Mediating With Department Of Justice Of The U.S. Government: A Study

U.S. Government (photo by Marilyn Swanson)

By: Donald L Swanson

We are focusing, here, on a mediation study titled, “Dispute Resolution and the Vanishing Trial: Comparing Federal Government Litigation and ADR Outcomes” (the “Vanishing Trial Study”). [Fn. 1]

Some History & A Hypothesis

A 2006 publication titled, “A World Without Trials,” documents a decline in the rate of civil trials in state and federal courts.  Focusing on federal courts, the publication reports that cases terminated by civil trials dropped from 11.5% in 1962 to 1.7% in 2004, while the number of civil case filings in federal courts increase five-fold.   

The 2006 publication hypothesizes that mediation is one factor explaining what happened. 

The Vanishing Trial Study

The World Without Trials publication, and its mediation hypothesis, “sparked a vigorous debate,” which includes the linked Vanishing Trial Study on mediating with the Federal Government.

The Vanishing Trial Study focuses on mediation within the U.S. Department of Justice.  [Note: while the study refers to “alternative dispute resolution” processes (“ADR”), generally, the study appears to focus almost exclusively on mediation-type activities—not arbitration.]

While the Vanishing Trial study is aged (dated 2009), its findings are still instructive, especially because of the study’s large sample size.

Findings From The Mediation Study

Here are some of the findings from the Vanishing Trial Study.

  1. Mediation is used most frequently (in 96% of cases) when the U.S. government is a defendant.
  2. Federal Tort Claims Act and employment discrimination cases, combined, represent a disproportionate number (96%) of those cases.
  3. Assistant US Attorneys report subjective estimates that, (i) mediation saves time and money, when compared to litigation cases, and (ii) mediation is efficient and effective in resolving disputes.
  4. 65% of cases settle when mediation is used, compared to only 29% when it isn’t.
  5. Significantly more cases settle when mediation is voluntary than when it is mandatory (71% vs. 50%).
  6. Tort cases are significantly more likely to settle than employment discrimination cases (73% vs. 60%).
  7. Monetary outcomes in mediation resolutions do not differ significantly from monetary outcomes in litigation—there is no evidence of “second class justice” for mediation.
  8. The earlier mediation is used in a case, the more quickly the case reaches resolution—this finding replicates other studies of state court cases.

The study concludes that an early mediation referral, with an opt-out option, may be an effective tool for increasing the effectiveness and efficiency of mediation efforts.


While the Vanishing Trial Study of mediation linked and discussed above may be aged, its findings and conclusions appear to be timeless.


Footnote 1.  This article, (i) is by Lisa Blomgren Bingham, J.D., Tina Nabatchi, Ph.D., Jeffrey M. Senger, J.D., and Michale Scott Jackman, M.P.A., and (ii) is published by the Ohio State Journal on Dispute Resolution, in 2009 [Vol. 24:2, at 225-262].

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