By: Donald L Swanson
Hypothetical: Your client in a complex Chapter 11 case has a dispute on a core issue with another party. The disputing parties decide that mediation might help resolve their dispute, and they can choose, under local rules, between two types of mediators:
- a private mediator (i.e., a lawyer with extensive bankruptcy experience and extensive mediation experience), who charges several hundred dollars per hour; or
- a judicial mediator (i.e., an experienced bankruptcy judge with extensive mediation experience), who will mediate the dispute at no charge—such a service is part of the judge’s judicial responsibilities.
Question: Which type of mediator are you going to choose?
Hmmm . . . let’s see . . . that’s a tough one.
But after wrestling and struggling with all the variables, here’s guessing you ultimately choose the no-charge judicial mediator over the several-hundred-dollars-per-hour lawyer [sarcasm is intended].
Another Choice
But here is a less-obvious choice. Do you want:
- a judicial mediator who serves as a bankruptcy judge in the same district where the bankruptcy is pending, which happens to be the same district where you regularly practice; or
- a judicial mediator from a different district where you appear less frequently?
Preferring A Judicial Mediator from a Different District
I believe most practitioners who think-through this choice will prefer a judicial mediator from a different district, where the practitioner appears less frequently. Here’s why.
First, judging and mediating are two different jobs with differing dynamics:
- a judge decides; whereas
- a mediator tries to coax or influence or persuade or even cajole or pressure the parties toward decisions that resolve the dispute.
It seems awkward to, (i) appear before a judge one day in the role of a supplicant (i.e., “Please rule my way”), (ii) appear before that same judge the next day representing a decider (i.e., a mediating party), and (iii) then the next day appear back before that same judge in the role, once again, of a supplicant.
- It’s the Seinfeld problem: “Worlds are colliding!”
In the role of a decider, a judge has no need to suffer foolish positions lightly or gladly. The judge simply rejects the foolish position.
A judicial mediator, by contrast, must suffer along with foolish positions. While the judicial mediator can try to explain the foolishness, can try to show why the deciding party is missing the boat, and can urge the deciding party to take a different position, the judicial mediator is empowered do nothing more than that.
And that’s a problem for the attorney representing a foolish-position party:
- the concern is that the judicial mediator’s impression of the attorney for the foolish-position party will bleed over into the attorney’s hearing, tomorrow, as supplicant for a different client before that same judge.
I know. I know. Such concerns are unfounded because every judge in every context will sort out, correctly, all those extraneous and irrelevant factors.
But the practitioner’s fear is still real . . . and a substantial concern.
Conclusion
So . . . it’s better to get a judicial mediator from a different district where the attorney for the mediating parties practices less frequently, than to get one from the home-court.
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