Recently, I was sent a study that was published in The Jury Expert (www.astcweb.org) entitled “Civil Case Mediations: Observations and Conclusions” by James A. Wall, Jr., and Suzanne Chan-Serafin.
 

      The authors researched 62 civil case mediations in two cities to determine, empirically, whether the behavior of the mediator and/or that of the plaintiffs and/or defendants influenced the process or outcome of the mediation. The cases observed were mediated by attorneys (21 of them) and retired judges (8 of them) who had practiced law on average for 30 years and had mediated on average 606 cases over about nine years.
 

      First, the authors found that the settlement rate varied with the type of case. “Specifically, 89% of liability cases other than motor vehicle and medical malpractice (e.g. slip and falls. . .) ,69% of motor vehicle cases and 75% of medical malpractice cases resulted in settlement agreements.” (Id.) In contrast, 10% of contract cases and 50% of employment cases ended in settlement. Further, they found that the smaller cases settled more often than the larger ones.
 

      Second, the authors found that whenever a party had high goals (aka unrealistic expectations), the mediator did, indeed, use assertive techniques/statements to provide the dose of reality.  

      Third, the authors also found that their chicken-and-egg cycle for the plaintiffs’ and defendants’ behaviors was an accurate prediction:
“Specifically, plaintiffs made higher concessions than the defendants; mediators expected they could get higher concessions from the plaintiffs; therefore, they applied more assertive techniques to the plaintiffs. (Id.) 

       The authors found that the mediators did not use “. . .more assertive techniques when there were low concessions and non-agreement.” Id. Rather, two process were at work when there was non-agreement. In one set of cases, the mediators did use assertive techniques in the face of excessive demands by plaintiffs, but to no avail. In the second type of cases – contract and employment – “. . .the mediators became bogged down in the cases or became impatient and instructed the disputants to simply exchange numbers. . . .” (Id.) Not surprisingly, few agreements were reached.  

      Finally, but most importantly, the authors found that the behavior of the mediator really had no effect on whether the case settled. In 27 of the 62 civil cases reviewed, the mediators’ behavior had no effect upon the agreements. However, in the other 35 cases, “the mediators’ techniques affected the disputants’ behaviors but even in these, there was evidence that the mediators’ behaviors were occasionally reactions to – rather than a cause of – a plaintiff’s or defendant’s behavior”. Id. In short, either the mediator did not affect the outcome or her behavior was affected by the parties’ behavior and not vice versa. Id.

      In sum, it seems that this research supports the assertion of Judge Wayne Brazil that mediators “should understand that they are hosting a negotiation process.” Id.
 

      Obviously, as a mediator, I find this last result disconcerting. While I have hosted many a negotiation process in which I know I did not “affect” the parties’ behaviors because the matter settled quite easily and quickly, I also knew that I have hosted many a mediation in which my mediation skills did make a difference. In my gut, I know that the case would not have settled without my assistance. To say my behaviors in such instances were reactive rather than proactive to those of the parties, misapprehends the art and science of interpersonal relationship skills. As a mediator, I neither “control” the substance nor the process of the mediation. Rather, I must follow the lead of the parties, to see where they are and assist them in moving towards resolution. I “go with the flow,” take my cues from them and do not “call the shots.” So, my behavior must be “reactive” but at the same time, my “reactive” behavior is designed to channel the parties towards realistic goals and expectations, towards helping a party understand (or, at least, acknowledging) the other’s viewpoint, towards making concessions, towards understanding the needs and interests of all concerned and hopefully, towards resolution.

      So while the study is interesting, I am not sure that it understands really how a mediator plys her craft and uses the tools in her toolbox.

       What do you think?. . . Write a comment!

       . . . Just something to think about.

  If you have not done so already, do not forget to sign up for the Southern California Mediation Association’s 2009 SCMA Conference I am in charge of it and hope to see y’all there! 

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       As some of you know, I am the incoming president of the Southern California Mediation Association (“SCMA”). Before I take my oath of office, I must go through a rite of passage which is chairing the SCMA’s Annual Fall Conference. This year it will be held on Saturday, November 7, 2009 at Pepperdine University, Malibu, California.

       The title of the Conference is “M3 – The Next Generation” and will explore the future of mediation, especially all of the new and varied venues in which it can and will be used. The presenters are from throughout the United States and Ireland and so will be discussing quite diverse views on mediation and its future. I expect it all to be quite fascinating. (See, 2009 SCMA Fall Conference .)    

      Of special interest will be the keynote presentation by Dr. Daniel Druckman from George Mason University who is the Randolph Lowry Lecturer Award Recipient. While he will be speaking on “Intuition or Counter-Intuition?: The Science Behind the Art of Negotiation and Mediation,” Dr. Druckman has also conducted studies on e-mediation or the use of a software program to assist in mediating disputes.

       Along with James E. Druckman from the University of Minnesota and Tatsusi Arai from George Mason University, Dr. Druckman published a study entitled “e-Mediation: Evaluating the Impacts of an Electronic Mediator on Negotiating Behavior” in 13 Group Decision and Negotiation 481-511 (2004).
 

      In the study, Dr. Druckman and his co-researchers conducted three experiments to determine the impact of an electronic negotiation support system (“NSS”) or, in essence, a software program, on negotiating behavior. The NSS system designed by Dr. Druckman several years earlier,

      “. . . consists of suites of forced – choice questions grouped into five categories, parties, issues, delegation activities, situation and process. Some questions prompt branching to new steps of questions. . . . Other questions, referred to as flipper questions, take into account case – specific contingencies. . . .” (Id. at 484). (Emphasis original)

       Based on the answers received, algorithms are used to “generate a diagnostic grid” which will then lead to “projections of possible outcomes.” (Id. at 484-5). In short, a negotiator inputs the answers to certain questions, and the NSS provides diagnosis (e.g. impasse) and solutions:

      “Specifically, when the diagnosis and projections shown on the grid indicate an impasse in any category, the program provides an analysis of the source of the impasse and a link to advice on how to resolve it.” (Id. at 485-6).

       Overall, the results of the three different experiments revealed that while the negotiators were able to reach agreement more often using e-mediation than simply negotiating on their own and reflecting on what should be the next strategy or move, the negotiators still preferred to use a “live” mediator. ((Id. at 507). The negotiators “. . .had more positive perceptions of the process and outcome” when using a “live” mediator than the NSS software program although they obtained agreement more often and on more issues using the latter. (Id. at 506). Simply put, “perception” was more important than “reality.” (But, isn’t this true in any dispute?)

       Needless to say, after reading this study, I began wondering whether all of my mediation training and skill is for naught: am I going to be replaced by a software program that will have no difficulties in settling cases? I certainly hope not. There has to be something about human interaction that the best robot on earth (e.g. R2-D2 or its companion C-3PO) will never be able to replicate.

       I am keen to learn more from Dr. Druckman at our SCMA Conference! I hope you can join me.

       . . .Just something to think about.

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       My husband is a customs lawyer. He specializes in import-export law and international trade. Thus, for the most part, he represents importers who are at odds with U.S. Customs and Border Protection (“CBP”); that is, the U.S. Government. When the issue winds up in federal court, he is dealing with an Assistant U.S. Attorney or an attorney in the Department of Justice, Civil Division, Commercial Litigation Branch.
  

       Being a mediator, I always recommend that he use mediation to resolve his cases. His response is that he is dealing with the Government, and it does not mediate.

       Well, a recent  unpublished study proves him wrong. Conducted by Lisa Blomgren Bingham, J.D., Tina Nabatchi, Ph.D., Jeffrey M. Senger, J.D., and Michael Scott Jackson, M.P.A. and entitled “Dispute Resolution and The Vanishing Trial: Comparing Federal Government Litigation and ADR Outcomes”, the study concluded that when ADR was used in civil cases handled by the U.S. Attorney’s office, 65% of them settled. In contrast, when the U.S. Attorney’s office did not participate in ADR, only 29% of its cases settled. Further, “[s]ignificantly more cases settled when ADR was voluntary than when it was mandatory (71% v. 50%), and tort cases settled with more frequency than employment discrimination cases (73% v. 60%)” (p.1). (There are no statistics provided for Customs cases!) The next finding provides strong support for the use of ADR:

      “AUSAs [Assistant United States Attorneys] spent an average of $869 in neutral fees and estimated that the process saved $10,735 in litigation expenses per case. AUSAs spent an average of 12 hours preparing for ADR and 7 hours in the ADR process per case, which they estimated saved 88 hours of staff time and 6 months of litigation time per case” (p. 1).

       When one litigates against the Government, one might assume that the Government has an unfair advantage. Well, the study found that the “ADR outcomes were not significantly different than litigated outcomes, indicating that the process was neutral, favoring neither private parties nor the government” (p. 1).

       To conduct the study, the researchers first obtained general information about all civil cases handled by the U.S. Attorneys’ offices throughout the United States between 1995 and 1998. They then created a database limiting it to those matters in which ADR had been used. They further categorized these cases in terms of types of cases and disposition. In the end, the database contained 15,288 cases (pp. 23-29). Of these, 14,777 went through the traditional litigation process while 511 cases participated in ADR (p. 29).
 

      After reviewing the data, the researchers found several interesting things in addition to their conclusions noted above. First, they found that ADR was used most often in Federal Tort Claims Act (FTCA) and in Employment Discrimination cases. More specifically, FTCA suits comprised 39% of all the cases in the database but 66% of those using ADR. Similarly, Employment Discrimination cases comprised 22% of all cases in the database, yet 30% of those cases using ADR. Together, these two types of cases made up 96% of the 488 cases using ADR, but only 60% of the cases following the traditional litigation process (p. 30).

       The researchers also found that “ADR was used disproportionately often when the government was a defendant in the lawsuit” (p. 31). More specifically, 96% of the cases used ADR in which the government was a defendant (p. 31).

       The researchers also examined the “macrojustice” or “fairness” of the ADR process: did a particular dispute resolution process favor one side or the other?:

     ” Issues of macrojustice take on a heightened importance when the federal government is a litigant. If the government received better results in ADR than in traditional litigation, private parties would be reluctant to use ADR with the government, because they would fare better in court. Conversely, if the government did worse in ADR than in litigation, government counsel would choose not to participate in the process. . .”  (pp. 32-33).

       What the researchers found was that the ADR process did not change the outcomes that would otherwise result from litigation. The relief obtained in the ADR process was about the same as would have been obtained at trial. “. . . ADR did not have the macrojustice effect of altering traditional legal remedies in these cases” (p. 36).

       Lastly, and to no surprise, the researchers found that the sooner the ADR process was used during the life of a case, the less time it took for the case to reach final disposition (p. 37). Thus, where ADR was introduced within the first 90 days after the case was filed, the case took an additional 92 days to resolve such that the complete life of the case was 150 days. In contrast, where ADR was first introduced within 91 to 180 days after the case was filed, it took on average another 190 days to resolve it: the total life of the case was 339 days or almost a year
(p. 37).

       In conclusion, ADR works in federal court, even when the government is the other party to the lawsuit, and the results obtained using ADR do not differ significantly than those obtained after a trial.

       Now. . . if I can just convince my husband to use mediation in his cases against the government. . . .

       . . . Just something to think about.

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      In August 2007,   I wrote a blog on a then newly issued Ninth Circuit opinion, Babasa v. Lenscrafters, Inc.,  498 F.3d 972 (9th Cir. 2007) (“Babasa”) in which the Court held that in order to determine whether removal jurisdiction existed under 28 U.S. C. §1446(b), mediation confidentiality would not attach to a letter written in preparation for  mediation  which explained the nature and extent of damages, and thus, the amount in controversy for purposes of determining federal jurisdiction under 28 U.S.C.§ 1332.

      In holding that the letter was admissible (even though created for mediation) in order to determine if the removal petition was timely filed (which the court held it was not),  the Court gave extremely short shrift to the principle of mediation confidentiality.

      While this ruling disturbed me at the time, I did not research this apparent abrogation  of  this paramount principle of mediation until recently when a colleague requested that I write an article on the topic of mediation confidentiality in federal courts. The article will appear in the inaugural issue of The Federal Bar Association ADR Section’s Newsletter, The Resolver  appearing  in September 2009. (To get a sneak preview, click on the following: mediation-confidentiality

      What I learned from my research is that one must be extremely careful in federal court mediations.  While Congress, indeed, passed the Alternative Dispute Resolution Act of 1998, Pub. L. No. 105-315, 112 Stat. 2998 (105th Cong, 2nd Sess.)(October 20, 1998) codified at 28 U.S. C. §§ 651- 658, mandating, among other things, that each district and appellate court enact local rules providing for confidentiality in alternative dispute resolution processes, the courts interpret this mandate very narrowly. Quite often, they will not apply it when considering petitions for removal or when the issue involves information or documents gleaned during settlement discussions held  after the conclusion of the actual mediation session or to be used for purposes other than settlement.

      Moreover, a very few courts have created a common law “mediation privilege” which differs from “mediation confidentiality.”  As explained by United States District Judge Margaret Morrow in Molina vs. Lexmark International, Inc., 2008 U.S. Dist. Lexis 83014, 77 Fed. R. Evid. Serv. (Callaghan) 905 (C. D. Cal., September 30,   2008):

      “Confidentiality” refers to a duty to keep information secret while “privilege” refers to protection of information from compelled disclosure”…  Communications are confidential when the freedom of the parties to disclose them voluntarily is limited; they are privileged when the ability of third parties to compel disclosure of them, or testimony regarding them, is limited. (Citation omitted). Id. at 35.

      Because the policy in federal court is the “the public … has a right to every man’s evidence…” (Jaffee vs. Redmond, 518 U.S. 1, 9 (1996)), the federal courts tend to favor admitting evidence rather than excluding it whether the attempted exclusion is based on ‘mediation confidentiality’,  the federal common law “mediation privilege” or Fed. R. Evid. 408  or 501. These four principles create quite a tense interplay in the case law. Which one wins is determined solely and strictly on  a case by case basis.   
From my research and analysis, I learned that a party attending mediation in federal court must be extremely leery: “mediation confidentiality” in federal court is often oxymoronic.

      …. Just something to think about.

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