By: Donald L Swanson
Mediation in civil litigation, here in the States, typically occurs as discovery winds down and as a trial date is in the offing. And, typically, mediation happens at the initiative of the parties—not by court referral. That’s how it’s done.
But there are other ways to do it. In Singapore, for example, (i) judges are more aggressive about referring (or encouraging) cases to mediation, and (ii) they do so much earlier in the case—often immediately after the close of pleadings.
So, it’s with considerable interest—and a potential for discovering something new—that we look to a recent empirical study of mediation in Singapore, published in the Harvard Negotiation Law Review [Fn. 1].
What the study concludes is this: the optimum time for mediation is after close of pleadings and before contested applications (e.g., discovery disputes or summary judgment) are filed. That’s because contested applications increase the contentiousness of the case and harden the positions of the parties.
Hypothesis & Findings
The main hypothesis being tested in the study is that mediation referral at an earlier time and stage of litigation is more likely to lead to settlement than a later one. Here are some of the study’s findings:
- A case is less likely to settle once contested applications are filed—the presence of one or more contested applications decreases the odds of settlement by 22%.
- A longer lapse of time before the parties are referred for mediation undermines the chances of settlement—prolonging time of referral for an additional month results in a 3% drop in likelihood of settlement.
- Three variables mutually reinforce one another in affecting the mediation outcome: (1) time of referral, (2) stage of the case at referral, and (3) existence of contested applications before referral—earlier is better.
- The study attests to the prudence of the Supreme Court and State Courts’ policies, in Singapore, of encouraging the use of mediation at an early stage and before contested applications are filed.
- Courts should avoid referring cases to mediation while a summary judgment application is pending—and should do so before such applications are filed—because the degree of acrimony and uncertainty arising from such applications will reduce the likelihood of settlement.
- As to a preference for completing discovery before attempting mediation, courts will need to balance the disputants’ need for information against the potentially damaging effects of prolonged pretrial litigation, since multiple contested applications will have been filed by that time and since the time elapsed will have taken a toll on the parties involved.
Lessons We Might Learn
Questions we might ask ourselves and lessons we might learn, here in the States, from the Singapore experience, are:
- What if our practice of waiting to the end of discovery for mediation is faulty? If it is, imagine the costs our legal system is imposing on its parties—unnecessarily—in both financial terms (e.g., legal fees) and human terms (e.g., stress and trauma).
- What if judicial reluctance to refer cases to mediation—or to at least encourage mediation—is causing our civil litigation system to become more protracted and expensive than necessary? If it is, adjustments in judicial attitudes and behaviors are needed.
Here’s a huge, “Thank you,” to the authors of the Singapore study for providing empirical food for thought, analysis and adjustment here in the States!
Footnote 1: The study is, “How Should the Courts Know Whether a Dispute is Ready and Suitable for Mediation? An Empirical Analysis of the Singapore Courts’ Referral of Civil Disputes to Mediation,” 23 Harvard Negotiation Law Review Law Review 265 (August 2018). The article is by:
- Dorcas Quek Anderson, Assistant Professor, Singapore Management University School of Law, LLM (Harvard Law School), LLB (National University of Singapore);
- Eunice Chua, Assistant Professor, Singapore Management University School of Law, LLM (Harvard Law School), LLB (National University of Singapore); and
- Ngo Tra My, PhD candidate (Graduate School for Integrative Sciences and Engineering, National University of Singapore), B.Sc. (National University of Singapore).
** If you find this article of value, please feel free to share. If you’d like to discuss, let me know.
Do, please post this for Mediation Friday – this is wonderful research and most judges would want to see it. It’s a common question I get on panels – especially whether motions to dismiss should be heard before ordering a case to mediation (as opposed to SJ motions, which the study refers to). These prelim motions are usually filed prior to discovery or answer, and my experience is that in many if not most cases they should be heard prior to mediation. What do you think?
Jack Esher, Esq., Mediator and Arbitrator MWI | CBI T: +1.617.947.3273 | F: +1.617.449.9511 | mwi.org/bankruptcy | CBInsolvency.com This communication is confidential to the addressee(s). If you have received it in error, please notify us by reply email to the sender only and delete it from your inbox. Thank you.
LikeLiked by 1 person
Thanks, Jack. Will do.
That’s really interesting insight. I tend to find any kind of settlement occurs after disclosure / discovery as it is the best time to really assess the merits of your case. However, at this point, the parties have already incurred a huge amount of costs and the positions are probably much more entrenched at this point. The point of mediation is to reduce the costs of litigation and to come to a mutually beneficial settlement which the parties have much more control over and are probably more satisfied by it than a judgment. I would certainly advise anyone to mediate early on. It works and should be promoted early on in a case.
LikeLiked by 1 person
Thanks for your thoughts on this!
LikeLiked by 1 person