Mandatory v. Voluntary Mediations: Empirical Data from Pilot Programs

By: Donald L. Swanson

We’ve all wondered, over the years, about the advisability and effectiveness of mandatory mediation.

Turns out that mandatory and voluntary mediation programs can achieve about the same results when:

–judges in a mandatory system accommodate participants who don’t want to mediate, and

–judges in the voluntary system encourage mediation.

Empirical Data

Fortunately, California has empirical data on comparing mandatory and voluntary mediation activity.

Back in 1999, California established five “Early Mediation Pilot Programs”—one in each of these cities: San Diego, Los Angeles, Fresno, Contra Costa and Sonoma.   In 2004, The Administrative Office of the Courts issued an Evaluation of these five programs.

The following is a summary of some conclusion and detail comparisons from the Evaluation.

Conclusions from the Data

Here is a set of Conclusions from the Evaluation’s data:

“The mandatory and voluntary pilot programs generally followed the expected pattern”:

–a higher percentage of cases were referred to mediation in the mandatory programs than in the voluntary programs, but

–a lower percentage of cases reached settlement in the mandatory programs than in the voluntary programs.

–However, the referral, mediation, and settlement patterns in the San Diego (mandatory) and Contra Costa (voluntary) programs were similar to each other, suggesting that:

(i) mandatory mediation programs may be able to achieve high resolution rates when courts consider party preferences in making referrals to mediation, as they did in the San Diego pilot program, and

(ii) voluntary mediation programs may be able to achieve high referral rates when courts urge parties to consider mediation and provide some financial incentive to use the court’s mediation program, as they did in the Contra Costa pilot program.

–The low percentage of cases that stipulated to mediation in Sonoma’s voluntary pilot program model, in which the parties paid for the mediation, suggests that incentives are needed to encourage litigants in smaller-value cases to participate in mediation.

Detail Comparisons

Detail comparisons in the Evaluation of San Diego (a mandatory Program) and Contra Costa (a voluntary Program) include the following:

Overall, the referral, mediation, and settlement patterns in San Diego (mandatory) are quite similar to those in Contra Costa (voluntary). These similar patterns may reflect the fact that, in practice, referrals in both programs result from a similar combination of judicial pressure, party preferences, and financial incentives.

In San Diego, the court had authority to order cases to mediation but took party preferences into account in deciding whether to issue such orders.

In Contra Costa, the parties chose whether to stipulate to mediation, but the court urged parties to use the mediation program.

In both programs, the court subsidized the cost of mediation;

–in San Diego the court paid the mediators for the first four hours of service, and

–in Contra Costa the court required the mediators to provide two hours of mediation services at no cost.

Such comparisons suggest that referral, mediation, and settlement rates are less affected by mandatory v. voluntary than by its procedures.

–mandatory programs may be able to achieve high-resolution rates when courts consider party preferences in making referrals to mediation, and

–voluntary programs may be able to achieve high referral rates when courts urge parties to consider mediation and provide some financial incentive to use the court’s mediation program.

Conclusion

Wow.  That’s great information!

Kudos to all in California who had the foresight and wisdom to create the Pilot Programs and then to provide an empirical study and analysis of those Programs!

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