1. Federal Bar Association
The Pros and Cons of a Trial Judge as a Mediator
Hon. Dan A. Polster United States District Judge Northern District of Ohio
August 14, 2013

2. Federal Bar Association
Conventional Wisdom: A Trial Judge Should Not Mediate His/Her Own Cases
Danger of actually being influenced in trial rulings by what parties say or do during mediation
Perception of parties that the judge would be influenced by what was said or done during mediation
Perception of parties they are being pressured to settle the case
Parties will not be as candid with the trial judge as they would with another mediator
Federal Bar Association

3. What the Trial Judge Can Bring to Mediation that No One Else Can
Give parties a true “day in court”
Provide a reality check to both sides
Find out from the parties themselves what their real needs and interests are
The ability to stay with the mediation over time: many cases require multiple sessions and/or phone calls
Federal Bar Association

4. Rules that Should Apply to a Trial Judge When Mediating
Judge must have training and experience
Judge must be prepared
Never impose yourself on parties
Judge must not mediate bench trials
Make sure everyone in advance knows the ground rules for mediation
Judge must not reveal how he or she will resolve pending or upcoming legal issues
Federal Bar Association

5. Rules that Should Apply to a Trial Judge When Mediating
Judge should repeatedly state to the parties that they don’t have to settle the case today or ever, and if they don’t settle, the only negative consequences are those of the litigation process itself: uncertainty, cost and emotional toll
Be courteous to attorneys and parties
Be an effective and empathetic listener
Judge must be scrupulously fair in conducting the trial and in all legal rulings in the event the case does not settle
Federal Bar Association

6. The Pros and Cons of a Trial Judge as a Mediator
Questions?
Comments?
Federal Bar Association
Must grow non dues revenue