What Difference Does a Robe Make? Comparing Mediators with and without Prior Judicial Experience

The use of mediation to resolve commercial and employment disputes has greatly increased over the past twenty‐five years. Among the effects of this increase has been a substantial growth in the number of former judges now serving as mediators of such disputes. Indeed, a glance at the rosters of some of the major mediation providers shows that between 40 percent and 60 percent of their mediators are former judges.¹

This influx of former judges into the mediation ranks raises several questions that we address in this article:

1. Are former judges achieving success as mediators of commercial and employment disputes and, if so, why?

2. What are the characteristics and skills of those former judges who have succeeded as mediators?

3. Do former judges succeed as mediators for the same reasons as mediators who have not been judges?

4. What are the reasons why some former judges have not succeeded as mediators?

In a prior study (Goldberg and Shaw 2007), we found that the most frequently cited reasons for mediator success involved the mediator’s ability to gain the confidence of the parties, albeit by a variety of different means, including

1. being friendly, likable, empathic;

2. possessing high integrity, as demonstrated by honesty, neutrality, trustworthiness, protection of confidences, etc.; and

3. being smart, well prepared, and/or familiar with the relevant contract or law.

We also found that the mediators’ confidence‐building attributes were cited by respondents more frequently to explain mediator success than were the skills that mediators used to bring about agreement.² Similarly, we found that the absence of confidence‐building attributes — particularly a lack of integrity — was more often cited by respondents to explain a lack of mediator success than was a lack of mediation skills. Only four former judges, however, participated in our prior study, too few to determine whether the reasons for the success of former judges were the same as for nonjudges. This study is an attempt to answer that question.

Our study sample comprised twenty‐eight former judges with active mediation practices. (Four of the former judges had participated in the prior study; all data pertaining to them was removed from the nonjudge study database and placed in the database of mediators who had been judges.) Participants in this study, as in our prior study, were selected on the basis of their success in the mediation marketplace, as demonstrated by their having been selected to mediate a large number of disputes. Twenty‐four of the twenty‐eight judges had mediated more than one hundred disputes, three had mediated between fifty and one hundred disputes, and one had mediated between twenty‐six and forty‐nine disputes. (See Table One for a description of the mediators.)

The disputes mediated by the former judges consisted almost entirely of commercial, employment, and personal injury matters. The majority of the former judges were aged 60 to 69; eight were older than 70, and three were younger than 60 years of age. Twenty‐three of the mediators were male and five were female, which is essentially the same gender ratio as the federal judiciary.³ The mediators were based in nine different states; almost half were based on the West Coast.

We asked each of the mediators to provide us with the names of lawyers who had represented disputants in six different mediations that the mediator had conducted for a total of twelve lawyers per mediator. Some of the mediators provided more names than we had requested, with the result that we were given the names of 380 lawyers who had represented parties in disputes mediated by the twenty‐eight mediators.⁴

We sent each of the 380 lawyers a letter stating that a named mediator had identified him or her as having been counsel for one of the parties in a recent mediation conducted by that mediator. We asked each recipient of the letter to respond to two questions, with the assurance that we would not share those responses with the mediator involved:

Of the 380 lawyers to whom this letter was sent, 291 responded, for a response rate of 77 percent. The number of responses per mediator varied from eight to fifteen; the average was slightly above ten.

We received 60 percent (175 of 291) of the responses in written form; 40 percent responded by telephone. We found no significant differences in telephone responses compared to written responses.

We coded the responses to our questions into twenty‐one skills/attributes that we then grouped into three broad categories: confidence‐building attributes (those mediator attributes that enable a mediator to gain the trust and confidence of the parties), evaluative skills (the mediator’s ability to encourage agreement by evaluating a party’s likelihood of achieving its goals outside of mediation, typically a prediction of the likely outcome if the matter were decided by a court or an arbitrator), and process skills (those skills by which a mediator seeks to encourage agreement, not including evaluative skills). The categories that we used to code the data are shown the first column of Table Two. These are the same categories that Stephen Goldberg and Margaret Shaw used in the earlier study (2007) with one exception: we added a code for the comment that the respondent believed that the mediator’s success was a result of his or her having been a judge.

Goldberg and Shaw coded each response separately, using the same methods that were used in the previous study (Goldberg and Shaw 2007). Approximately 80 percent of the independent codes matched; where there were differences, we discussed and resolved them.

We analyzed the data with a view to answering three questions.

1. Which mediator skills or attributes did advocates regard as most important for the success of mediators with prior judicial experience?

2. What, if any, were the differences in the skills and attributes most important for the success of mediators with prior judicial experience, compared to the skills and attributes we previously found (Goldberg and Shaw 2007) to be most important for the success of mediators without prior judicial experience?

3. Were the reasons for the success of mediators with prior judicial experience the same or different from the reasons for the success of mediators without prior judicial experience?

The unit of data that we used to analyze these questions was the mediator. We coded each interview for the presence or absence of each of the twenty‐one skills/attributes. We then averaged across all the interviews associated with each mediator. This mediator average can be interpreted as the proportion of a mediator’s respondents who mentioned a particular skill or attribute when describing that mediator.

Before we discuss the reasons for mediator success, we must first discuss the meaning of “success” for purposes of this article. As previously noted, mediators were selected for this study on the basis of their success in the marketplace. We sought, however, to determine the reasons why they were successful (or not) in assisting disputing parties to resolve their disputes. Our initial question to the respondents was “What personal qualities, skills, or techniques did [the named mediator] demonstrate that helped move the parties toward settlement? (emphasis added). Our second question was “How would you account for the [named mediator’s] success?” Hence, although the mediators in this study were selected for their success in the marketplace, we asked the respondents about the mediators’ success in moving disputes toward settlement. As a result, the data analyzed here deal with the reasons for mediators’ success in resolving disputes.

As shown in Table Two, among the most frequently cited behaviors related to the success of mediators with prior judicial experience was the mediator’s ability to gain the confidence of the parties. This was accomplished by various means. First on the list, cited by an average of 60 percent of the mediation advocates, was that the mediator was “smart, a quick study, well‐prepared, understood the issues, and/or knew the relevant law.” Some comments of this type were:

The next most frequently cited reason for mediator success, referred to by an almost equally high average of 59 percent of the mediation advocates, was that the mediator was “friendly, empathic, etc.” Examples of these comments include:

Rounding out the top three most frequently cited reasons for mediator success, referred to by an average of 51 percent of the mediation advocates, was that the mediator had high integrity, as demonstrated by his or her “honesty, neutrality, fairness, trustworthiness, protection of confidences,” etc. Respondents wrote:

The remaining confidence‐building attribute, a perception that the mediator benefited from his/her “prior judicial experience,” was cited by 48 percent of the mediation advocates. Examples of these comments include:

The results reported in Table Two also indicate that the various process skills used by mediators to bring about agreement were, in general, cited by respondents much less frequently than were the mediators’ confidence‐building attributes. The only mediator skills cited as frequently as some of the confidence‐building attributes were “patience/persistence” (referred to by an average of 49 percent of the mediation advocates) and “providing useful evaluations or reality‐testing” regarding the likely outcome of the dispute in court (46 percent).

Some comments relating to the mediator’s patience and persistence include:

Comments regarding the mediators’ provision of useful evaluations or reality testing regarding likely outcomes in court include:

The respondents also valued the following skills/attributes:

• “asking good questions; listening carefully to the responses” (23 percent): “The way he listens and communicates with you, you get the confidence that you’re being heard, and that he’s going to convey to the other side in a positive manner what you’re trying to convey” and “He’s a listener; he will be respectful; the client gets the dignity that some judge‐like person is giving them; and they like feeling like they have a case and he’s willing to listen to them.”

• “diplomacy and tact” (21 percent): “He has the rare quality of kindness and graciousness even when telling parties of the harsh realities . . .,”“He is not afraid to tell big executive‐types that they may lose, but he does so in a nonthreatening way,” and “Judge X artfully pointed out the weaknesses in the positions while making the parties feel he understood their plight.”

• “being calm and/or deliberate” (13 percent): “Judge X has a low‐key demeanor which helps keep the parties calm and focused on settlement.”

• “proposing solutions/being creative” (12 percent): “Judge X is adept at helping litigants think outside the box and beyond settlement structures that they may have envisioned when first embarking on mediation,” and “He always has creative ideas about how to make a settlement that isn’t just about cash . . . ”

• “understanding people and/or relational dynamics” (11 percent): “He has emotional intelligence. He’s able to read people, and decipher what’s really going on. He picks up on [the fact that] what they’re saying isn’t necessary really what they mean,” and “He correctly assessed the roles and potential contributions of each member of the negotiation team, and effectively used them at the appropriate time.”

• “being candid/firm as necessary” (10 percent): “He maintains control,  . . . which makes him successful at reaching positive settlements,” and “He has a certain decisiveness or willingness to push one or both parties.”

• “using humor” (10 percent): “Judge X has a . . . great sense of humor. This disarming style rids the room of tension and often creates an atmosphere of productivity, if not cooperation.”⁶

A comparison of the reasons for the success of mediators with judicial experience compared to those mediators without such experience, also set out in Table Two, shows both similarities and differences (Goldberg and Shaw 2007).

The most striking similarity between former judges and nonjudges is that the confidence‐building attributes were among the most frequently mentioned for both as reasons for their success. The main difference between them with respect to confidence building attributes was that “being smart/a quick study/well‐prepared/knowing the relevant law”— while important for both judges and nonjudges — was significantly more important for judges. We initially thought this might be a function of the importance attached by the respondents to the former judge knowing the relevant law, but a closer study of the responses coded in this category showed that only 18 percent (27 of 153) referred to the judge’s knowing the law, while 82 percent referred more generally to the judge being “smart/well prepared/ a quick study/understanding the issues in dispute.”

In addition to the confidence‐building attribute similarities and differences between former judges and nonjudges, Table Two shows similarities and differences in the evaluative and process skills viewed by advocates as important for success. One striking similarity is that the two skills most frequently cited as important for judges were also two of the most important skills for nonjudges: “patience/persistence” and the capacity to provide “useful case evaluations.” Another similarity worth noting is that respondents rated “diplomacy/tact” as a highly valued skill for both former judges and nonjudges.

The differences between former judges and nonjudges in the reasons for their success are equally striking. First, while there were a few process skills that the advocates viewed as more important for judges than for nonjudges, when we combined all the process skills into a single category,⁷ the possession of process skills was significantly more important to the success of nonjudges than it was to the success of former judges.⁸ Conversely, the ability of the mediator to provide a useful case evaluation, while important to the success of both judges and nonjudges, was, as illustrated in Table Two, significantly more important for judges (46 percent) than nonjudges (30 percent).⁹

In general, then, it appears equally important to the success of both former judges and nonjudges that they gain the confidence of the parties. The means by which each succeeds in gaining such confidence are similar, though, as the data in Table Two show, being smart/a quick study/well prepared was significantly more important for judges than nonjudges. Additionally, former judge mediators possess one confidence‐building attribute unavailable to the nonjudge mediators: prior judicial experience, which, as Table Two indicates, was seen as important by almost half of those respondents who had experience with former judges.

Finally, evaluation skills were, in general, significantly more important to the success of former judge mediators than of nonjudge mediators. Process skills, on the other hand, were significantly more important to the success of nonjudge mediators than they were to the success of former judges.

We now turn to the question of whether all successful former judge mediators are alike or whether different former judge mediators succeed for different reasons. We also consider the same question for nonjudge mediators. These are important questions for both potential mediators and for mediator trainers. For the potential mediator, it is important to know whether he or she should conform to a single model of successful mediation; for the trainer, it is important to know whether training can be adapted, at least in part, to the strengths and weaknesses of the individual trainee or whether training should uniformly emphasize certain skills.

To answer these questions we standardized the ratings for each attribute separately within the set of judge and nonjudge mediators. Then we summed across all five attributes and restandardized to create an overall score.¹⁰ We then arranged the judge mediators from those receiving the highest scores to those receiving the lowest scores according to their overall across‐attributes score, as shown in Table Three, and nonjudge mediators according to their overall across‐attributes score, as shown in Table Four.

Standardizing the mediators’ scores on each skill and attribute enabled us to

• compare a single mediator’s scores on each of the five skills and attributes in order to see on which skill or attribute he or she was ranked strongest and

• compare different mediators on the same skill or attribute.

Table Three illustrates the relative standing of each of the twenty‐eight former judge mediators. Relative standings are based upon each mediator’s standardized score on each of the attributes and skills: friendliness/empathy, honesty/integrity, intelligence/preparedness, process skills, and evaluative skills.

The symbols in Table Three indicate, for each skill or attribute, whether the mediator was at or above the mean for all twenty‐eight mediators on the skill or attribute (+), at least one standard deviation above the mean (++), or below the mean (0). For example, Mediator M’s standardized score was one standard deviation above the mean on both friendly/empathic and honesty/integrity. He or she scored at or above the mean on process skills and below the mean on intelligence/preparedness and evaluation skills.

We found no significant correlation between a mediator’s gender and that mediator’s overall score or that mediator’s scores on any of the five skills or attributes. Female mediators were not cited significantly more or less often for being friendly and empathic than were male mediators, nor were female mediators cited significantly more or less often for their process or evaluative skills than were their male counterparts. Similarly, West Coast mediators, who made up almost half of the sample of former judges, were statistically indistinguishable from mediators elsewhere.

Table Three shows that successful mediators have different profiles — no two are exactly alike. To be sure, eleven of the fourteen mediators whose ratings placed them in the top half of Table Three were more than one standard deviation above the mean on at least one of the confidence‐building attributes. Apart from that, however, no single profile characterizes every successful mediator in our study, much less those mediators whose overall ratings were the highest.

Some of the mediators with the highest overall scores were rated as outstanding — more than one standard deviation above the mean — in the categories of being “smart/well prepared” and possessing excellent “process skills or evaluative skills,” others were rated as outstanding for being “friendly” and possessing “high integrity” or excellent “process skills,” while still others were rated as outstanding in the categories of either “friendliness,”“integrity,”“process skills” or “evaluative skills.”

At the same time, the highest ranking mediators were not outstanding with respect to all skills and attributes. Of the fourteen mediators whose overall ranking was above the mean, only five were more than one standard deviation above the mean on more than one skill or attribute. In sum, there is no single formula by which former judges achieve mediation success. Although it is important — perhaps essential — for a successful mediator to have the parties’ confidence, different mediators achieve mediation success based on the possession of different skills and attributes.

Table Four sets out, by way of comparison with the former judges, the skills/attributes profiles of the twenty‐two nonjudge mediators who were the subjects of our previous study (Goldberg and Shaw 2007).¹¹

The patterns in Table Four are similar to those we pointed out in Table Three. Eight of the eleven nonjudge mediators who received ratings that place them in the top half of Table Four were more than one standard deviation above the mean on one of the confidence‐building attributes, but apart from that no single profile characterized those mediators or the other successful nonjudge mediators (Goldberg and Shaw 2007).

The data indicate that, from the perspective of advocates who represent clients in a mediation, the most important attributes of successful mediators with prior judicial experience are those that build the disputants’ confidence in the mediator. These are:

• “being smart, well prepared, understanding the issues, knowing the relevant law”;

• “being friendly and empathic”;

• “being honest and having integrity”; and

• “having prior judicial experience.”

From the same advocates’ perspectives, the most important skills are:

• “proceeding with patience and persistence,”

• “providing useful evaluations and/or ‘reality checks’,”

• “asking good questions and listening carefully to the responses,” and

• “being tactful/diplomatic.”

We also found that the advocates attributed the success of different former judges to different combinations of skills and attributes. The sole characteristic shared by nearly all the mediators whose scores placed them in the top half of the sample was that each was cited for his or her confidence‐building attributes by a particularly high proportion of the advocates who commented on them.

We found two key similarities between successful mediators with prior judicial experience and successful mediators without such experience. They are:

• Possession of one or more of the confidence‐building attributes was seen as important for members of both groups.

• There is more than one road to success — successful judge and nonjudge mediators exhibited different combinations of confidence‐building attributes and skills.

The central difference between former judges and nonjudges was that possession of process skills was more frequently cited as important for nonjudges than for former judges, while evaluation skills were more frequently cited as important for former judges than for nonjudges. That being said, there are certain process skills that were viewed as important for both, particularly patience/persistence, asking good questions/listening to the responses, and being tactful/diplomatic.

Substantial research has been conducted on the role of third parties in conflict management and dispute resolution since John Thibaut and Laurens Walker (1978) proposed a theory to explain disputants’ preferences among dispute resolution procedures.¹² Most recently, an American Bar Association (ABA) study identified four factors to be “important to mediation quality” (ABA Section of Dispute Resolution 2007).

• preparation for mediation by the mediator, parties, and counsel;

• case‐by‐case customization of the mediation process;

• analytical assistance from the mediator; and

• persistence by the mediator.

There is some overlap between the skills/attributes that we found to be important for mediator success and those identified in the ABA report. The overlapping attributes are preparation, analytical assistance (which we characterized as evaluation skills), and persistence.

Two differences between the ABA findings and our results merit discussion. Case‐by‐case customization of the mediation process, which we called being “flexible, capable of varying process to fit situation” was mentioned by fewer than 10 percent of the respondents in our study as important to mediation success for both former judges and nonjudges. To be sure, the advocates in our study may not have worked more than once with the mediator whom they were describing. As a result they may not have had a basis in experience for observing whether this mediator varied the process to fit the situation.

The second difference between our study and the ABA study is quite puzzling. Apart from identifying preparation by the mediator (as well as by parties and counsel) as important to mediation quality, the ABA study contains no reference to what we called the mediator’s confidence‐building attributes: integrity/neutrality/fairness, or friendly/empathic/likable/respectful, etc. In view of the frequency with which advocates in our studies credited these attributes as helpful to both former judge and nonjudge mediators in moving a dispute toward settlement, we found it odd that this attribute was not identified as important in the ABA study.¹³

Furthermore, the importance of third‐party integrity/neutrality/fairness and friendly/empathic/likable/respectful is well documented in the justice literature. For example, a key finding of some seminal research on why people obey the law is that people’s desire that the legal system treat them with dignity is more motivating than is their fear of being punished for disobeying the law, their beliefs that the courts and police are usually fair, or their interest in winning or losing (Tyler 1990).

Similarly, interactional justice, or how people are treated by their organizations, is a key concern for people in organizations. Robert Bies (2005: 87) has documented a long list of organizational outcomes ranging from organizational commitment to occupational stress to consumer complaint behavior that are affected by perceptions of interactional justice. In our own previous research investigating grievants’ experiences of the differences between mediation and arbitration procedures, interactional justice (defined as the degree of respect with which the third party treated the grievant) was a key factor in the respondents’ judgment that mediation was a fairer procedure than arbitration (Shapiro and Brett 1993). Thus, our finding in this study that confidence‐building attributes are key to mediator success is consistent with a large body of research on third parties in the justice literature.

We now turn to our third research question: why do some mediators fail to help parties achieve settlements? What do they do that advocates believe is counterproductive to settlement and would lead those advocates not to use that mediator again?

To answer these questions, we sent each of the 254 lawyers who responded to our questionnaire about a successful mediator with judicial experience a second questionnaire in which we asked

In this communication to mediation advocates, we did not refer to the mediator who had originally provided us with the respondent’s name. Additionally, we requested that the respondent not report the name(s) of the mediator(s) whose behavior was described as counterproductive to settlement. Of the 254 advocates to whom the “counterproductive” questionnaire was sent, 117 responded for a response rate of 46 percent.

After reading all the responses, we determined that they could be coded by using antonyms of the same code categories that had been developed for the “successful mediator” study. For example, the code “friendly/empathic” as applied to successful mediators became “not friendly/self‐absorbed/not empathic” as applied to unsuccessful mediators. Similarly, the successful mediator skills/attributes groupings — confidence‐building attributes, process skills, and evaluation skills — become lack of confidence‐building attributes, lack of process skills, and lack of evaluation skills.¹⁵

Sixteen percent of the respondents reported that they had never had a negative experience with a former judge; 84 percent described a former judge mediator who they thought had engaged in counterproductive conduct and/or whom they would not use in future mediations.¹⁶ As shown in Table Five, the two most common criticisms of the unacceptable mediator with judicial experience were that the mediator “lacked integrity” (33 percent) and the mediator was “unfriendly, self‐absorbed/self‐important, and/or lacked empathy” (32 percent).

The criticisms of former judge mediators who “lacked empathy” and appeared more interested in themselves than in the parties included:

Some of the comments about the mediator’s “lack of integrity” were:

On two occasions, the mediator stepped out of his neutral role and offered an unsolicited opinion about the value of the case. A slightly smaller proportion (24 percent) of the respondents commented that the mediator was not “smart or well‐prepared, didn’t understand the issues or didn’t know the applicable law.” In examining these responses more closely, we noticed, as we had with respect to the reasons for judge success, that only 17 percent (five of twenty‐nine respondents) referred to the judge’s knowing the law, or in the case of the unsuccessful mediator, not knowing the law, while 76 percent referred to the judge being unprepared or not understanding the issues, and 7 percent commented that the judge was not smart/a quick study. Examples of these criticisms include:

A substantial proportion (15 percent) of respondents suggested that the former judge’s lack of success as a mediator was actually traceable to his or her experience as a judge.

The two process skills weaknesses that were the basis of the most criticism were that the mediator was not “forceful in seeking a settlement, but just went through the motions of mediation,” doing little more than carrying messages back and forth between the disputing parties, and the mediator showed a “lack of patience/persistence.” Each of these was mentioned by 23 percent of the respondents.

Comments relating to not being sufficiently forceful included

Comments relating to a lack of patience/persistence included:

Only two other process skill weaknesses were commented on by more than 5 percent of the respondents. They were that the mediator “lacked tact/diplomacy” (16 percent) and that the mediator “did not understand people/relational dynamics” (11 percent).

Comments about the mediator’s “lacking tact/diplomacy” included:

Comments about the mediator not “understanding people/relational dynamics” included:

A comparison of the results illustrated in Table Five (Reasons for Lack of Success) with those illustrated in Table Two (Reasons for Success) shows the former to be almost a mirror image of the latter. Just as empathy, integrity, and preparedness were most often mentioned as important to the mediation success of former judges, the absence of these confidence‐building attributes were the leading causes of their lack of success. Similarly patience/persistence and good evaluation skills were among the most important explanations of success, and their absence were among the most frequently mentioned reasons for lack of success.

We found two exceptions to the parallelism of the results of the two studies noted above. First, we found that “lack of effort” (not firm/forceful; just went through the motions; just delivered messages) was the most frequently mentioned process failure for former judges, while its Table Two opposite (candid, firm as necessary) was less important as a positive attribute. The reason for this, we suspect, is that people take it for granted that the mediator will be as forceful as necessary to encourage settlement; hence, they do not comment when the mediator exhibits that behavior. The absence of mediator forcefulness, however — just going through the motions — is so disappointing that it is remarked upon.

The other exception to the parallelism we found between the two sets of results was that “asking good questions, listening carefully to the responses” was a frequently mentioned positive quality of successful former judges (23 percent), while the absence of this quality was rarely mentioned (5 percent) as a reason for the lack of success of former judges. We have no clear explanation for this difference, other than that some of the respondents’ comments regarding the mediators’ failure to ask good questions and listen carefully to the responses may have been swept up in some of the other categories, particularly their perceived lack of empathy.

Another point worth noting in comparing Table Five to Table Two is that 48 percent of the respondents viewed judicial experience as contributing to mediation success, while only 15 percent commented that judicial experience detracted from mediation success. Although the Table Two percentages are generally higher than the Table Five percentages, this difference is particularly striking and suggests that prior judicial experience can be an important factor in achieving success as a mediator.¹⁸

A comparison of the reasons cited for the lack of success of former judges compared to the reasons cited for mediators without judicial experience (Goldberg and Shaw 2007), also set out in Table Five, shows that although the percentages differ, a lack of confidence‐building attributes — particularly a lack of integrity and a lack of empathy — was cited as one of the leading causes of a lack of success for both judge and nonjudge mediators.

Table Five also shows that a “lack of evaluation skills” was cited significantly more often as a cause of lack of success for mediators who were former judges than it was for mediators with no judicial experience. This is not surprising. The possession of evaluation skills was cited as more important to the success of judge mediators than it was to the success of nonjudge mediators (Table Two); hence, we would expect that a judge’s lack of these skills would more likely be seen as diminishing his or her effectiveness than it would for a nonjudge.

Finally, Table Five illustrates that the “failure to be a firm/forceful mediator” was cited as an important factor in explaining the lack of success of both judges and nonjudges. The absence of most other process skills was rarely cited as a cause of mediator failure. When, however, the absence of a process skill was mentioned by more than 10 percent of the respondents, it was significantly more likely to be mentioned as a cause of judge failure than of nonjudge failure.

As we noted above, however, process skills in general were significantly less likely to be mentioned as a reason for the success of judges than of nonjudges. This finding poses an interesting conundrum. If process skills are less important to the success of judges than of nonjudges, why is the absence of some process skills more important in explaining the lack of success of judges than of nonjudges? We suspect that although judges are less often valued for their process skills than are nonjudges, a glaring absence of the most important of these process skills — those dealing with interpersonal relationships — may be more prevalent among judges than nonjudges. This may be, as a number of respondents suggested, because some former judges, while on the bench and possessed of decisional authority, may have slighted their interpersonal skills and may carry that lack of attention to interpersonal skills into the mediation process. Thus, although process skills were generally less important to the success of judges than they were to the success of nonjudges, the absence of process skills dealing with interpersonal relationships was viewed as sufficiently harmful to the mediation process to explain the lack of success of some former judges.

Some support for this explanation is found in Table Five, which shows that 16 percent of the respondents viewed unsuccessful judges’ “failure to be tactful/diplomatic”— an important element in developing a positive interpersonal relationship — as a factor explaining their lack of success. Not a single unsuccessful nonjudge mediator was criticized on these grounds. Similarly, no unsuccessful nonjudge mediator was criticized for his/her “failure to understand people/interpersonal relationships,” whereas 11 percent of the respondents cited this as a cause of the lack of success of some former judges. And, although we treated “friendliness/empathy” as a confidence‐building attribute, rather than a process skill, its absence, too, can be seen as an interpersonal weakness — and judges were significantly more often cited for a lack of empathy than were nonjudges.

In sum, less may be expected of judges when it comes to process skills, but a lack of those process skills involving interpersonal relationships may be more likely to occur among judges than among nonjudges and may also explain our finding that a lack of interpersonal process skills was even more likely to lead to judge failure than to nonjudge failure.

Many former judges are achieving success in the marketplace as mediators. Former judges are increasingly present on the mediation panels of the major mediation providers, and nearly all the former judges in this study had mediated more than one hundred disputes. In examining the reasons why those judges who are successful in the marketplace are also viewed as successful by advocates who have mediated with them, we found, as we had in our prior study of mediators without prior judicial experience, that a — if not the— core element in achieving dispute resolution success was the mediator’s ability to establish a relationship of trust and confidence with the disputing parties.

This study also shows that although certain process skills were viewed as important to the success of both judges and nonjudges, in general, process skills were significantly more important for nonjudges than for judges. The capacity to provide useful case evaluations, on the other hand, was significantly more important for judges than for nonjudges.

We also found in this study that for judges, just as for nonjudges, different mediators can succeed on the basis of different skill sets. Although evaluation skills were important for judges in general, some judges’ success appears to rest in substantial part on their process skills. Of the judges who placed in the top half of the overall judge ratings (Table Three), there were as many judges rated as outstanding for their process skills as there were judges rated outstanding for evaluation skills. (Nearly all those in the top half were rated outstanding on one or more of the confidence‐building attributes.)

That portion of the current study that examines why some mediators were not successful reinforces the conclusions of our prior study regarding the importance of confidence‐building attributes. For both judges and nonjudges, the absence of at least one of the confidence‐building attributes was viewed as a major reason for a lack of success.

Perhaps the most interesting finding of the current study is that although process skills were cited by the respondents significantly less often to explain the success of judges than of nonjudges, the absence of process skills was cited significantly more often in explaining why some judges, as compared to nonjudges, did not succeed as mediators. The absence of important interpersonal process skills — tact/diplomacy, understanding people/relational dynamics, being friendly/empathic — appears, from the respondents’ comments, to be more common among judges than nonjudges, and that absence may serve to offset the advantage of prior judicial experience in gaining the confidence of the parties.

It is clear that the judicial experience of a former judge is often an important factor in his or her capacity to gain the trust and confidence of the disputing parties. Judicial experience is also viewed by a substantial number of disputants as providing the capacity to evaluate the strengths and weaknesses of each party’s legal position — a capacity widely viewed as important to moving a mediation toward settlement. The negative side of prior judicial experience, however, is that a lack of process skills is even more damaging to a former judge’s perceived success in dispute resolution than it is for the nonjudge. The former judge who lacks such important interpersonal skills as empathy, tact, and an understanding of interpersonal dynamics may not succeed as a mediator even if he or she possesses strong case evaluation skills. On the other hand, the former judge who cultivates his or her process skills, who is capable of gaining the trust and confidence of the parties, and who has strong case evaluation skills, should have little difficulty succeeding as a mediator.

The nonjudge mediator does not have the credential that judicial experience provides for gaining the confidence of the parties and appearing capable of providing useful case evaluations. The lack of this credential does not, however, prevent nonjudge mediators from achieving success. Nonjudge mediators have available to them other means for gaining the parties’ confidence — being friendly and empathic, possessing high integrity, being smart/well prepared, and understanding the issues. Nor is the possession of case evaluation skills the sole province of former judges. To the contrary, when we combined the profiles of both judges and nonjudges, three of the ten mediators who were regarded as possessing outstanding case evaluation skills were nonjudges.¹⁹

Finally, the message of these studies for lawyers or others who represent parties seeking a mediator is that it would be an error to assume that all former judges possess strong case evaluation skills and weak process skills or that all nonjudges possess strong process skills and weak case evaluation skills. As these studies show, some former judges have excellent process skills, and some nonjudges have excellent case evaluation skills. Furthermore, neither of these skills may be sufficient to achieve a resolution of the dispute if the mediator is not successful in gaining the confidence of the parties — a key attribute for both judges and nonjudges. Accordingly, we suggest that rather than to categorically select — or exclude — either judges or nonjudges from a list of potential mediators, counsel should first look for mediators who possess one or more of the important confidence‐building attributes. Beyond that, counsel should consider the extent to which process skills and/or evaluative skills are important in overcoming the barriers to settlement in the particular case that he or she is handling. In thinking about this question, counsel should remember that both those mediators who are former judges and those mediators without judicial experience may possess strong process skills and/or strong evaluation skills, and that even a mediator with strong evaluation skills or strong process skills may not succeed in moving a dispute toward settlement if that mediator lacks core interpersonal skills.

We wish to acknowledge the invaluable assistance of Melissa Cryder, who sent out more than three hundred letters to potential respondents and conducted more than two hundred oral interviews. Her efforts provided the data on which this research is based. We also want to thank the mediators who provided us with the names of advocates for whom they had mediated, and the advocates who took the time to respond in a thoughtful fashion to our questions.