Seven Practice Lessons That Enhance Mediation

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Moose and Eagle: a life-enhancing experience

By: Donald L. Swanson

What do empirical studies tell us about court mediation”?

This question is asked and answered in a 2004 article. The authors of the article are examining “empirical data” and looking for “best practices” in programs that mediate non-family civil matters.  The practices they identify as “best” are those that promote “regular and significant use” of mediation “to resolve cases.”  Here are seven lessons from the best practices hat enhance mediation.

Practice Lesson # 1. Mandatory mediation outperforms voluntary mediation.

If the goal is to have a “regular and significant use” of mediation to resolve cases, then mandatory mediation is much better than voluntary mediation. The authors find:

–Voluntary mediation programs “rarely meet this goal” because they “suffer from consistently small caseloads”;

–By contrast, mandatory mediation programs “have dramatically higher rates of utilization”; and

–“Judicial activism” in mandating mediation “triggers increased voluntary use of the process, as lawyers begin to request it themselves in anticipation of court referral.”

Mandatory mediation outperforms voluntary mediation in other ways as well. The empirical data shows, for example, that mandatory mediation referrals do not adversely affect either “litigants’ perceptions of procedural justice” or “settlement rates.”

Lesson:  Don’t be afraid of mandated mediation.

Practice Lesson # 2. All types of cases are amenable to mediation — none should be excluded.

A common misstatement of mediation reality, over the years, is this:

“Some types of cases are ill-suited to mediation.”

Specific types of cases often assumed to be ill-suited for mediation include, (i) complex cases; and (ii) cases with high levels of acrimony between parties.

But empirical data shows that all such assumptions are wrong. The reality is this:

“there is no empirical support” for the notion that some cases are ill-suited to mediation.

Instead, empirical data shows that mediated settlement rates do not vary based on case types or on levels of acrimony (in non-family cases).

[Here’s an experience-based editorial note: Whenever a dispute is between family members and is characterized by acrimony and bitterness, mediation is almost always a hopeless proposition—as are all other forms of consent-based resolution tools.]

Empirical data also reveals that perceptions by the parties of procedural-justice within a mediation do not vary by case type.

Lesson: “[B]ecause no case characteristics have been identified for which mediation has detrimental effects, mediation programs do not need to exclude certain types of cases.”

Practice Lesson # 3. Early mediation is better than later mediation.

Typically, mediation occurs “late in the life of a case and often after all discovery is completed.” The empirical data shows, however, that this is not the best approach.

Holding mediation sessions “sooner after cases are filed” will yield these 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.”

A challenge for early mediation is this: a “lack of critical information” will diminish the chances of settlement. However, empirical data shows that discovery “does not have to be completed” for cases to settle. Instead, what’s needed for meaningful mediation is a comfort, for all parties, in their knowledge and understanding of the essential facts of the case.

On mediation timing, the authors find that a pending motion on critical issues (e.g., a motion to dismiss or for summary judgment) will decrease the “likelihood of settlement in mediation.”

Lesson: A mediation should be scheduled as soon as initial discovery is accomplished and the initial flurry of motions is resolved.

Practice Lesson # 4. Local litigation customs, culture and judicial support should affect the design of a mediation program.

In two separate instances, the authors focus on local litigation customs and cultures as critical factors in the success of a mediation program.

The first instance is this:

“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 . . . are more likely” to be successful.

The second instance is this:

“Local litigation customs and case management practices affect lawyers’ comfort with” a mediation program.

The authors offer this 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.”

Lesson:  Local cultures and customs, and support from both the bench and the bar, are important in the effective use of mediation.

Practice Lesson # 5. Mediator effectiveness is dependent on levels of expertise and experience.

Here are mediator qualities that enhance mediation effectiveness:

–“Mediation is most likely” to be successful “if the mediators are drawn from the pool that is preferred by lawyers: litigators with knowledge in the substantive areas being mediated.”

–“One characteristic of the mediators, namely having more mediation experience, is related to more settlements.”

–“Thus, program design options that maximize each mediator’s level of experience may enhance the success of the program.”

Here are mediator qualities that have little or no impact on mediation effectiveness:

–“the number of years” a mediator has practiced law has no relationship to settlement or to a litigant’s “perceptions of procedural justice.”

–“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.”

Lesson:  Experience is important to a mediator’s effectiveness.

Practice Lesson # 6. Mediation works best when the parties, their attorneys and the mediator are all active and cooperative.

Here are specific findings in the article:

–“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.”

–“[W]hen the lawyers behave more cooperatively during mediation, both the likelihood of settlement and litigant perceptions of procedural fairness increase.”

Lesson: “Thus, mediation programs should encourage mediators to facilitate participation and enhance the amount of cooperation, but discourage them from recommending particular settlements.”

Practice Lesson # 7. Preparation and presence at a mediation session are important.

Here are specific findings in the article.

–“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”: (i) “Litigants who are not present view the dispute resolution process as less fair”; and (ii) “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.”

Lesson: “mediation programs should encourage litigants to attend and participate in mediation sessions and should provide information to assist lawyers’ preparation.”

Summary

Active judicial support for mandatory and early mediation of all types of cases before experienced mediators, by actively engaged parties and well-prepared and cooperative attorneys, who are familiar with and supportive of the process, will achieve the best mediation program results.

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