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September 01, 2017

A Magistrate Judge’s Plunge into the World of Private Mediation

A former judge reexamines the roles of settlement and mediation.

Hon. Frank Maas (Ret.)

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When I began my service as a magistrate judge in the Southern District of New York in 1999, I cribbed heavily from the uniform written procedures employed by most of my colleagues. During a settlement conference around that time, one of the attorneys referred to the proceeding as a mediation. After I interjected that it was a settlement conference, not a mediation, I was chagrined to be reminded that the procedures I had adopted as my own indicated that the session would be a mediation and that I would act as a mediator.

Over the next 17 years, I never referred to a settlement conference as a mediation, nor to myself as a mediator. Why? Well, among other reasons, I considered mediations time-consuming, and I had little time to waste. Indeed, there were times when I held three settlement conferences a day: one at 10 a.m., one at 2 p.m., and one at 5 p.m. Because I liked to eat lunch and see my family occasionally, the typical settlement conference ran three hours or less.

Now, as a private neutral, I conduct mediations, not settlement conferences, and they frequently run all day. I also am no longer interrupted by calls from fellow judges or counsel who are in the midst of depositions. But are these the only differences between a settlement conference before a magistrate judge and a mediation before a neutral at a mediation service? My new role has caused me to reexamine this issue, and I want to share some of my observations.

Settlement Conferences

Many of my settlement conferences were scheduled because a district judge or I wanted to explore settlement before having to resolve a difficult motion or conduct a lengthy trial. As a result, the discussions often took place without any real commitment to the process on the part of the parties. These conditions did not preclude settlement, and, in fact, many cases were successfully resolved. But attendance at the settlement conferences frequently was not a wholly voluntary act. Moreover, the parties did not get to select their magistrate judge. If I was the magistrate judge designated when the case was assigned to a district judge, absent a conflict, I was the magistrate judge who would conduct the settlement conference.

The settlement conferences I presided over were almost always preceded by the submission of letters from counsel that briefly described the relevant facts, any prior settlement discussions, each party’s view of the value of the case, and the supporting rationale. Such submissions usually were limited to five single-spaced pages per side and ex parte. On occasion, counsel would send a copy of their letter to their adversary, but that was exceedingly rare.

My settlement conferences typically began in the courtroom, where I would sit on the bench wearing my robe. There, each side would be afforded an opportunity to present a summary of its case for the benefit of the other parties. Although I encouraged counsel to be dispassionate in their presentations, this entreaty often was disregarded. Many counsel wanted to demonstrate their zealousness in their client’s presence, although they also recognized that too assertive a presentation might reduce the likelihood of a settlement. Some cases, particularly discrimination cases, were so fraught with emotion that I would skip this step, particularly if counsel thought it inadvisable. In many cases, however, I would hold the joint session, contrary to counsel’s wishes, because I wanted the parties to gain some understanding of the stress levels that they would encounter during a trial.

After the courtroom presentations, I would begin to caucus separately with each side in the robing room. When I entered the robing room ahead of counsel and the parties, I deliberately would doff the robe and sit in my shirtsleeves even if counsel and their clients were wearing suits. In my view, the courtroom phase of the conference represented the opportunity for parties to have “their day in court.” From that point on, I wanted counsel and their clients to feel comfortable sharing their thoughts with me in an informal environment. Sitting in the robing room without a suit jacket seemed to encourage such candor. (So did my occasional efforts at humor.) While the robing room conferences were informal, I always called party representatives by their last names and would use first names to address counsel only if they appeared before me frequently. I, however, always insisted on being addressed as “Your Honor” or “Judge.”

Early rounds of the separate caucuses consisted principally of fact-gathering and permitting the parties to learn to be at ease with me. As the rounds proceeded, I would convey aspects of the other side’s case, question factual assumptions, and begin to talk in greater detail about numbers or affirmative relief. With only three hours available for the typical case, I would move from facilitation to evaluation in relatively short order.

During caucuses, I rarely would meet with counsel without their clients present, unless the clients were frothing at the mouth or otherwise unable to participate effectively in the proceedings. On certain occasions, however, after securing the consent of counsel, I would speak to the principals on both sides without their attorneys present. As you might imagine, this was a technique I did not employ often, nor one that met with much enthusiasm on the part of counsel.

If a case settled, I would put the terms on the record and have the parties and counsel sign a “30-day order,” permitting them to reopen the case within that time frame if the deal fell apart because the defendant was unable to pony up the promised funds. I nevertheless cautioned counsel and their clients that their oral understanding was binding and that they would not be able to renegotiate the basic deal terms. Sometimes the settlement terms were confidential; at other times, a confidential settlement was not possible, either because the case was a class action or because there were statutory obstacles to a private settlement.

If the case did not settle, I occasionally would propose a number or other terms to both sides—a so-called mediator’s proposal. I estimate that I did that in fewer than 5 percent of my cases. The amount of time that each side had to consider the offer varied depending on the facts of the case. On occasion, the parties were afforded only minutes to decide; at other times, they might be given a week or more. In certain types of institutional cases, it was understood that the representative attending the conference would have only limited authority (my rules to the contrary notwithstanding) but that the defendant would ante up more money once I had provided some cover by making a recommendation. Apparently, the case valuation arrived at by a judge carried some weight (or at least insulated defense counsel from criticism).


My mediation experience has been somewhat different. For one thing, in most instances, when the parties select me as a mediator, they have decided that they wish to have a neutral assist them in their discussions and that the time to have those discussions is now. This alone has significantly improved my settlement success rate. The parties presumably have also had an opportunity to consider whether my background, demeanor, and mediation style are appropriate for their case. This is not something the parties could do when the assignment of their settlement discussions to me was preordained.

As a judge, I often would make a mental note to follow a case to see whether parties who failed to reach agreement fared better or worse than they would have had they accepted the terms that were on the table when they appeared before me. With hundreds of cases at a time assigned to me, however, it simply was not possible to do that as often as I would have liked. In big cases, I might reach out to counsel in an effort to resume discussions after a summary judgment motion was decided or following some other material change. But in most cases, a failed settlement conference marked the end of my involvement in a case that had been referred to me solely to pursue settlement discussions.

Now, however, my caseload is much lighter, and it is feasible to follow cases more closely. I therefore am in a position to help restart discussions that might otherwise never occur. In short, my motto now is “never say never,” rather than “so many cases, so little time.” I assume that this is one of the reasons that parties often opt for private, rather than court-annexed, mediation.

Rather than lasting only a few hours, my typical mediation is an all-day affair. Some of that time is spent getting to know the principals on each side and letting them learn more about me—a trust-building exercise I rarely had the time to indulge in while on the bench. Although the clients don’t have the opportunity to see their counsel in action in a real courtroom, they still have an opportunity to vent before a real, live (albeit, former) judge.

A few of my magistrate judge colleagues in the Southern District of New York always held pre-settlement conference calls with counsel. I rarely did. Now, however, I routinely schedule such calls to establish the ground rules and make sure that all the necessary decision makers will be available. I also discuss with counsel whether they wish to have an initial joint session. Confirming what appears to be an increasing trend in private mediations, virtually every attorney has asked that there be no such session. While some mediators consider a joint session a critical part of the process, I have yet to encounter a situation in which the lack of a joint session arguably affected the outcome of the mediation. In many instances, it helps keep the parties’ emotions at an acceptable level, rather than temporarily raising them to full boil.

I still ask counsel for pre-mediation statements, but I find that there is a greater willingness to share statements with opposing counsel (except for discussions of the bottom line). It also is common for counsel to submit statements longer than five pages and to provide me with copies of many more exhibits and expert reports than they did when I sat as a judge. With more time to devote to each case, I also usually call counsel separately in advance of a mediation to learn whether there are additional important facts that they were reluctant to reduce to writing. By way of example, it is not unusual to learn that counsel consider their own clients’ positions unreasonable but have encountered difficulty getting them to focus on a realistic outcome of the case.

In keeping with the informality of mediation, I always ask the parties on each side during my initial sessions whether they would prefer to be called by their first or last names. Invariably, the parties and their counsel opt for first names. I am told one ex-judge serving as a private mediator goes to the trouble of carefully writing down each first name that he will need to use during the mediation before explaining to everyone in the room that for purposes of the mediation, his first name will be “Judge.” Although I sometimes relate that anecdote, I find, as a practical matter, that lawyers and their clients still want to call me “Judge.” If they can’t have their day in court, at least they can tell their tale of woe to someone who used to wear a robe at work.

Although there were cases in which I engaged in shuttle diplomacy while on the bench, the parties and their counsel usually ferried in and out of my robing room while I stayed put. Some parties settled (and some grew further apart) after brief exchanges with their adversaries on their way to and from my robing room. Now, however, in my role as a mediator, each side is assigned a separate room, and I do the shuttling back and forth. Between this and the lack of an initial joint session, the parties frequently see far less of each other than they would have when they came to my courtroom for a settlement conference. The lack of such interaction, combined with the quantity and quality of the food and beverages throughout the day, helps keep tempers in check.

Whether the parties are engaged in a settlement conference in the courthouse or a mediation under the auspices of a private mediation service, the likelihood is that successful plaintiffs will walk away with less than they wanted and that defendants often will pay more than they had anticipated. Arriving at such mutually distasteful results is easier to swallow when the parties have more time to assess the strengths and weaknesses of their case. There were, of course, cases in which I held settlement conferences lasting a full day, and sometimes even several days, when I was a judge. Those, however, were the exception, not the rule. Although there are litigants who book half-day mediations, my typical private mediation at JAMS lasts at least a full day. Having more time to discuss the legal and factual issues with the parties and their counsel is a significant difference between my mediations and my settlement conferences, and it is an important factor in increasing the likelihood of a settlement. I also am far more likely to recommend a proposed settlement to the parties than I was while sitting as a judge.

As a mediator, I also spend more time expressly addressing confidentiality issues than I did as a judge. While I was on the bench, I told parties about the importance of Rule 408 of the Federal Rules of Evidence, which restricts the future use of statements that a party may make during settlement discussions. As a mediator, I frankly worry more about this aspect of the ground rules. In some cases, I tell the parties that I will assume that everything is confidential unless I am specifically authorized to disclose it to the other side. In other cases, I explain that I am operating with the opposite presumption: that everything is fair game unless I am explicitly directed otherwise. Here, as in many aspects of mediation, I do not follow a “one-size-fits-all” philosophy.

Although it is important to have a clear understanding of the material terms of a deal before a mediation ends, I never have a court reporter on tap to memorialize the parties’ agreement if a mediation is successful. I do, however, often spend a fair amount of time helping the parties reduce their agreement to mutually acceptable language. Generally speaking, those terms are not shared with the court, which will simply receive a stipulation of discontinuance to be so ordered—unless it is a case in which the district or magistrate judge assigned to the matter has to opine as to the fairness of the settlement.

Settlement Conferences and Mediations Compared

So which of these alternative dispute resolution mechanisms is superior? The truth is that both have a place in a litigator’s arsenal. Here are some of the factors that parties and their counsel should consider in deciding which path to pursue.

First, if a case involves a relatively small amount of money, there clearly is a powerful incentive not to engage a private mediation service; pursuing court-annexed mediation instead may be the better option. Depending on the district, however, this may mean that the litigants forfeit the ability to choose the neutral who will try to help them resolve their dispute. They also may lose some control over scheduling. A judicial settlement conference also may be helpful if there are parties (or third parties) who are unwilling to participate in a private mediation—a judge may be in a better position to coerce (or cajole) them to attend.

Second, if the mere fact that discussions are under way might prove embarrassing or harmful to one side or another, a private mediation may be preferable. Indeed, in trade secrets cases, the party claiming that its rights have been infringed may be particularly reluctant to file a suit that will necessitate revealing some of its intellectual property. There may also be other reasons why one or both parties wish to eschew publicity.

Third, the facilitative stage of a mediation is likely to last longer than it would during a judicial settlement conference. If it is going to take time to lead one (or perhaps all) of the horses to water, or it is important that the parties feel that they reached their own deal, rather than accepting one suggested by the person conducting the session, a mediation may be preferable to a settlement conference because there are few time constraints. The longer time typically available for a private mediation also may be an important factor in cases in which the parties are highly emotional and need some time to vent before exploring realistic settlement terms.

Fourth, it may be that the other mechanism has already failed. During my time on the bench, there were cases in which I required the parties to participate in a settlement conference after a private mediation had failed. There also were instances in which the parties voluntarily chose to meet with a private mediator after my efforts to settle their case proved unsuccessful. In most such instances, the first informal dispute resolution mechanism helped narrow the gap; the second one closed the deal.

Fifth, one side or the other may view the district or magistrate judge as having a particular predilection. This often occurs in situations where counsel or their clients incorrectly read too much into the court’s ruling on a motion to dismiss or for summary judgment. Although this may result in the selection of a different neutral, perceptions of bias may actually help settle a case. Thus, in appropriate cases, counsel may prefer that any attempts to resolve the parties’ conflict be facilitated by a judge or neutral whom the adversary perceives as favorable to its position. After all, if the person whom your adversary selects suggests a solution that you consider optimal, that is likely to carry greater weight than if it was the recommendation of someone whom the adversary believes might be predisposed in favor of your side.

Sixth, you may encounter a situation in which the judge who intends to hold the settlement conference is also the judge who will preside at trial. There are, of course, ways that the court can ameliorate that problem. In the Southern District of New York, for example, if parties consented to my jurisdiction for all purposes pursuant to 28 U.S.C. § 636(c), making me the trial judge, I could ask one of my fellow magistrate judges to volunteer to hold the settlement conference. Indeed, that was a fairly regular occurrence. This obviously is not possible in a jurisdiction (or courthouse) where there is only one magistrate judge. Particularly when the trial will be nonjury, litigants may prefer to engage a private mediator rather than having the trial judge participate in settlement discussions.

Seventh, scheduling or other logistical considerations may be a consideration. Absent extraordinary circumstances, a judge will hold the settlement conference at the courthouse, which may not be the most convenient site. Busy trial judges will, of course, try to accommodate the schedules of counsel and their clients, but this may not always be possible. With a private mediator, there is likely to be greater flexibility. Thus, a private mediation can be held in a location far removed from the courthouse, or on a weekend or other unconventional time, if necessary. Mediation services that have multiple mediators are also better able to accommodate requests to schedule a session on short notice. Depending on the jurisdiction, access to such everyday tools as telephones, fax machines, printers, and the Internet, when counsel are not meeting with the mediator, may be markedly better than would be the case at a courthouse.

In sum, while settlement conferences and mediations share many similarities, there also are significant differences. Counsel and their clients should carefully evaluate their goals and needs to select the dispute resolution mechanism most likely to be productive in their case. 

Hon. Frank Maas (Ret.)

The author served for 17 years as a United States magistrate judge for the Southern District of New York.