Judge James Ware recently joined JAMS, The Resolution Experts, after spending sixteen years as a civil litigator, and twenty-years as a judge. The Stanford Law School graduate served as a United States District Judge on the Northern District of California, including a year and a half as the Chief Judge of the Northern District. Previously, he served as a judge on the Superior Court of California in Santa Clara County. Thanks to his extensive judicial career, he brings with him a wealth of experience derived from his management and resolution of thousands of cases across a wide variety of subjects. Most notably, Judge Ware presided over numerous cases involving patent infringement, securities fraud, antitrust, contract disputes, employment law, and various statutory actions. In his work with JAMS, Judge Ware draws on his vast experience as a judge on both the state and federal bench. Serving as a mediator and special master/discovery referee, he helps parties to communicate with and understand one another; offers a broad perspective on parties’ problems; assists them to evaluate the strengths and weaknesses of respective positions; assesses the overall cost of the dispute; and aides them in identifying, and overcoming, obstacles that stand in the way of effective resolution. As an arbitrator, he considers the issues and reaches a definitive, principled, and expedited resolution.
Can you share with us your major career turning points? For example, how and why did you decide to begin your legal career in the military? Should today’s law school graduates consider starting their careers in the military?
I am proud to have served my country in the military. My decision to join the military was driven by my desire to remain in law school. I was an economically disadvantaged student. I entered Stanford Law School in the Fall of 1969 with a combination of scholarships, grants and loans. The Vietnam War was ongoing and our nation had a draft. When I received a draft notice, I was faced with two options: (1) leave law school, complete a two-year military obligation and afterward return to law school or (2) remain in law school and join the Army Reserve Officers Training Corp (ROTC) that carried a four year military commitment, a portion on which would be active duty and a portion served as a reserve officer. Since my highest priority was to complete my law school studies, I chose the latter. During law school, as a ROTC cadet, I was paid a stipend that assisted me in paying for law school expenses. In addition to my law school classes, I took courses in military leadership in the ROTC Department at Stanford. I graduated from law school with a J.D. and from ROTC as a Second Lieutenant in the Army. The Army allowed me to take the California Bar Examination before I had to report for duty. Based on my legal training, the Army assigned me to the Military Police Branch. During both active duty and as a reserve officer, I found my legal training invaluable, especially my knowledge of criminal law. As a reserve officer, I was able to take a job as a lawyer and, when called up, fulfill my military obligation as an MP. Would I recommend my path to today’s law students. Absolutely. Depending upon their circumstances, the financial support and practical training offered by the military could be an important tool for allowing economically disadvantaged students like myself to go to law school.
What is the difference between mediation and arbitration?
Arbitration can take many forms. Principally, the neutral acting as an arbitrator is empowered to adjudicate the dispute. In many respects the arbitrator is like a judge. However, there is a very important distinction between a judge and an arbitrator. The judge is bound to decide the case according to the law. An arbitrator’s powers and responsibilities are governed by an agreement made by the parties to the arbitration and a set of laws that govern arbitration. In mediation the role of the neutral is to assist the parties to reach a resolution. With the parties having the power to decide how they would wish to resolve the case, with the assistance of the mediator, the parties are free to craft a resolution that can be very different from the “win or lose” outcome that often is involved in court decisions. In mediation there could be “win-win” resolutions.
JAMS refers to you as a neutral; however, we normally think of your role as being that of a mediator or arbitrator. Do distinctions exist between these roles or is the title of “neutral” merely another way of phrasing it?
I joined JAMS because of its strong reputation for neutrality. When parties are in a dispute, often they will adopt a strong position that does not recognize weaknesses. Frequently disputing parties will lose sight of the expenses each is incurring in continuing the dispute and that could be saved if the dispute were resolved. Disputing parties may also have a poor appreciation for the risks involved in achieving the final resolution that they seek. As a neutral, based on my background and experience, I assist the parties in developing a better appreciation of the whole case, not just their perspective of it; to show how a good resolution might save expenses; and to bring to their minds the sober reality of the risks inherent in the legal process.
You came to this field after a distinguished, 40-year career as a litigator and judge. In what ways is a neutral’s role similar and dissimilar to that of a judge?
Judges are sworn to preserve, protect and defend the laws of our country and to decide cases strictly according to the law and facts lawfully ascertained. Judges serve the nation.
A JAMS neutral serves the parties. While respect for the law is important in that role, the neutral does not assume a responsibility to apply the law. In my view, it is vital that the neutral understands the law that applies to the dispute, because that allows the neutral to facilitate a healthy discussion about outcomes that might be likely if no resolution is reached. In other words, the neutral’s role is to assist the parties to reach a resolution to avoid the kind of consequences that might befall them if a judge or jury is called upon to decide the dispute under the law. The goal of mediation is, of course to reach a lawful contract that the parties are not only bound to follow, but are willing to follow because it is in their best interests, respectively.
There is generally no requirement that those handling mediations and arbitrations be licensed. In some states only 20-40 hours of training is required. Can someone with such limited training find cases?
Training is important because the human mind improves with training. Moreover, there are important ethical rules that apply to mediation that must be learned and reinforced by training and education. However, I believe that the skills and aptitude that characterize good mediators cannot and should not be measured by the number of hours of formal training.
Is there perhaps a graduated scale whereby those with limited training and experience do smaller cases while those with your level of experience preside over matters involving Wall Street or sports leagues?
I believe that the market is capable of making that distinction. Parties and lawyers engaged in litigation do a wonderful job of finding skilled neutrals whose backgrounds and experiences meet the needs particular cases.
Women and people of color are underrepresented in the field of arbitration. What should minorities do to increase their chances of breaking into this field?
The responsibility does rest with women and people of color to seek jobs in ADR. But I would expand your question to ask, what can society do to increase the participation of women and people of color in the ADR field. The diversity we seek starts in law school. Admissions of women and people of color into good law schools still lags behind what it should be. As they should, many law schools are offering courses in ADR. Women and people of color should be counseled and encouraged to take those courses. Many ADR professionals come to that career after working as lawyers. Major law firms should hire more women and people of color to expose them to the benefits of ADR. Many ADR professionals are retired judges. Governors should appoint more women and people of color to the bench. ADR firms should hire more women and people of color, even if the initial training curve might be steeper for them than for a retired judge. Law firms that retain neutrals should eliminate any racial or gender bias in their selection of a neutral.
Actually all of this is already taking place. However, as I said it is a societal problem and we, the members of society, need to do a better job.
As a judge, you were provided with law clerks. Does JAMS provide you with similar support? If so, how might a recent law graduate apply to clerk for a neutral?
Many of our JAMS case managers are legally trained. However, they do not provide the full array of functions of a judicial law clerk. There are cases which might require extensive legal research and writing, particularly in arbitrations. In those types of cases, JAMS policies would allow a neutral to seek law clerk assistance, either independently or with the participation of the parties.
What do you most enjoy about being a neutral, and what do you miss about being a judge?
I have found my work with JAMS to be quite different from that of a federal judge but equally satisfying. I miss trials. When I presided over a trial, I gave all of my energy and attention to ensuring that both sides were being treated fairly under the law and procedures. However, I have found that the kind of energy and concentration needed for a mediation session engages me in the same way. At the end of a mediation session I am exhausted, but it is a good exhaustion, born out of hard listening to help people make hard choices.
Are you involved in any nonprofit or civic organizations?
As a judge I avoided entanglements that might require me to recuse myself from cases. As a JAMS neutral, I will seek more involvement with community organizations. I am a member of the Santa Clara Law School Board of Visitors; I lecture at local law schools; and I contribute to the JAMS Foundation. I am a frequent participant in continuing legal education programs.
Please share any additional thoughts you have on the profession.
The fact that [ADR] is a profession should not be taken for granted. As the amount of, the length of, and the cost of litigation has increased, so has the need for Alternative Dispute Resolution professionals. The time and energy involved in disputes detracts from industry. Our nation, indeed, the world community benefits when disputants quickly resolve disputes and return to more beneficial pursuits. It is good that ADR is growing.
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