In California, as in many other places, it is common for mediation panels to consist exclusively of retired judges. To be clear, many of these judges are highly qualified and incredibly talented individuals who can drive a resolution. But, candidly, many retired judges are not the right choice to mediate law firm partnership disputes for at least three several reasons.
• First, retired judges usually are generalists, typically highlighting their experience as judges, or as neutrals, in a wide variety of practice areas (some list 15 to 20 different practice areas: how much do they really know about those practices?). They don’t specialize in any particular practice area because, you know, they’ve been judges for a long time. Generalists are fine for some types of disputes and, in certain cases, you need the judging aspect of experience more than you need substantive expertise.
But a generalist is not necessarily a good choice for a law firm partnership dispute, because reaching the right resolution often requires a specialist’s view of the many issues that law firms, and law firm partners, face today.
• Second, retired judges don’t have recent or relevant experience in law firms because, you know, they’ve been judges for a long time. This is important because the practice of law, and law firm realities, have changed significantly in the past 5, 10, or 20 years. Shouldn’t your mediator have first-hand practical experience with those changes?
• Third, retired judges tend to rely on their status as former judges and the methods they learned in pushing parties to resolve cases. That’s not a good fit for law firm partnership dispute mediation, where the parties are typically peers, current or former partners, or at least colleagues, and they’re sophisticated lawyers who aren’t susceptible to the type of pressure that can be applied to a personal injury plaintiff or to an insurance company representative.
There are certainly cases where a mediation requires judging experience alone to reach the right settlement of issues. But for law firm partnership disputes, substantive expertise and specialized experience are critical to reaching a thorough, creative, and durable resolution.
