Massachusetts State House.
Boston Bar Journal

Wearing Two Hats: Being a Mediator and a Trial Judge

December 19, 2012
| Winter 2013, Vol. 57, #1

By Judge Judith Gail Dein

 Voice of the Judiciary

Dein_JudithIf you have had any cases in federal court, you have probably been asked at various times by the trial judge if your case is ripe for ADR (alternative dispute resolution), and if not now, when.  The Alternative Dispute Resolution Act of 1998 requires that each United States District Court authorize the use of ADR in all civil actions.  28 U.S.C. §§ 651 et seq.  In the District of Massachusetts, that means that you will have the option of going to mediation before someone who has contemporaneous experience both as a trial judge and as a mediator.  In my mind, this is the best of all worlds (and, as they say, this article expresses only the opinion of its author!).  I have had the honor of serving in these dual capacities since shortly after my appointment as a Federal Magistrate Judge in August 2000.  While the roles are very different, it has been my experience that what I have learned in one capacity carries over, and makes me even more productive, in the other.

Mediations in the District of Massachusetts presently are conducted by all the Magistrate Judges as well as by Edward Harrington, a Senior District Judge who added mediations to his docket in 2009.  Magistrate Judges also have an active role in civil cases filed in Federal Court.  Many times we are referred specific pre-trial matters from the District Judge presiding over a case.  In addition, we have our own dockets of civil cases over which we preside.  With the consent of the parties, Magistrate Judges have the authority pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73 to conduct all pre-trial proceedings as well as jury and jury-waived trials in any civil case in Federal Court.  This means that we each try a number of civil cases, both jury and jury-waived, each year, ranging from one-day slip and fall cases to multi-week securities litigation, and everything in-between.

When I was appointed to the bench, the ADR program was run by District Judge David A. Mazzone, with the assistance of a panel of volunteer lawyers.  Over time, Magistrate Judges were added to the roster of mediators and, with Judge Mazzone’s untimely death in October 2004, the volunteer panel was discontinued and the Magistrate Judges took the lead in conducting mediations.  When a case is scheduled for mediation, it is assigned either randomly or in accordance with the parties’ request, if possible.  The one caveat is that, except in extraordinary cases, we will not mediate any case in which we are the presiding judge or in which we may be referred pre-trial matters.

There is a real distinction between my role in cases in which I am serving as the mediator, and cases in which I am serving as the presiding judge.  As a mediator, I view my role as helping the parties reach a resolution that meets their needs as best as possible.  It is my responsibility to help the parties identify the real (sometimes as opposed to the “legal”) issues in dispute, and to help them define what they need to settle a case.  It is also my role to help them understand the litigation process, their various alternatives about how best to proceed, and the consequences of certain decisions.  I work as a negotiator, talking to each side separately, helping each side to understand that there usually are (at least) two sides to every story, and striving to identify a compromise that everyone can live with to his or her benefit.

So where do the “merits” of a dispute fit into a mediation?  And what do the parties mean by the merits?  If the parties mean what is “just,” that always fits into a mediation — it is the goal of the mediation to reach a resolution that is as fair as possible to all involved under the circumstances presented.  If the parties mean who will prevail at trial, while depending on the case that certainly may be a significant factor in a settlement, it is one that I am loath to predict.  As a mediator, I only have the very limited information that is provided to me by counsel and the parties, a snapshot that does not begin to address all the information or law that would be available at trial.  Nor do I have any sense of the witnesses, and how the information would be introduced at trial.  What I do have is the certainty that if you asked any trial lawyer if they have ever won a case they shouldn’t have won, they will proudly say yes.  Of course that makes the inverse true, have they ever lost a case they shouldn’t have lost . . . .

So why does being a trial judge help me be an effective mediator?  Obviously, as a trial judge, I do have some very practical experience with the litigation process which I can share with the parties.  I also have encountered many of the substantive areas of the law that come before me as a mediator.  More importantly, however, I think that as a trial judge I have experience in hearing how things actually sound in a courtroom.  A trial is very different than a summary judgment argument, and I can help explore with the parties how their theory of the case may resonate with the fact finder and what they really think they can accomplish in a trial.  Finally, and perhaps even most importantly, I bring to the parties in a mediation the assurance that their concerns are being heard and considered by a judicial officer.  The setting may not be as formal as a trial, but their side of the story is being considered as seriously.

And why does being a mediator help me be an effective trial judge?  On a very basic level, it reminds me continuously what our judicial system is all about.  Obviously while presiding over a case the information I have is limited by the rules of evidence, and the dispute, appropriately, is defined by the parameters of the law.  I rule on numerous motions as they come before me, and I hear the evidence as presented at trial.  Having spent hours talking with the litigants and counsel in mediations, however, I am constantly aware of the people behind the disputes, and why the cases, and my rulings, are so significant.  I know why the litigants have sought the assistance of the judicial system in resolving their disputes.  Hopefully I will never forget that my role, in any capacity, is to help insure that justice is done.

Judith Gail Dein had over 20 years of civil litigation experience before being appointed as a Magistrate Judge on July 31, 2000.  She is a 1976 graduate of Union College, Schenectady, New York, and received her J.D. from Boston College Law School in 1979.  In 2011 she received a Community Peacemaker Award from the Community Dispute Settlement Center of Cambridge in recognition of the court’s Mediation Advocates Panel, which provides pro bono representation to pro se civil litigants in mediations.