The Honorable Robert P. Jones passed away a few years ago. He served as Circuit Court Judge in Multnomah County. (Not to be confused with U.S. Dist. Ct. Judge Robert E. Jones.) I liked and respected him. He conducted mediations or settlement conferences in a way that I’d not experienced before or since. This post describes his approach.
First, he possessed a great presence. He emanated a feeling of strength, kindness and wisdom. When he greeted, for example, a bereaved parent, there was not a feeling of being rushed or that this was just another case. Instead, Judge Jones put out his hand, looked a mother in her eyes, and said simply, “I’m sorry for your loss.”
The attorneys knew, coming in, that Judge Jones was among the best judges. He was the “go to” judge for medical malpractice lawsuits. He was very active and interested in trial practice. For example, he wrote a “Tips from the Bench” column for The Multnomah Lawyer. Also, he advocated for better jury instructions that were more understandable than the legal mumbo-jumbo that makes a juror’s eyes glaze over. Lawyers trusted him.
Second, Judge Jones was a careful and patient listener. He did not “loop” or “VECS” as much as trainers teach mediation practitioners to do. But he did his best to understand the parties’ feelings about their cases. Of course, he asked clarifying questions, as necessary. However, one never felt like he repeated information just for the sake of proving to you that he understood, which, I feel, can sound patronizing in the hands of someone without sufficient sensitivity.
After taking the necessary time with each party, maybe 30 to 45 minutes. He did what others do not do, at least not without advance discussion and explicit direction from the parties. Judge Jones, himself, came up with a settlement proposal. “I think this case should settle for $400,000,” for example.
Some people who teach, practice or study mediation would be aghast. Many mediators, even if asked to give their opinion in such a manner, would decline on principle. There are a variety of valid reasons to oppose such an approach. Chief among them is that it diminishes the self-determination aspect of mediation.
But here’s the other side. Many people who are untrained in law and do not watch trials every day have no idea how to place a dollar value on a claim for injury. They look to their lawyers for guidance. On the other extreme, other people think they know the value of a case, because they heard about a verdict in Georgia for $10 million, and they think their case should be worth $10 million. Judge Jones provided the parties his opinion, FROM WHICH the parties could begin discussions.
The parties could accept Judge Jones’ evaluation and be done. Or, they could start their negotiations from “the middle” instead of opposite extremes, which is more common in negotiations. When parties begin with $10 million on one side and $5,000 from the defendant, then the parties begin with an impasse over who will make the first offer within the range of reasonableness. (I discussed this in a prior post.)
Any mediation, whether it is pure facilitation or begins with the neutral’s opinion depends on trust. The parties must trust the process and trust the neutral. Few neutrals could pull off what the Honorable Judge R.P. Jones did. But for some people, it proved an efficient way to resolve what needed to be resolved and get on with their lives.
Merrick Mediation Services