I have been invited to participate in an ADR but it was stipulated by the other party that it must be a retired judge. Why would a retired judge be more qualified? I would think the arbitrator should be someone who has some expertise in the type of problem it is.
It is important to differentiate between arbitration and mediation, both of which may be consider ADR. If you are in arbitration, it may be that it is simply easier for the parties to identify a retired judge as a neutral decider, because that is the role judges typically take. If you are talking about mediation, with settlement as the goal, rather than a retired judge, I would look for a mediator in your area who has a good reputation for being able to get difficult cases settled. That person may or may not be a retired judge. Often times, judges are not good mediator because they may have difficulty removing themselves from the role of decider and taking on the role of facilitator and/or persuader. If the subject matter is something highly technical or if the case is one that you would find difficult to explain to a friend or family member, then it may be beneficial to get someone who is familiar with that area. Otherwise, if the issue primarily concerns what is "right" or "fair," and the issues of the case can be explained to a lay person, then the specific experience with the subject matter is of less concern and may not really matter at all.
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I agree with you; however, that person that is neutral and knowledgeable may be difficult to find.
I couldn't agree more. You want an arbitrator that is experienced in your area, and one that is fair. The one benefit to having a judge is that they should know the evidentiary rules backwards and forwards (emphasis on should). But really, that's about it. But from what I've seen, judicial experience is not a particularly strong requirement for a good arbitrator.
Often that is exactly correct and professions are placed on panels for that reason. Judges are best when the difference hinges on law and they do have experienced in bringing parties together to settle
I diagree with the other answers. A neutral is there to show both sides why settling is better than litigating. Retired judges have a lot of experience in litigation. Unless your particular area of law is so specialized that few judges have seen it before, a judge usually makes a great neutral. Additionally, you can select a retired judge that has experience in your area - they usually post the types of ADR they do in their resume.
While I don't have all the facts, I can tell you a retired judge will have a "track record" that can be verified. Your attorney can research his/her background, i.e. general reputation in the community, which way their ruling went, etc. Most, if not all, JAMS or ADR Services neutrals have online resumes detailing their areas of expertise. Bottom line you have a better chance of knowing who and what you are getting with a retired judge than someone else. Now, this is not always the case. As previously posted, if you have a dispute involving a very specialized area of the law, e.g. ERISA a retired judge may not be the best choice seeing as these types of cases are not litigated as much. Good luck!
There are lots of Judges with a broad range of experience. When faced with this requirement, I always try to use someone with both experience in the substantive area and an actual talent for settling cases. Good luck!
Your question does not specify whether you are seeking to arbitrate or mediate. Both are ADR processes, but are different. Arbitration requires the neutral to make a decision, while in mediation the role of the neutral is to persuade the parties that reaching an agreement is the best alternative. The skill set demanded of the neutral in each is different. A retired judge who has conducted trials may be better suited to arbitrate than to mediate a case (although many retired judges have skills in both). In mediation, the most important trait is the neutral's ability to help parties achieve a settlement which fulfills each party's interests. A retired judge is no more qualified than a non-judge to do this.
You can contact the mediator and ask for references or simply speak with the mediator and ask how the mediator conducts the process. In arbitration, you cannot speak with the arbitrator in advance about the case, but have to rely on the individual's reputation, or the fact that the person is a member of a respected alternative dispute resolution provider. There are a number of factors you should consider when selecting a neutral, and whether a person is a retired judge, attorney, or someone with expertise in the type of problem, it is important that he/she possess mediation process or arbitration process skills. A retired judge does not necessarily possess greater skill, and is not necessarily more effective than an attorney or other qualified neutral, especially in mediation.
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