U.S. Magistrate Judge Sallie Kim was recently interviewed in the Recorder (the legal newspaper in the Bay Area) about various aspects of being a Magistrate Judge, including hosting judicial settlement conferences.  I’ve been spending some time thinking about the real differences between judicial settlement conferences and mediations (most in the Phoenix legal community call them mediations).  Based on Judge Kim’s responses to questions about settlement conferences, what do you think?

People I’ve talked to are particularly interested in your mediation and settlement work. Do you have any particular philosophy in how you go about trying to bring two feuding parties to a mutually acceptable outcome?

One particular philosophy that I have is that I try to give people as much time as they want. So if I set a settlement conference, I’ll set it for an entire day if I can. And I tell the parties, if I can stay all night long, I will. I will stay as long as they need me to. I feel the process really can be time consuming, and people can’t feel rushed. The only times that I’ve tried to rush it, it hasn’t worked out well. I think just having the patience to give people the time to really talk about their issues and try to find a solution has been really important—surprisingly important. I think the second thing is that I really try to prepare. I tell parties that I’ll read pleadings outside the settlement conference statements, if think they’re important. And, if I see something interesting, I’ll look at the case law, as well, because I really feel like I need to know what the case is about. And I usually hold a presettlement conference phone call to ask if there’s anything I should be looking at. I feel like my preparation is important, because they’re coming in prepared. I guess those are the only two things I have control over: how much time I put in and how much time I give.

Have you run into lawyers or parties who have been particularly intransigent?

That’s every lawyer. (Laughs.) Every lawyer who comes to court says, “We’re never going to settle.” And I say, “You know what? Just give me a chance. We’ll see what we can do today.” I think it’s pretty common for people when they come in for a settlement conference to think that it’s not going to succeed. It’s really surprised me about how many people have said that. I’ve settled cases where they say, “We’ve been to mediation twice already.” Well, you know, things change. And, the closer you get to trial, things can happen.

What does you think a lawyer coming to you for a settlement conference needs to know coming in?

I’m prepared to talk seriously about what’s really driving your needs and your clients’ needs. I tell the parties at the beginning that, if they want to tell me something that I won’t share with the other side, I will honor that. The reason is that I want to have as much information as I possibly can, so I can help them find a settlement. I’m sometimes concerned that lawyers are holding their cards too close to their vest and that I can’t help them, if they don’t tell me what’s really going on and what their client really wants. People who are forthcoming are much more likely to get a settlement. And I can understand it’s so hard to switch your brain when you’re a lawyer and you’re litigating, because you have to keep so many things close to your vest when you’re litigating. But when you go into settlement, it’s a different mindset. I would ask lawyers to switch their mindset to sharing as much information as possible to me, because that’s the only way I can helpful in getting the case settled.

Art Hinshaw is a Clinical Professor of Law and the Director of the Lodestar Dispute Resolution Program at ASU Sandra Day O'Conner College of Law. His research and teaching interests focus primarily on mediation and negotiation, often bridging ADR theory and practice. He is an avid writer and contributor to ADR Prof Blog.