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.

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