What types of judges should or should not be asked to deliver JDR services? If we think of judges primarily as rule-followers, then those who know how JDR is supposed to work ought to be able to do the job. Should we assume that all judges who have had basic mediation and facilitation training will be successful JDR judges? Or, are temperament and attitude toward ADR as important as legal background and a rule-following orientation? In our view, only some judges have the appropriate temperament, attitude and necessary skills to conduct successful JDRs. Both knowledge about JDR and learned skills are essential, but so are the right temperament and attitude.

Why Talk about Types of Judges?

A “type” refers to a group that shares one or more common characteristics. Since JDR is a complex activity requiring active listening, considerable empathy, open-mindedness and a positive attitude toward empowering parties to settle their own disputes, we can divide judges into three groups vis a vis JDR: those who do not have either the necessary skills or the right temperament to practice JDR; those sufficiently skillful and temperamentally suited to provide JDR; and those who are appropriately skillful and temperamentally suited, but not interested in providing JDR. We think it is important for senior judges, court administrators and ADR trainers to know which judges are in which category. Just offering additional training to judges of the first and third types won't guarantee that they can deliver JDR services effectively.

This doesn't mean that JDR skills can't be taught, but skill training won't transform a judge with the wrong temperament or no interest in delivering JDR services. As Carrie Menkel-Meadow once put it more generally with regard to lawyering skills, “we aim to improve lawyering, yet, in doing so, we must take into account what lawyers are actually doing” (Menkel-Meadow 1993). We can extrapolate this to JDR: the aim is to improve the administration of justice, not just reduce the workload of the court. That means that judges must be able to mediate effectively in each JDR case that comes before them. But before that is possible, we must be sure that the right types of judges are assigned in the first place.