Nemerovski, Canady, Falk & Rabkin, who stayed up with Cahill till 3 a.m. one Saturday knee-deep in a technology licensing dispute. Another difference between public and private judging: While private judges are expected to remain as neutral and objective as their public counterparts, they are also expected to delve into the personal lives of their clients in their search for solutions to their cases. For example, during a wrongful termination case, Cahill discovered after several hours that the employee refused to settle with the company because he thought he would let his parents down. “We called the family in Utah, and they said ‘OK,’ ” Cahill says. For judges new to ADR, it typically takes six to 18 months to build a good client base, veterans say. “You have to be patient. You want people to come to you — word of mouth is definitely a big factor,” Kongsgaard says. It’s hard to describe why some judges who enter private judging seem to be so much busier than others, King says. “How do you distinguish Jerry Rice from the rest of the receivers?” he says. “There are some intangibles.” King says that there is a reason some judges are held in higher regard than others while on the bench, and odds are they’re the ones who’ll be making money in private judging. “I’m unaware of anyone who was a top-flight trial judge who is not held in the same regard in the private circle.”

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