A False Assumption: Some Types of Cases are “Not Amenable” to Mediation

By: Donald L. Swanson

The U.S. Sixth Circuit “moved to random selection” of cases for mediation because “cases that appeared to be amenable to mediation were not actually more likely to settle than any other case.”

Sixth Circuit Appellate Blog, April 6, 2012.

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Any assumptions on what this might be? (Photo by Marilyn Swanson)

A False Assumption

One of the early assumptions about mediation is that some types of civil cases are more amenable to settlement through mediation than others.

This assumption is false.

Falsity is demonstrated by the experience of the U.S. Sixth Circuit Court of Appeal, reflected in the quotation above.

Falsity is also demonstrated in a report by Law Professor Suzanne J. Schmitz, published at, A Critique of the Illinois Circuit Rules Concerning Court-Ordered Mediation, 36 Loy. U. Chi. L. J. 783 (2005).

Illinois Rules on Mediation

Illinois adopted a mediation system in which a court, (i) has “authority to order mediation,” and (ii) “retains discretion over which cases to refer” to mediation.

In this system, Judges have broad latitude to determine “on a case-by-case basis” whether to order a case into mediation.

Additionally, the system adopts the false assumption noted above by specifying grounds upon which dispensation from mediation is to be granted.

Studies Debunking the Assumption

Mediation studies provide “no empirical support” for identifying “best” types of cases to mediate. For example:

One study suggests that “personal injury cases were excellent candidates for mediation”;

Another concludes that “contract cases are extremely amenable to mediation”;

Most studies find “no difference in settlement rates between broad case categories”; and

Another study finds that even high levels of “acrimony” do not “argue against the likelihood of settlement through mediation.”

“Indeed,” Prof. Schmitz concludes:

There is “no typical case” in which “mediation has detrimental effects”;

A rule authorizing mediation in all types of civil cases “is sound”; and

Courts “should not automatically exclude categories of cases from mediation.”

Dispensation from Mediation

Mediation rules often allow dispensation from mediation for a variety of reasons. In Illinois, for example, any party to a court-ordered mediation can seek dispensation for these reasons:

(1) the parties previously mediated the matter under court order;
(2) the issue presents a question of law only;
(3) the order violates an administrative order of the court;
(4) the parties state that mediation will not facilitate a reasonable possibility of settlement; or
(5) other good cause shown.

–Flawed Dispensation Rules

Prof. Schmitz concludes that such rules granting dispensation from mediation are “flawed” and “probably unnecessary.” Here’s why:

1. The listed reasons for dispensation “have no basis in the research,” because studies show that “there is no type of case categorically unsuitable for mediation” and that “any rule carving out categories of cases unsuited for mediation” is “over-inclusive”; and

2. The “very creation of a list of reasons for dispensation” invites parties to seek dispensation and is “ill advised.”

Prof. Schmitz further concludes that “the fourth ground” for dispensations in the Illinois rule listed above (i.e., absence of a “reasonable possibility of settlement”) “should be struck.” Studies show that many cases settle through mediation “despite a firm insistence” before mediation “that only a trial could resolve the matter”:

–In one pilot program study, for example, more than one-third of mediating attorneys “doubted the likelihood of settlement” at the outset but reached a mediated settlement anyway.

–Discretion Needed

A court does need discretion to forego mediation in special circumstances. Mediation might not be suitable, for example, when:

There is “a need for public sanctioning of conduct” involving “repetitive violations” of law that “need to be dealt with collectively and uniformly”; or

A party is “not able to negotiate effectively,” even “with assistance of counsel.”

No special rules are needed for such discretion, Prof. Schmitz concludes, because a court can “rely on its inherent authority” to “excuse those cases that need excusing.”

Conclusion

The old assumption that some types of civil cases are less-amenable to mediation than others is false. It needs to be discarded and ignored.

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