Upon my recent retirement after 25 years as a New York State Supreme Court justice, I have embarked on a similar but not identical career of being what is popularly known as a neutral/mediator/arbitrator. For the last 17 years of my tenure on the bench, I was assigned to the calendar control part, formerly known as the trial assignment part. During that time, in addition to serving as a trial judge, my primary focus was maintaining the efficient flow of cases on the ready trial calendar. The responsibility of presiding over these daily calendars of trial ready cases for years provided me with valuable experience mediating and settling cases.

At first blush one may think that the role of a judge engaged in the process of mediating settlements is basically the same as that of a neutral. There are indeed some similarities. However, now that I am on the other side of the bench, I have learned that in fact, there are significant differences that practitioners should keep in mind when comparing private alternative dispute resolution and mediation in the court. Examples of such differences include the available tools and conditions of participation in both processes, the expectations of the parties in each arena and the attention span of a neutral vs. that of a judge.