“Think Your Blackest Thoughts and Darken Them:” Judicial Mediation of Large Money Damage Disputes

Abstract

This paper considers a much neglected, but distinctive and increasingly prevalent kind of mediation work: the mediation of large money damage cases by acting and former judges. The research finds that judicial mediation is a law-infused procedure different from forms of mediation in which the stuff of law and lawyers' work is only marginally relevant, if at all. The study details how judge-mediators draw on their knowledge of the law, technically and as a matter of professional practice, to make legally persuasive arguments that critically evaluate each side's case and what is likely to occur at future points, adversely altering the litigants' understanding of the risks and costs of failing to settle and thus facilitating dispute resolution. The study was developed and pursued as an ethnographic and ethnomethodological study of work.