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November 06, 2020 Feature

Transforming Justice: The Value of Mediation Training

By Judge Stephanie Domitrovich

When judges think about transitioning from the bench to another career, they often consider mediation as their next career step. For many judges, mediation appears to be a natural progression in their judicial careers. This article suggests that in order to have a smooth transition from our careers as judges on the bench to mediators upon retirement, judges should consider early in their careers the value and benefits of participating in a rigorous “hands-on,” interactive mediation course to prepare them for that transition. By taking a mediation course early in their careers, judges acquire skills to assist them in their own courts in a number of ways, from addressing administrative conflicts with court staff members to assisting litigants in the courtroom on the purpose and value of mediators to resolve their differences. Hence, by learning mediation skills early, judges will achieve a smooth transition to their future careers as mediators.

To obtain mediation skills, judges should attend and participate in a rigorous mediation course because judges cannot simply apply their "judging" skills to become mediators. The world of "judging" and the world of mediation involve different skills and are totally different in theory and in practice from each other. When judges are in their courtrooms, judges decide the cases, whereas in mediation, the parties decide their own cases. Mediators facilitate resolutions by empowering their participants to resolve and decide their own issues. But merely learning "judging" skills and applying our judicial experience to mediation do not result in judges becoming successful mediators. Simply having experience in "judging" by deciding cases is not a proxy for being a successful mediator. For mediation, a new foundation is necessary: a different set of skills and training in mediation to implement and effectively conduct viable mediations. In order to smoothly transition into becoming mediators, judges must learn to apply mediation skills through a course guided by experts in mediation.

Many mediation courses are available throughout our nation to train mediators; however, I would recommend one course above all others. This course is known as Civil Mediation and is held at the National Judicial College (NJC). Civil Mediation encompasses an entire weeklong 40-hour curriculum tailored especially to teach judges the skills of mediation. I learned early in my career as a trial judge that my taking this NJC course made me a better person and a better judge. Taking this course allowed me to garner mediation tools for my judicial toolbox to better assist litigants. Trial judges in Pennsylvania and other states are unable to act as mediators in their courtrooms; however, judges can use their mediation skills at a settlement conference to assist counsel and litigants. By using mediation skills, judges facilitate and empower the parties to work toward their own solutions instead of having to provide "war stories" about jury verdicts to leverage possible case settlements.

The NJC Civil Mediation course instructors, Nancy Neal Yeend and Judge Steve Gizzi, who were my instructors as well, are learned and skilled instructors in mediation techniques and the law. They captivate judges with their explanations of key strategic concepts that focus on the interests of the parties, ranging from psychological implications regarding the impact of implied biases to awareness of the physical environment at the mediation table to maintain a secure setting. Judges learn the value of balancing the power between the parties with a seating chart tailored to the parties to encourage participation among the parties and to ensure a safe environment.

These instructors seamlessly weave their insight and perspectives on the topic of mediation into the very fabric of their students' lives through lectures, PowerPoints, and films that demonstrate positive points for use in role-playing realistic scenarios. The instructors provide judges with opportunities to rotate into a variety of roles as mediators, lawyers, and parties in a broad range of law from family court to personal injury lawsuits. Judges are critiqued on their ability to role-play as mediators in order to gain valuable perspectives and insight as to how others will view them as mediators. While modeling actual mediator situations, judges learn how to comprehend step by step the complexity of varying communication styles and gain valuable insight into when and how to integrate negotiation skills into the mediation process.

Very importantly, judges learn how mediators identify and address racial, gender, cultural, and other personal biases. Judges learn about their added ethical responsibilities in becoming a retired judge as mediator. Judges are taught how to react as mediators in high-pressure situations where the parties intensely dislike each other. As mediators in these role-playing scenarios, judges confront head-on various "traps" and difficult issues so they can learn how to address challenging situations as mediators. Where the parties become aggressive in their roles in the mediation process, judges study how to level the mediation table by caucusing and breaking impasses to achieve a balanced atmosphere and effectively facilitate mediations.

In a recent article, NJC Instructor Yeend provides a glimpse of her teaching style by explaining how judges effectively use five of her many mediation tips and skills in their courtrooms:

Tip #1. Judges should consider framing their judicial questions as open-ended questions, not closed-ended questions, to elicit the most valuable information from the witnesses.

Tip #2. Judges should avoid using the word "why," which can tend to place the witness answering on a "psychological defensive." Judges instead should consider asking witnesses open-ended questions inquiring as to the factors that have led to a witness's decision.

Tip #3. In the NJC's Civil Mediation course, judges learn how to improve their listening skills by learning what prevents them from listening. This tip involves being aware of listening filters such as the filter of familiarity, which causes listeners to "tune out others." Judges must be more careful to pay attention to those in our lives, such as spouses and children, who are so familiar to us that we tend to "tune them out." Yeend noted many marriages were saved by this awareness tip!

Tip #4. Judges, by simply leaning forward with their arms on the bench, project to their viewers subconsciously that they are interested in hearing from these viewers.

Tip #5. Judges can engage counsel to discuss options in a settlement conference by asking counsel, "What have your other clients done in similar situations?" Interestingly, when one counsel suggests an idea, often opposing counsel will add a suggestion based on their experience with clients "so as not to be outdone."

Through mediation training, mediation becomes a way of life for judges in order to transform justice in their courtrooms. Judges are not only teachers of the law on the bench but should be students in both the law and mediation to best serve their constituents. By acquiring mediation skills, judges improve their own judicial decision-making skills in their courtrooms. Through a strenuous mediation course early in their judicial careers, judges transition smoothly into a future career as mediators to facilitate and empower parties to resolve their own cases at mediation. Indeed, mediation is a definite "win-win" for judges on and off the bench as well as for the litigants! The value of mediation training is priceless..

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    By Judge Stephanie Domitrovich

    Judge Stephanie Domitrovich has served for 30 years as an elected general jurisdiction state trial judge of the Sixth Judicial District of Pennsylvania.