The name of the game is movement: Concession seeking in judicial mediation of large money damage cases

Abstract

There has been little examination of the work of judges as mediators. This article addresses a much‐neglected but distinctive and increasingly prevalent kind of mediation work: mediation of large money damage cases by acting and former judges. The study finds that public and private judge‐mediators routinely encounter certain obstacles to settlement and develop specific skills for addressing them. The research also identifies several key differences between the problems, tasks, and alternatives of judicial mediation in the public courts versus in private cases.

Pursuing “Deep Pockets”

“…The JM in this perspicuous mediation utilized several concessionseeking devices, which have recently been identified as used by judges in other judicial mediations to overcome certain recurrent settlement obstacles (Burns 1998(Burns , 2000(Burns , 2001. These recurrent settlement obstacles and the devices employed to address them exhibit interactionally organized "family resemblances" or "affinities" (Wittgenstein 1953, par.…”

“…This article considers how the civil litigation and mediation process work in practice and highlights the interactional and discursive practices by which settlement activities are coordinated and managed (Burns 1998(Burns , 2000(Burns , 2001Greatbatch and Dingwall 1989, 1994Greatbatch, Dingwall, and Ruggerone 1998;Maynard 1984). The research examines settlement work in a perspicuous large money damage lawsuit involving a judicial mediator (JM) and complex insurance issues.…”

“…The JM also learns that because of the coverage position taken by Deep Pockets, it has not made any offer to settle the case prior to the mediation (cf. Burns 1998Burns , 2000, on "no liability/ no offer").…”

Mediator Style and the Question of “Good” Mediation: A Call for Theoretical Development

“…It is no secret that the empirical research that describes what mediators actually do presents a very confusing and contradictory picture of mediation practice (e.g., Alfini, ; Burns, , , 2004; Bush, ; Cobb, ; Cobb & Rifkin, ; Della Noce, , ; Dingwall, ; Donohue, ; Garcia, , , ; Greatbatch & Dingwall, , 1994, ; Heistercamp, ; Kolb, ; Kolb & Associates, ; Phillips, ; Silbey & Merry, ; Stewart & Maxwell, ; Tracy, Spradlin, Folger & Jones, ). Some of the behaviors described in the research run counter to the expressed norms of good mediator behavior in the field (see, e.g., Alfini, ; Bernard, Folger, Weingarten & Zumeta, ; Cobb, ; Cobb & Rifkin, ; Dingwall et al., ; Folger & Bernard, ; Greatbatch et al., ; Kolb & Associates, ) and some are in direct contradiction to each other (Bush, ; Della Noce, , , ).…”

Judicial settlement‐seeking in parenting disputes: Consensus and controversy

“…Academics tend to be critical of the practice (for example, Menkel-Meadow, 1985;Tornquist, 1989;Resnik, 2000), while settlement-seeking judges have defended their work in print (Brazil, 1987;Hogan, 1991;Baer, 2001). A leading empirical study was conducted by Stacy Burns, who conducted ethnographic observations of judicial mediations in tort cases (Burns, 1998(Burns, , 2000(Burns, , 2001. Raines and O'Leary (2000) contributed an interview-based comparison of judicial and non-judicial settlement-seeking in Environmental Protection Authority (EPA) enforcement hearings.…”