Last week, I wrote an article about how some high-priced mediators may not be worth the money in many cases and how free and discounted mediators are perfectly sufficient in most circumstances. In my experience, however, the best person who can potentially help parties settle a case is the judge presiding over a matter. Some judges hold regular settlement conferences at which they personally preside over settlement discussions and assist parties in resolving cases. Although having judges preside over settlement conferences requires a substantial investment of judicial resources, it can help reduce caseloads and may save courts resources in other ways.
Having a judge preside over a settlement conference is always going to be different than having a private mediator or even a court officer other than a judge preside over settlement discussions. Parties naturally have more reverence and solemnity during settlement discussions when the judge is presiding over a settlement conference since they know that this is the person who will be responsible for a case if the matter progresses.
In addition, the pomp and circumstance of having a judge preside over settlement conferences cannot be overstated. When parties enter a courtroom, it is different than entering a conference room or another setting in which settlement discussions normally take place. Moreover, since the judge is ordinarily sitting on the bench in judicial robes, more deference may be given to a judge who is presiding over settlement conferences than a private mediator or other court office that is attempting to mediate matters.
Only a few judges in the courts in which I practice personally preside over settlement conferences, but the results of such settlement conferences have been amazing. I have seen judges accomplish the impossible during settlement conferences, and I am highly confident that matters which could never be resolved with private mediators were resolved by settlement conferences presided over by a judge.
Of course, some aspects of settlement conferences in front of judges make them more likely to lead to a resolution than others. For one, settlement conferences with judges are more likely to be successful if they are in person rather than remote. The parties are far more likely to be influenced by the setting and ceremonial aspects of the judiciary if they are physically present in a courtroom or other judicial setting than if they are at home attending the settlement conference through Zoom. The more judicial officers involved in the settlement conference the better. For instance, I know a few judges who use their bailiffs to summon parties in and out of the courtroom for conversations with the judge during settlement conferences, and this adds to the seriousness of the occasion. Also, the more a judge knows about a case, the better, and some judges before which I practice require the parties to list brief facts about a case before a settlement conference proceeds.
The amount of judicial resources spent by judges on settlement conferences is more than worth it. When a case resolves, it relieves a huge burden on the judiciary. After a case resolves, that case no longer needs to be managed, so conferences do not need to be scheduled to see if discovery and other deadlines are proceeding on track in a case. Moreover, when a case settles, a judge does not need to review and decide upon any dispositive or other motions that might be associated with the case. Courts might devote hours of work to deciding summary judgment motions and other matters, and saving this time can be a huge benefit of resolving cases early. Moreover, if cases really go the distance, they might go to trial, which is a huge drain on judicial resources.
Another reason why judges may want to hold settlement conferences is since this is a good way to interact with parties to a case rather than just counsel. Often, parties themselves need to be present at settlement conferences so that principals with settlement authority are on hand to decide upon issues. I think that judges might genuinely enjoy interacting with members of the public and having a judicial role that is more interactive. I have never been a judge or court officer, but I have to believe that judicial functions that do not involve interpersonal interaction are less fulfilling than those that do, and for judges who are elected, it can’t hurt to interact with the public.
All told, even though private mediators are great, there is often no substitute to having the judge presiding over a case holding a settlement conference to try to resolve a matter. Although this requires an expenditure of judicial resources, this effort is definitely worth it in the long run.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at firstname.lastname@example.org.
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