I stumbled upon an article in mediate.com discussing an empirical study conducted in the Singapore Courts about their use of mediation. The actual article, (How Should the Courts Know Whether a Dispute is Ready and Suitable for Mediation? An Empirical Analysis of the Singapore Courts’ Referral of Civil Disputes to Mediation.) appearing in the Spring 2018 edition of the Harvard Negotiation Law Review (Vol 23 at pages 268-317) is written by Dorcas Quek Anderson, and Eunice Chua, both Assistant Professors at Singapore Management University School of Law and Ngo Tra My, a PhD candidate at the Graduate School for Integrative Sciences and Engineering at the National University of Singapore.
Their study was aimed at two questions: Whether a mediation was likely to be more successful the earlier it was referred to mediation and whether other factors played a significant role in the success of the mediation and the participants’ experience at mediation. (Id. at 275.)
To answer these two questions, the researchers looked at a number of factors, including, the timing and stage of the referral of the case to mediation, the “ripeness” of the dispute for mediation including the time, state and level of contentiousness of the parties, the amount of the claim, the amount of time taken to complete the mediation and whether that occurred in one long session or over several sessions, and the type of mediator such as whether the mediator was legally trained or without legal training. (Id. at 270-294.)
To answer these questions, they looked at 235 civil cases referred to mediation in 2014 and 2015 in the Supreme Court of Singapore (which comprises the intermediate appellate court and the court of last resort) and 489 civil cases in 2015 in the State Court (which comprises the trial courts such as the District Court, Magistrate’s Court and Small Claims Tribunals) (Id. at 276, 279 and 292.) While the study discusses the results of the Supreme Court and then the State Court separately, it also combines the results to provide an overall conclusion.
As one might suspect, the researchers were able to draw the following conclusions:
- Earlier referral of cases is associated with a higher likelihood for resolution at mediation.
- Settlement is also more likely when mediation is attempted at the close of pleadings stage without any interlocutory application filed. The likelihood of settlement decreases once pre-trial applications are filed.
- Nonetheless, the final multivariate analyses of the combined and State Courts’ studies strongly suggest that there are more critical variables than the timing and stage of referral. (Id. at 308-309.)
As the researchers note- the findings of their study are similar to those of other studies:
“… cases were more likely to settle if there were fewer months between the mediation and when the case was filed, and the findings showing that court cases were less likely to settle if there were pending interlocutory applications. “[i.e., motions on discovery issues, to dismiss or for summary judgment etc.] (Id. at 309.)
These findings are not surprising. The earlier the case goes to mediation, the less invested and less entrenched are the parties in the case. If represented by counsel, those fees have not yet become astronomical making it difficult to settle. In fact, the study found that the “…presence of one or more contested applications [i.e. discovery or motion disputes] decreases the odds of settlement by 22% (in the combined data) and 23% (for the State Courts) ….” (Id. at 310.)
Similarly, the researchers found a “substantial association” between the amount in dispute and the likelihood of settling the claim. With respect to “…the combined court data, every $100,000 [$1.00 =USD$.75] increment in the quantum of dispute decreases the probability of settlement by 1%.” (Id. at 310.) Thus, the smaller the amount in dispute, the more likely the case would settle at mediation, especially if the settlement covered the estimated legal costs. (Id.)
The number of mediation sessions also impacted the prospect of settlement. “The likelihood of settlement generally decreases with a higher number of mediation sessions, although it also increases when the number of mediation sessions is unusually high. “(Id. at 313.) At the same time, the likelihood of settling increased by 17% with each hour spent at mediation. Thus, the longer the mediation session, the more likely the case would settle. Perhaps, momentum played a role, here. (Id.)
Finally, the study found no real connection between whether the mediator was legally trained and the settlement rate at mediation. (Id. at 290-291 and 301.)
The conclusion: mediate early before the case and the parties become contentious, entrenched and emotionally attached to the case and the outcome.
…. Just something to think about.
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