Decision Maker to Neutral: Challenges of the Change

By Ret. Judge Michael J. Dwyer & Former Commissioner Paul W. Stenzel

Many judicial officers contemplate mediation as a new chapter in their professional life after they retire from the bench. This transition to mediator may be seen as a natural one, though there are key differences.

Judges and commissioners are decision-makers who resolve disputes by presiding over hearings and then applying the law to the facts to determine the outcome along with authority to compel enforcement. Alternatively, a mediator has no decision-making power and helps resolve disputes by meeting directly with the parties (and lawyers if represented) to facilitate agreements. Adjusting to this difference is the key challenge facing a judicial officer who undertakes mediation.

​We have each wrestled with the challenges of mediating, both as impasse mediators in cases with lawyers and with self-represented parties with family law issues. There is a strong evaluative component in lawyer-assisted mediation, whereas SRP family law mediation (per SCR 20:2.4) is a very different process, and the rule has express limitations on the mediator’s role as educator not advisor. We talked with a number of retired judges and commissioners who now mediate for their advice.

Judicial mediators value their ability to assess the strengths and weaknesses of a case and be decisive. To transition to mediation, they must temper this skill and instead learn ways to inform and empower the parties to decide. As Ret. Judge Richard Sankovitz said: “The difference is between telling people what to do and encouraging the parties to decide.” Ret. Judge John DiMotto said he is using his judicial skills to help people help themselves. Both DiMotto and Ret. Judge Michael Fitzpatrick said their mediation in cases with lawyers is primarily evaluative.

“When you’re a decisionmaker, you’re not offering alternatives to see which one the parties would pick; you’re being presented with positions and then forced to make a decision,” former Rock County Family Court Commissioner Tom Kolpien said. He notes that when parties go to Court “they won’t get a solution; they’ll get a decision.” Spoken like a true mediator!

We found that most judicial officers who become mediators take some formal training to temper their evaluative experience and learn facilitative tools that assist in the empowerment of the parties to make their own decisions. Ret. Judge Paul Reilly attended mediation training at Pepperdine University that was focused on facilitative skills and said the training and role playing was an excellent way to learn.

“Facilitative work is new.” Reilly continued. “Trying to bring people to consensus is not a judges’ way of handling issues. How you mix the evaluative and facilitative methods is the art of mediation.”

“Moving from decision-making to mediating was more difficult than I expected,” Dolores Bomrad said after serving as the Family Court Commissioner in Washington County for 29 years. “When parties in mediation decide things differently than I would have, I have to check my biases.”

Mediation training offers a big assist said Bomrad who attended training presented by the Family Mediation Center. “Get training and observe other mediators,” Bomrad advised. “Listening as a mediator versus a judicial officer is different.”

Family cases make up a relatively small part of most judges’ mediation practice. Despite that, Sankovitz says that doing family cases as a judicial officer was good training for mediation. “In family cases the best way to ensure that court orders are followed is if the parties agree to them.” He also recommends that any judicial officer contemplating the transition ride along with experienced mediators.

​Key take-aways from our personal experience and this input from other judicial officers who now mediate is that it requires change in perspective, new skills, and both training and observation to do it well. We welcome feedback and contact from any who are currently mediating or considering making the transition.