Other Judges' Cases

Abstract

Forget the elegant portraits of judges resplendent in their robes and courtrooms; federal judges do most of their job in modest surroundings outside of public view. Although scholars have examined and critiqued techniques used to manage caseloads, one activity has received too little attention: judges working behind the scenes to settle other judges’ cases. In this scenario, a presiding judge directs parties to participate in negotiations overseen by another judge, often labelled a “mediator.”

This practice presents a puzzle. Rules of procedure, legislative encouragement, and judicial education exhort presiding judges to oversee settlement in their own cases. Congress has encouraged federal courts to use private neutrals for court-annexed alternative dispute resolution. Why, then, are busy jurists working on other judges’ cases? Is it cause for celebration or alarm?

The road to the popularity of mediating judges is lined, or at least aligned, with good intentions. For example, mediating judges limit presiding judges’ exposure to their docket’s messy underbelly while honoring lawyers’ and parties’ interest in a preliminary judicial evaluation of their cases. The practice has an access-to-justice justification: the public, not the litigants, pay for mediating judges’ services. This consideration is particularly important in cases featuring empty-pocketed parties, especially if deep-pocketed parties are also involved.

Drawing on in-depth case studies of the City of Detroit bankruptcy and a case involving nationwide network of assisted living facilities (Harder/Sunwest Management), this article illustrates that the very elements that make judges seem like effective mediators create potential separation-of-powers problems and tax key justice system values. Although similar risks arise when judges engage in other practices, traditional oversight measures may work better in those contexts than when applied to mediating judges. Meanwhile, when certified private neutrals overreach in mediation, their actions are evaluated by the standards of organizations whose scope typically does not extend to federal judges.

In other words, for all its virtues, the mediating judge model generates a large pocket of unaccountable activity, some of which is far afield of a judicial role, and some of which deploys judicial power in a case not the judge’s own.

The federal judiciary is the institution best situated to implement reforms that maximize the virtues of mediating judges and minimize the risks. The Judicial Conference of the United States should close the guidance and oversight gap on this common but under-studied practice. By sketching out an agenda to do exactly that, this article starts, but does not end, a very necessary federal courts conversation.

Keywords: separation of powers, federal courts, alternative dispute resolution, mediation, complex litigation, bankruptcy, code of conduct, judicial ethics

JEL Classification: H74, G33