Mediation Improves Litigants’ Impressions—Whether Settlement Is Achieved Or Not (A Study)

By: Donald L Swanson

A study compares the self-reported experiences of individuals who use mediation in a lawsuit with those who go through a lawsuit without mediation.  It uses surveys of litigants taken before and immediately after the lawsuit—and then 3-6 months later.

“Radically Different” Study

The study claims to be “much more rigorous” and “radically different” from prior studies.  That’s because:

• It is “the only one in the country that compares attitudes and changes in attitudes” of,
  • litigants who use mediation during a lawsuit; with
  • litigants who are never offered mediation and go through the entire lawsuit without mediation; and
• It includes two types of litigants—those who reach a mediated settlement and those who don’t:
  • it separates the act of reaching an agreement from the impact of the mediation process; and
  • this separation isolates the impact of the mediation process itself.

The Study’s Analysis

The study offers three types of analysis.

First is a focus on the short-term, considering each litigant’s:

1. attitude toward other participants;
2. sense of empowerment and having a voice;
3. sense of responsibility for the situation;
4. belief that the conflict has been resolved; and
5. satisfaction with the judicial system.

Second is a focus on the long-term, considering each litigant’s:

1. attitude toward other litigants;
2. view of the effectiveness of the outcome; and
3. satisfaction with the judiciary.

Third is on the probability of returning to court for enforcement in 12 months.

What follows is a summary of the study’s findings.

Short-Term Analysis

The study finds that litigants who use mediation are more likely in the short term, than those who don’t, to report:

1. they could express themselves, their thoughts, and their concerns;
2. all of the underlying issues are identified and addressed;
3. the underlying issues are resolved;
4. the underlying issues are completely resolved;
5. the litigants acknowledge responsibility for the situation; and
6. a movement from initially agreeing toward later disagreeing with this statement: “The other people need to learn they are wrong.”

The study determines that all such findings are “uniformly applicable” to litigants who go through mediation “whether or not an agreement was reached.”

In a variation on the “whether or not an agreement was reached” determination, the study finds that:

• litigants who actually reach a mediated settlement are more likely to be “satisfied with the judicial system” than all other litigants;
• by contrast, litigants who reach a negotiated settlement on their own (i.e., without mediation) do not experience the same heightened satisfaction with the judicial system; and
• accordingly, it is the mediation process itself that creates the heightened satisfaction—not the settlement.

The study also makes the following incidental findings in the short term that are not part of the main focus:

1. plaintiffs are more likely to report expressing themselves in court than non-plaintiffs in court;
2. non-plaintiffs are more likely to report expressing themselves in mediation than plaintiffs in mediation;
3. plaintiffs are somewhat more likely to report expressing themselves in court than in mediation; and
4. older individuals are more likely to report that issues are resolved in mediation than are younger individuals.

Long-Term Analysis

The study makes these long-term findings.

Litigants who use mediation are more likely 3-6 months later, than those who don’t, to report:

1. an improved relationship with the other litigant;
2. an improved attitude toward the other litigant;  
3. that the outcome is working;
4. satisfaction with the outcome; and
5. satisfaction with the judicial system.

Probability of Returning to Court

The study also makes the following findings.

Cases that achieve a mediated settlement are less likely to return to court for an enforcement action in the next 12 months than:

• cases that reach a settlement without mediation;
• mediated cases that fail to reach an agreement; and
• cases that end with a court ruling.

Conclusion

Here’s a “Thank you” to those who created, executed and wrote the report of this study.

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Footnote 1.  The Report of the study is titled, “Impact of Alternative Dispute Resolution on Responsibility, Empowerment, Resolution, and Satisfaction with the Judiciary: Comparison of Short- and Long-Term Outcomes in District Court Civil Cases.”  The study and its Report are attributed to many people, but most specifically to Lorig Charkoudian, Executive Director of Community Mediation Maryland in collaboration with the Maryland Administrative Office of the Courts.  The Report is dated February 2016.

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