Let’s Add a Mandatory Element to Mediation Programs: A Small Claims Illustration

By: Donald L. Swanson

Voluntary mediation programs “attract relatively few cases, even when offered at low or no cost.”

–Dr. Roselle L. Wissler, The Effects of Mandatory Mediation: Empirical Research on the Experience of Small Claims and Common Pleas Courts, 33 Willamette Law Review 565 (1997).

An Empirical Study

Dr. Wissler’s empirical comparison of voluntary v. mandatory mediation in small claims cases finds few distinctions in the experiences of mediating parties. For example:

1) Mandated mediations “were marginally less likely to settle” than voluntary mediations.

2) Settling parties in mandated mediations reported feeling no more pressure to settle than “those who settled in voluntary mediation.”

3) Voluntary and mandated mediating parties “did not differ” in their:

–“descriptions of the mediation session,”
–“assessments of their opportunity to present their views,”
–“degree of control over the process and the outcome,” or
–view of “the mediator’s neutrality and understanding of the dispute.”

4) Voluntary and mandatory mediations did not differ in:

–“the effect on the parties’ relationship,”
–“the outcome received,”
–the ”parties’ perceptions of the outcome,”
–the parties’ “compliance with the agreement,” or
–“the reported time and cost savings produced by mediation.”

Preliminary Conclusions

Given all of the foregoing, it seems odd that mediation programs in small claims courts would be entirely voluntary.

Adding a mandatory element to such programs would assure their adequate utilization and justify their existence.

Rhetorical Questions

Given the foregoing:  Why wouldn’t a small claims mediation program contain a mandatory element?

–If we establish a mediation program, why not assure it is well-utilized?

–If we are incurring administrative costs for a mediation program, why not assure that costs are well-spent?

A Small Claims Example from Illinois

Here is an example of what I mean: small claims mediation programs in Illinois.

Here is a link to a summary of such Illinois programs, from which information below is taken.

[Editorial Note: Information below is dated: it’s from at least four or five years ago—and sometimes more.  Yet, it illustrates how voluntary-only mediation programs are under-utilized, even when readily accessible and free of charge.]

Participation in all such programs is entirely voluntary.  And, as predicted by Dr. Wissler’s article, participation levels are limited. For example:

—5th Judicial Circuit – The program provides “free mediation services,” with mediators “available in the courtroom” to mediate “three Thursdays out of every month.” Yet, in the first eight months of 2012, only 11 small claims cases “had been mediated.”

Seriously?!  Mediators are standing idly by on three Thursdays of every month–waiting to be utilized.

—11th Judicial Circuit – The program “has 17 mediators on its roster.” Yet in 2009, the program “mediated 48 cases.”

—12th Judicial Circuit – The program has “22 mediators,” and mediations are provided “at no cost to parties.” During the four years between “March 2010 and March 2014,” 1144 cases were mediated: that’s 289 mediations per year and 13 mediations per mediator per year.

That’s actually pretty good–what happened in this Circuit needs further scrutiny.

—19th Judicial Circuit – The program provides “free mediation services” to pro se parties. It has “3-4 mediators available” for “small claims calls every Thursday.” Yet, in 2012 only “126 cases were referred” to the program.

Is that an effective use of 3-4 mediators’ time every Thursday?

—22nd Judicial Circuit – The Court has 15 mediators who are “voluntary attorneys.” Mediations take place “every other Thursday,” and parties appearing in court can have their disputes “mediated immediately.” Yet, the program mediates only “45 to 50 cases” each year.

Is that an effective utilization of the 15 “voluntary attorney” mediators?

Further Questions

So . . . shouldn’t these under-utilized mediation programs add a mandatory element?

–If you have several mediators in a small claims courtroom on a Thursday, standing idly by, shouldn’t you order some of the disputing parties to meet with them before proceeding?

–Wouldn’t assigning cases to mediation be a more productive use of volunteer mediators’ time . . . rather than letting them stand idly by?

–Someone is administering each of these small claims mediation programs. Wouldn’t it be a better use of administrative efforts and costs to assure that the programs are actually being well-utilized?

Conclusion

It seems that the obvious answer to such questions is a resounding, “Yes!!”

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