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Mediators vs. The Bench: Who can better settle your case?

Writer's picture: Matthew RosenbaumMatthew Rosenbaum

I have been asked on many occasions about the benefits of using a sitting judge to

help settle a lawsuit versus the benefit of mediating the case before a retired judge or

attorney. There are positives to both; however, on balance, settling with a retired judge

as mediator provides maximum benefit, flexibility and cost effectiveness. Here’s why:


The threat of a trial. This is the one area where a sitting judge clearly has an

advantage over any mediator. Once a scheduling order is in place, the judge can set a

firm trial date and use it to work a settlement - a tactic that a mediator can’t use. That

being said, the threat of a looming trial may cause one or both parties to shut down

and just focus on the trial. Judges with large dockets are always pressed for time as

they attempt to meet their standards and goals requirements. If either party telegraphs

that they are on a fishing expedition, the judge will likely shut down and stick with the

scheduling order. Look for a mediator with patience to methodically go through the

case and read the materials. An effective mediator can get creative to help get a matter

back on track.


Cost benefit. Much has been written by me and others regarding mediation and its

cost effectiveness in settling a lawsuit. Quite simply, trials are never cost effective.

Trial and witness prep, general/targeted discovery and depositions, exploring and

hiring of experts, jury consultants, length of trial, pre and post trial paperwork/motions

are all quite expensive. Sending a retired judge pleadings, mediation statements and

other exhibits cuts a lot of costs. Most of the other pre-trial issues mentioned won’t

come into play and a seasoned mediator will be prepared to hit the ground running on

the day of the mediation. Plus, usually the parties split the cost of mediation which

makes it even more cost effective.


Time to read materials. Trial judges are pressed for time and they often have their

clerks do a lot of the reading and writing, and then are fed certain points to discuss at

mediation. Good mediators read all the materials and take notes to bring up at the

mediation. This is critically important because it indicates to the parties the mediator

actually read the materials and brought up important points for discussion. Because

we have the time, we can get more granular and delve deeper into the case. I really

enjoy engaging with attorneys and their clients to obtain a personal connection and to

demonstrate that I’ve spent time on their case, and can work with both parties to bring

a settlement home.


Pre-suit mediation. This is another option that can be a cost saver. It is also a great

benefit for attorneys whose clients want the case moved along. In some cases,

attorneys and their clients can bypass the e-filing process, the costs, and lengthy

discovery thereby saving a considerable amount of money. Once a case is filed,

however, the court will begin its process wherein the case will slow down and become

more costly by the day.


You can’t pick your judge. Once the case has been “wheeled”, attorneys are likely

stuck with a particular judge for the duration of the case. They are also limited with the

few courthouse mediators - who may not be experienced in particular fields - and are

under their own time constraints to report back to the court. You can pick your

mediator. Finding a retired judge who has experience, patience and flexibility can

maximize success in settling your case.


The specialists. As particular matters such as commercial litigation and medical

malpractice become more specialized, attorneys have the option to find retired judges

who handled specific types of cases and are knowledgeable in certain fields. For

instance, if an attorney has a sophisticated commercial construction litigation matter,

or a particular standard of care issue in a medical malpractice case, it makes much

more sense to find a retired judge who had a good reputation in that field to assist in

settling the matter. In fact, some retired judges may have more experience in handling

these specific matters than sitting judges.


I’ll leave you with this: I came across an article written by an attorney who was very

skeptical about mediation - especially with a retired jurist. He wrote:

“(Most) judges are wonderful people, but retired judges don’t always make the best

mediators. Mediation is a specific skill set that requires listening ability, careful

prodding, and the ability to think of creative solutions. Judges are used to, well,

judging. Many times in mediation, one side gets the idea that when they hire a retired

judge, the judge will be a person of authority who will ‘hammer’ the other side into a

reasonable position. The problem is that, unlike in a courtroom, the other side can just

get up and leave. And sometimes, they do. Make sure you have the right person for

the job. Do your research. Ask around.” (The Killian Firm, January 21, 2015).

I completely agree. That’s why I have a high success rate in settling cases. It’s

critically important to listen and have read the mediation materials; but patience and

creativity are also essential traits in successful conducting of ADR matters. While a

sitting judge has that “hammer,” s/he has significant limitations and lack of flexibility to

dedicate the time needed to settle a case before it gets to trial. We retired judges who

have the time, energy, experience and interpersonal skills to assist in settling a case,

stand ready to serve.


~ Hon. Matthew Rosenbaum (ret.) is a retired NYS Supreme Court Justice and founder

of Rosenbaum Mediations, PLLC. He has resolved thousands of cases, both small and

highly complex. He currently has resolved over 90% of ADR matters. For more

information, go to www.RosenbaumMediations.com.




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