By: Donald L Swanson
Voluntary mediation programs are often underutilized. This is an undeniable problem.
One source of the problem is ignorance of mediation’s availability. We now have empirical proof that this is so.
Ignorance is Not Bliss
Prof. Donna Shestowsky [Footnote 1] conducted an empirical study titled, “When Ignorance is Not Bliss” [Footnote 2]. Her 2017 report on the study, published in the Harvard Negotiation Law Review, provides this stunning insight:
about 76% of surveyed litigants say, “No” or “I don’t know,” when asked, at the end of their cases, whether their court had a mediation program; and
this percentage jumps to 90% for litigants whose cases actually went through trial.
What makes these percentages “stunning” is this:
—Prof. Shestowsky’s study is of litigants eligible for “court-connected” mediation programs: i.e., programs administered by the court, with court-appointed mediators — some of which subsidize the mediator’s fees.
Prof. Shestowsky’s study:
“collected data from litigants” in three state courts that, (i) offered court-connected mediation programs, and (ii) had “online databases” allowing researchers to “track each case remotely”;
involved a “variety of civil actions” such as “property, personal injury, contracts, and medical malpractice cases,” with the “mean and median amounts in controversy” at $2,053,051 and $35,000, respectively;
sent “written surveys to litigants within three weeks of the date on which their case was filed” (413 litigants completed this survey);
tracked cases online; and
within three weeks after the court designated a case “Closed,” contacted the litigant “for a follow-up phone survey” (336 litigants took the follow-up survey).
The Follow-Up Phone Survey
All litigants were asked, in the follow-up phone survey, to say whether their court had a mediation program. It is in response to this question that the 76% and 90% “No” and “I don’t know” percentages arose.
Yikes! This is a problem.
The Findings Get Worse
But the study findings get worse:
Some courts require mediation unless parties affirmatively opt out, and respondents in these courts were no-more-likely to correctly identify the court-connected mediation program than were litigants in courts with no opt out requirement; and
In courts where an opt out document had to be signed by the parties, 77.88% of the responding parties did not know about their courts’ mediation programs!!
Ignorance is not bliss in the realm of voluntary, court-connected mediation programs. Ignorance is, instead, a stunning tragedy for our judicial system.
Footnote 1: Donna Shestowsky is Professor of Law and Martin Luther King Jr. Scholar, University of California, Davis, School of Law. J.D., Stanford Law School; Ph.D. (Psychology), Stanford University; M.S. (Psychology), Yale University; B.S., Yale University.
Footnote 2: Prof. Shestowsky’s report on her study is published as, “When Ignorance is Not Bliss: An Empirical Study of Litigants’ Awareness of Court-Sponsored Alternative Dispute Resolution Programs,” 22 Harvard Negotiation Law Review 189 (2017)
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