“We, of course, found it ironic and unfortunate that mediation, a process designed as an alternative to litigation, can, in some circumstances, encourage rather than eliminate additional litigation.”
For 1994, the year this magazine began, 329 federal and 362 state court decisions are available on Westlaw that mention the word mediation. Fast-forward twenty-seven years: through only the first eleven months of 2021, the word mediation appears in 3,505 federal and 1,547 state decisions.
Of course, not all of these database “hits” involve situations where federal and state judges actually decided a disputed mediation issue. But roughly fifteen to twenty percent of the time, that is exactly what happened. And I should know. Since 1999, I have been a diligent (my friends and family might suggest “compulsive,” “neurotic,” or “obsessive”) reader of federal and state court decisions that include the word “mediation.”
During two five-year time spans (1999–2003 and 2013–2017), I created datasets coding cases for a wide variety of characteristics, ranging from jurisdiction, to type of mediation dispute, to case outcome (e.g., was a challenge to enforcement of a mediated settlement granted or denied). In 1999, when my Mitchell Hamline colleague Peter N. Thompson and I compiled the first dataset, we skimmed a total of 1,184 cases to arrive at the 172 that actually resolved a disputed mediation issue. By 2017, the list of initial search “hits” grew to 5,137. Of those cases, 891 involved judicial resolution of disputed mediation issues.
In celebration of the one hundredth issue of Dispute Resolution Magazine, what lessons might be gleaned about the evolution of our field from these two “snapshots” of litigation about mediation?
When Peter and I authored our first study analyzing our 1999–2003 dataset, we emphasized the following:
How have things evolved over time? First, over a time period when civil filings in U.S. federal and state courts have been more or less constant or (during the 2008 recession) in decline, there has been a more than fivefold increase in disputes about mediation.
One notable trend in the data is the shift from a majority of mediation disputes coming from state courts to a majority coming from federal courts (commencing in 2007 and continuing to the current day). Much of this shift is likely attributable to the 2005 congressional enactment of the Class Action Fairness Act, designed to “federalize” class actions. There are now scores of cases each year where federal judges invoke the involvement of a private mediator as evidence that bargaining in a class action case was conducted at arms-length and without collusion between the parties.
Second, the type of disputed mediation issue has shifted in some interesting ways. The percentage of cases raising mediated settlement enforcement issues declined seventeen percent, from forty-seven percent of all cases in 1999–2003 down to thirty-nine percent in 2013–2017. Disputes about confidentiality also showed marked decline, down thirty-three percent (from twelve percent of all cases in 1999–2003 down to eight percent in 2013–2017). Disputes about fees and costs, court power to compel mediation, and sanctions also all declined as a percentage of total caseload, as did disputes raising ethical concerns about mediators or judges deciding disputed mediation issues.
In contrast, mediation litigation has seen growth in disputes about procedural implications of mediation requests or participation. These disputes have increased threefold, increasing from four percent of all cases in the 1999–2003 dataset to twelve percent of all cases in the 2013–2017 dataset. Cases alleging acts or omissions in mediation as a basis for new claims have also become more common, rising from just two percent of all cases in the 1999–2003 dataset to five percent of all cases in the 2013–2017 dataset.
While the relative frequency of mediated settlement enforcement disputes has declined, the likelihood that a settlement will be enforced in the face of an alleged defense had increased from fifty-seven percent to sixty-nine percent of the time. Interestingly, the frequency with which parties raise “traditional” contract defenses, such as whether there was a meeting of the minds, fraud, mistake, duress, or lack of authority, have declined. In their place are a panoply of procedural defenses, which have increased as mediation has become institutionalized in statutes and court rules. This most rapidly expanding category of disputes, which we did not even include in the original case coding questionnaire in 1999–2003 because cases arose so infrequently, involves such questions as whether the court had jurisdiction to hear the matter or whether the parties exhausted administrative remedies or took the necessary steps to raise or preserve the issue for review.
A common assumption is that enforcement of mediated settlements and confidentiality are closely linked. The datasets suggest otherwise, with litigation only relatively rarely involving both issues. Between 1999 and 2003, courts considered both enforcement defenses and confidentiality challenges in thirty-eight cases, just ten percent of all enforcement defense cases during that time. Between 2013 and 2017, courts grappled with both enforcement defenses and confidentiality issues only twenty-nine times, just four percent of all cases raising an enforcement defense. Together with the overall decline in litigation about confidentiality issues, these statistics suggest that confidentiality frameworks for mediation are working efficiently and predictably for parties.
That seems especially true for the Uniform Mediation Act, first approved by the Uniform Law Commission in 2001 and now adopted in twelve states and the District of Columbia. Through the end of 2012, fewer than fifty federal and state cases published on Westlaw discussed any aspect of the UMA. A similar pattern emerged between 2013 and 2017, with federal or state courts interpreting or applying the UMA to resolve a dispute about confidentiality in mediation only twenty-nine times nationwide (approximately eight percent of all state and federal cases addressing mediation confidentiality disputes in that five-year period). Moreover, in a number of those cases, courts applied or discussed UMA principles in jurisdictions or contexts where the Act was not actually controlling—strong evidence that the drafters’ uniformity objective is accomplished, at least partially, in ways other than formal Act adoption.
I have been saying for years that I could teach my entire first-year civil procedure course using only case law decisions about disputed mediation issues. For me, the sheer mundaneness of institutionalizing mediation into the litigation process is the biggest takeaway from the datasets. You name the litigation dispute, there is a mediation case on point.
First and foremost, mediation participation has become the all-purpose attorney excuse for dilatory behavior or violation of court rules. For example, belief that a case would settle in mediation has been offered to justify late amendment of complaints, failure to plead affirmative defenses, and late filings of a wide array of pretrial motions, among other things. Mediation efforts are routinely offered as a defense against sanctions for discovery failures and cited to nonexistent, notwithstanding the considerable ink spilled over the last three decades in this magazine and academic journals about mediator performance. For example, the 1999–2003 dataset included just seventeen cases where parties asserted mediator misconduct as a defense to enforcement.
In the much larger 2013–2017 dataset, the total number of cases alleging a mediator misconduct defense was even smaller (sixteen total), and included not a single successful case. As an optimist, I think it is fair to conclude that consumers are relatively satisfied with the product. Given that this is a one hundredth issue anniversary celebration of a magazine that has played a pivotal role in the growth of mediation and other forms of ADR, that would seem to be good news indeed.
