By: Donald L Swanson
“Satisfaction” of parties to a mediation is difficult to describe, let alone measure. But a recent study published by the Harvard Negotiation Law Review [Fn. 1] examines the “satisfaction” of mediating parties. It identifies two items that have a significant effect on a party’s “satisfaction”: (i) timing of referral, and (ii) type of mediator.
Item # 1: Timing of Referral
The study’s conclusions on timing of referral go like this:
- The longer the time taken before a case is referred to mediation, the more stress is placed (both financially and emotionally) on the litigating parties, which reduces satisfaction; and
- Prolonging the timing of referral negatively affects satisfaction rates, even when mediation produces a settlement, because of the costs and time taken to achieve the settlement.
These conclusions make sense. Anyone with experience in mediation has seen the fatigue of the parties and their attorneys, when mediation happens toward the end of the case:
the parties are tired of all the “crap” they’ve heard from the other side;
they’re tired of wading through mountains of documents and emails and deciding whether each is relevant to production requests and fretting over what might be buried—and long forgotten—in them;
they’re tired of sitting through depositions, under an uncertainty about what will be said;
they’re weary of mounting legal fees and expert witness costs;
they’re worried about the upcoming trial and what might happen if things go wrong;
So . . . for a late in the process mediation, one or all parties might agree to something they otherwise wouldn’t—just to get the case resolved and gain relief from all its burdens and uncertainties. And, when that process is finished, “satisfied” is often not the best descriptor of what the parties are feeling.
The study recommends that mediation occur very early in a case: at the close of pleadings and before contested motions are filed. This is the time, the study says, when parties achieve the greatest “satisfaction” from a mediation process. Such a recommendation, if successfully followed, will avoid the fatigue and emotion that can overwhelm the parties in a later-stage mediation.
Item # 2: Type of Mediator
The second factor the study identifies is the type of mediator.
What the study finds is that litigating parties want their mediators to be legally trained. That’s because civil litigants rely heavily on lawyers and because legally trained mediators, (i) are familiar with the legal context of the dispute, and (ii) can use such knowledge in managing the mediation process.
Such a finding is not surprising.
Extended further, the same type of finding is likely to hold true in specialized areas of law. In the mediation of a bankruptcy dispute, for example, litigants will want a mediator who has experience and expertise in bankruptcy.
And carried further: in the mediation of a Chapter 12 ranch case, for example, the parties will want a mediator who, (i) is experienced in bankruptcy, and (ii) can distinguish, without a dictionary, between the words “heifer” and “Hereford.”
Moreover, lawyer mediators may well be viewed as unnecessary, and even undesired, by disputing parties in non-legal contexts.
“Satisfaction” is difficult to measure. But this study shows that “satisfaction,” (i) is more difficult to achieve in a late-in-lawsuit mediation than from an earlier mediation, and (ii) is enhanced by an appropriately-specialized mediator.
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 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).
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