GPSolo Magazine - March 2004
Institutionalization: What Do Empirical Studies Tell Us About Court Mediation?
This article focuses on the lessons that seem to be emerging from empirical data regarding best practices for programs that mediate non-family civil matters. It considers the answers research provides to three questions: (1) How does program design affect the success of the institutionalization of mediation? (2) In what ways do design choices affect the likelihood of achieving settlement of cases? and (3) Which program design choices affect litigants’ perceptions of the procedural justice provided by court-connected mediation?
Design and institutionalization. Most court-connected mediation programs seek successful institutionalization, which we define here as regular and significant use of the mediation process to resolve cases. Voluntary mediation programs rarely meet this goal because they suffer from consistently small caseloads. In contrast, programs that make mediation mandatory have dramatically higher rates of utilization. Significantly, mandatory referral does not appear to adversely affect either litigants’ perceptions of procedural justice or, in most studies, settlement rates. Further, judicial activism in ordering parties into mediation triggers increased voluntary use of the process, as lawyers begin to request it themselves in anticipation of court referral.
Another program design option involves requiring lawyers to consider mediation as an integral part of their usual litigation planning. For example, some courts require lawyers to discuss the potential use of mediation or other ADR processes and report the results of that discussion to the court early in the life of a case. Other courts require lawyers to discuss ADR with their clients. These court rules face less lawyer opposition than does mandatory case referral and can give lawyers more control over the logistics of mediation. Adopting these rules, combined with active judicial support, tends to increase requests to use mediation.
The local legal and mediation cultures influence which program design features are acceptable. Thus, mediation programs that obtain the input and support of the bench and the bar and that involve mandatory consideration or mandatory referral are more likely to be successfully institutionalized.
Which cases should mediate. Although it has been suggested that certain general categories of civil cases are “best” handled by mediation, there is no empirical support for this notion. Neither settlement rates nor litigants’ perceptions of the procedural justice provided by mediation vary with case type.
Interestingly, the level of acrimony between the litigants in nonfamily civil cases does not seem to affect the likelihood of settlement in mediation. Not surprisingly, the cases most likely to settle in mediation are those in which the litigants’ positions are closer together, the issues are less complex, or the issue of liability is less strongly contested. Litigants’ perceptions of procedural justice do not seem to vary with the tenor of the relationship between the litigants or with these other case characteristics. Thus, because no case characteristics have been identified for which mediation has detrimental effects, mediation programs do not need to exclude certain types of cases.
When to mediate. Without a statute or court rule to the contrary, mediation tends to occur late in the life of a case and often after all discovery is completed. Holding mediation sessions sooner after cases are filed, however, yields several benefits. Cases are more likely to settle, fewer motions are filed and decided, and case disposition time is shorter, even for cases that do not settle.
Local litigation customs and case management practices affect lawyers’ comfort with the early use of mediation, and the chance of settlement is reduced somewhat if lawyers lack critical information about their cases. Discovery does not have to be completed, however, for cases to settle. In addition, the status of dispositive and other motions tends to affect the likelihood of settlement in mediation. If motions are pending, settlement is less likely. Program designers should consider scheduling mediation sessions to be held at some reasonable point before discovery is completed but only after dispositive or other critical motions have been decided.
Who the mediators should be. Mediation is most likely to be successfully institutionalized if the mediators are drawn from the pool that is preferred by lawyers: litigators with knowledge in the substantive areas being mediated. But neither mediators’ knowledge of the subject matter of the dispute nor the number of years they have practiced law has proved to be related to settlement or to litigants’ perceptions of procedural justice. One characteristic of the mediators, namely having more mediation experience, is related to more settlements. However, several aspects of mediator training, such as the number of hours of training or whether it included role-play, tend not to affect settlement or litigants’ perceptions of the procedural justice of mediation. Thus, program design options that maximize each mediator’s level of experience may enhance the success of the program.
What the mediators should do. Both active facilitation and some types of evaluative interventions tend to produce more settlements as well as heighten perceptions of procedural justice. But when mediators recommend a particular settlement, litigants’ ratings of the procedural fairness of the process suffer. When litigants or their lawyers participate more during mediation, cases are more likely to settle and the litigants evaluate the mediation process as more fair than when they participate less. In addition, when the lawyers behave more cooperatively during mediation, both the likelihood of settlement and litigant perceptions of procedural fairness increase. Thus, mediation programs should encourage mediators to facilitate participation and enhance the amount of cooperation, but discourage them from recommending particular settlements.
Roles for lawyers. In civil mediation sessions, lawyers generally speak on their clients’ behalf and do more of the talking. Neither settlement nor litigants’ perceptions of procedural justice tend to be harmed by this allocation of responsibility between the lawyer and client. Litigants’ presence during the session, however, is important. Litigants who are not present view the dispute resolution process as less fair. Moreover, lawyers feel their clients’ presence influences ultimate outcomes.
Preparation for the mediation session is important. The more lawyers prepare their clients, the greater the likelihood of settlement in mediation and the greater the litigants’ perception of procedural fairness. Courtconnected mediation programs should encourage litigants to attend and participate in mediation sessions and should provide information to assist lawyers’ preparation.
Bobbi McAdoo is a professor of law and senior fellow at the Dispute Resolution Institute at Hamline University School of Law in Saint Paul, Minnesota.
Nancy A.Welsh is an associate professor of law and associate director of the Center for Dispute Resolution at the Dickinson School of Law of the Pennsylvania State University in Carlisle.
Roselle L. Wissler is director of research of the Lodestar Dispute Resolution Program at the Arizona State University College of Law in Tempe.
For More Information About The Section Of Dispute Resolution
- This article is an abridged and edited version of one that originally appeared on page 8 of Dispute Resolution, Winter 2003 (9:2).
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- Website: www.abanet.org/dispute/
- Periodicals: Dispute Resolution, quarterly magazine; Just Resolutions, quarterly newsletter.