Pepperdine’s Peter Robinson has published an article titled Settlement Conference Judge – Legal Lion or Problem Solving Lamb: An Empirical Documentation of Judicial Settlement Conference Practices and Techniques in which he reports on an empirical study he conducted of judges in California to assess their methodologies in settlement conferencing. As he acknowledges, the results cannot be taken completely at face value because the judges were self-reporting their approaches. It stands to reason that most judges would consider themselves to be flexible and adaptive, able to use a variety of techniques to achieve settlement. Even with that caveat, the results are interesting, if not especially surprising. As to the judges’ focus (roughly corresponding to Len Riskin’s narrow/broad dichotomy), Robinson found that:

Enough judges focus on explaining legal strengths and weaknesses to justify that this is what stereotypically occurs in a settlement conference. Surprisingly, a significant percentage of judges also report primarily focusing on satisfying underlying needs, goals, fears, or feelings. The result substantially disproves the perception that settlement judges discard the parties’ emotions in favor of legal realities.

As to their style (roughly corresponding to Riskin’s elicitive/directive dichotomy), he found that:

High settling judges tend to be more influential and use more directive techniques like expressing opinions on likely trial outcomes and urging parties to accept a particular settlement proposal. However, significant numbers of high settling judges avoid those techniques and most judges use “asking” techniques more frequently than “telling” techniques.

So the stereotypical picture of the settlement judge strong-arming parties into settlements based on likelihood of success seems to have some validity, but does not capture the broad range of settlement conference behavior. The full article is well worth a read.