Study: Early Referrals To Mediation, With Opt-Out for Good Cause, Are Effective

By: Donald L Swanson

When an opt-out for good cause exists, early referral of a case to mediation facilitates settlement.

–This conclusion is from a “large sample” study of mediations involving the federal government as party defendant.

The “large sample” study is reported as, “Dispute Resolution and the Vanishing Trial: Comparing Federal Government Litigation and ADR Outcomes,” by Lisa Blomgren Bingham, J.D., Tina Nabatchi, Ph.D., Jeffrey M. Senger, J.D., & Michael Scott Jackman, M.P.A.

Background

In 2006, a decline is documented in both the absolute number and the rate of civil trials and jury trials in state and federal courthouses everywhere.  It’s a decline that’s both long-term over the prior century and precipitous in the prior two decades.

In the federal courts, for example:

• the percentage of case terminations through civil trial dropped from 11.5% in 1962 to 1.7% in 2004;
• the absolute number of civil trials dropped from 5802 in 1962 to 3951 in 2004; and
• all that happened despite having five times as many cases filed in 2004 as in 1962.

One reason cited for the decline, back then, is mediation and other alternative dispute resolution processes (ADR).

What’s unusual about this particular study is that it focuses on cases in which the federal government is a litigant.  The cases involve, almost entirely (96%), employment discrimination and Federal Torts Claims Act claims in which the federal government is a defendant. 

Statistical Findings

Here are some statistical findings from the study:

• 65% of cases settle when ADR is used, but only 29% of cases settle when it is not;
• tort cases are significantly more likely to settle than employment discrimination cases (73% vs. 60%); and
• significantly more cases settle when ADR is voluntary than when it is mandatory (71% vs. 50%).

Additionally, the study finds: “the earlier ADR is used in a case, the more quickly the case reaches resolution.”

Qualitative Determinations

Here are some qualitative determinations from the study:

• In terms of monetary outcomes, ADR results are similar to traditional litigation results—i.e., plaintiffs achieve about the same amount of relief from litigated and mediated results.
• Since significantly more cases settle when ADR is voluntary than when it is mandatory, an opt-out program is likely more effective than a direct-mandate program.
• State court studies also conclude that early referrals to mediation, with an opt-out for good cause, effectively facilitate settlement.

Final Recommendations

Here are final recommendations from the study, based on its findings:

1. Mediation programs that direct cases to mediation, with an opt-out for good cause, are more effective than strictly-mandated programs; and
2. Early referrals to mediation, with an opt-out for good cause, are more effective than late referrals. 

Conclusion

Here’s a thumbs-up to this study.  While its efforts are dated, its findings and recommendations are significant and important for courthouses everywhere.

Any time a court is feeling heavy workload and docket pressure and is looking for relief, this study provides two points of direction for managing the problem:

1. Establish a system that automatically refers cases to mediation, with an opt-out for good cause; and
2. Assure that the system makes early mediation referrals—not later ones.

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