When a Case is “Ripe” for Early Mediation

By Donald L. Swanson

A 2018 mediation study [Fn. 1] tests the following hypothesis:

That referral of a lawsuit to mediation at an early stage is more likely to lead to settlement than a later referral.

What the study finds is that timing is a complex issue that’s influenced by and “could be a proxy for” other factors and variables.

“Ripeness” for Mediation

Here are specific findings from the study on “ripeness” of a case for mediation:

(i) Earlier referral of cases is associated with a higher likelihood for resolution at mediation; but
(ii) Other critical variables are involved.

Timing

The study suggests that courts should encourage use of mediation:

• at the close of pleadings when parties understand the issues in dispute; and
• before acrimony between them is magnified by time delays, discovery disputes, and summary judgment motions.

The study opposes the “lawyers’ preference” to complete discovery before attempting mediation because discovery disputes and elapsed time take “an emotional toll” on the parties that is “potentially damaging” to settlement prospects.

Contentiousness & Delay

The study emphasizes that contentiousness between litigants and delays in proceeding are a drag on settlement prospects. That’s because contentiousness and delay entrench disputants in their positions and make them less open to arriving at a mediated resolution. The study’s data show, for example:

• The presence of one or more contested motions after close of pleadings decreases the odds of settlement by 22%; and
• Prolonging the time of mediation referral for a month after close of pleadings “results in a 3% drop in likelihood of settlement.”

Simplified Process

The study supports a “simplified litigation process” used in local courts for smaller cases, in which:

(i) a limitation exists on the number of contested motions that may be filed in a case; and
(ii) a case management conference is required at close of pleadings to discuss dispute resolution options.

Validation

The study concludes:

–The local courts’ practice of encouraging early mediation is “strongly validated by our findings” that “a higher level of contentiousness, prolonged time of referral, and a later stage of referral” result in poorer mediation outcomes.

Conclusion

Kudos to the authors of the study for their excellent work and contribution to this subject!

Footnote 1: The study is by Prof. Dorcas Quek Anderson, Prof. Eunice Chua & PhD candidate Ngo Tra My. The report is titled, “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,” and is published at 23 Harv. Negot. L. Rev. 265 (Spring 2018).

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