From Michael Zeytoonian’s Dispute Settlement Counsel Blog
Does the way a dispute gets resolved – either through a negotiated out of court settlement process or through a verdict or finding of a court — impact the level of compliance with the terms of the resolution? Put differently, are people more or less likely to carry out the terms of the final resolution when it is the result of a process like mediation or collaborative law or other non-adversarial processes?
One answer was recently provided in an article by Lorig Charkoudian in the Winter, 2010 issue of the Conflict Resolution Quarterly, addressing the issue of what happens after negotiated settlements. We know from studies, literature and statistics that there is a high rate of successful resolution in mediated cases, just as there is a high rate of satisfaction with the mediation process. But Charkoudian’s articles focuses on the rate of compliance with the terms of a negotiated agreement, compared with court resolved cases.
Charkoudian looked at the compliance of participants both as to payment made in small claims cases as well as compliance with some neighborhood crime cases. A study of Maine courts compared the compliance rate of payment made by defendants using mediation with those that were decided by the court. In the mediated cases, 70.6% defendants paid in full, 16.5% paid in part and 12.8 percent did not pay at all. By contrast, in the cases decided by the judge, only 33.8 % of defendants paid in full, 21.1% paid in part and 45.1 % did not pay at all.
Neighborhood crime cases were measured by the number of post resolution calls to the police as well as subsequent filings of new charges against a party after neighborhood conflicts were are resolved through the use of mediation. She discussed studies and statistics involving the Baltimore City Police Department, the Harrisburg (PA) Police and the North Carolina courts.
The authors of the studies attributed the difference to the fact that in mediated cases, the parties are part of the developing of the solution. The authors concluded that because of this, the parties are more likely to follow through with their commitment, as they took a personal responsibility in the resolution. This was further supported by statistics that showed that those parties who opted for mediation but were unsuccessful and had to then turn to the courts still had a higher rate of compliance than those cases that didn’t try mediation: 52.8 % paid in full, 13.9 % paid in part and 33.3 % did not pay anything.
In the neighborhood crime cases, a similar difference was found in the rate of police calls about the perpetrators after the mediated settlement vs. the court-determined outcomes. The mediated cases resulted in a decrease in police calls (180 less police calls in mediated cases) about the perpetrator and a cost savings to the police department. Likewise in Baltimore City there was a decrease in police calls – 8.53 calls less in the six months after the mediation.
The conclusions are these: Civil cases that were mediated were more likely to show a decrease in follow-up court involvement for enforcement than cases that were not mediated. Criminal cases that were mediated were more likely to show a decrease in police involvement after the mediation compared to cases that went through the courts, and with that decrease in police involvement comes a cost savings to municipalities. In both cases, this also comes with a cost savings to the courts and to city and state budgets, not to mention a cost and times savings and an avoidance of stress and aggravation that would come with having to pursue the payor for non-payment.
These findings add yet more support for an increasing compelling case for utilizing non-adversarial, non-court based processes to resolve disputes of many kinds.
The Court of Appeals (Second Circuit) issued it's opinion on the Wimsatt v. Kausch writ of mandate and upheld the mediation confidentiality statutes under California Evidence Code Sec. 1119. This...By Jan Frankel Schau
James Alfini shares his concern of lawyers being trained to do case evaluations instead of mediation, but still using the term 'mediation' when they're doing case evaluations.By James J. Alfini