Is Mediation Overused?

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This article is part of a panel presentation, “Is Mediation Overused?”
with Elden Rosenthal and Richard G. Spier, prepared for Oregon Law Institute CLE on Mediation Tools and Techniques for Lawyers at the Oregon Convention Center (October 19, 2012). They discuss whether mediation is overused in certain settings and if more cases should go through a complete jury trial.

1. Elden Rosenthal’s “Second Thoughts on Mediation”

As a fulltime mediator, I was intrigued by Elden Rosenthal’s Oregon
State Bar Bulletin article on, “Second Thoughts on Mediation—A Trial Lawyer’s View”  (Feb./Mar. 2012).

            I found that I had a few points of important disagreement. For example, I think it is difficult for even experienced, astute trial lawyers to predict with accuracy the results of most jury trials. For another example, I think that mediations should not be rushed—it takes time for parties to tell their stories to a third-party neutral, to feel heard and respected, and then to come to understand the risks (especially uncertainty of result) and other downsides of proceeding to trial. And even if one side is already well-prepared to let go of the emotions and positioning arising from often years of conflict and litigation, the mediator may need time to carefully pursue the process with the other side. I will comment further on these issues during our panel presentation.

            However, on what is probably Elden’s most important set of interrelated points—that mediation is overused, that lawyers should be able to talk directly and candidly with each other to explore realistic settlement terms, and that too few civil cases go to jury trial—I have long been and remain in complete agreement.

            As I wrote in “A Mediator’s Fantasy—The Perfect Mediation” (Oregon State Bar Bulletin, Nov. 2009;  http://www.osbar.org/publications/bulletin/09nov/mediator.html), “Most cases need not be mediated. Capable counsel should be able, in most instances, to prepare, evaluate, negotiate, and, if necessary, try most cases. The low-tech tools of meeting for coffee or talking directly on the telephone enable the well-prepared and confident advocate to participate in a discussion of realistic ways to resolve a case, without communicating weakness or fear.”

2. Just How Often Do We Mediate?

While I thought that some cases go to mediation unnecessarily, my sense from being a fulltime neutral in Oregon for over twenty years was that the majority of civil cases do not go before a mediator or settlement conference judge. Instead, I believed that most civil cases were resolved the way I and most colleagues seemed to work when I left law practice in 1992 to start my neutral practice—most cases were settled by direct negotiations, some by motion, some by trial, and relatively few by mediation or settlement conference. I recognize that there has been big growth in my industry of private mediators and that courts increasingly have mandatory settlement conferences for cases past a certain time after filing, but I still had the perception that lawyers did not take most civil actions before a mediator or settlement judge.

In preparing for this presentation, I thought it might be interesting to get a better sense of how pervasive mediation has become in civil practice. So, I decided to do an informal, unscientific survey to see if I could at least get an anecdotal sense of what is happening.

Here’s what I did. I picked essentially arbitrarily over fifty lawyers that I know have civil practices—some tort (plaintiff or defense), and some business litigation (including employment, real estate, commercial, and construction). I sent them the following email:

Dear [name]

            Can you answer one quick survey question for me, to help me prepare for a CLE presentation?

            I am Planner and one of the speakers at on Oregon Law Foundation CLE on “Mediation Tools and Techniques for Lawyers,” on October 19, in Portland.
           
My speaking assignment is as co-panelist with Elden M. Rosenthal on, “Is Mediation Overused?”

            To assist in preparation, I’d like to get a better idea of what percentage of civil cases go to mediation and court settlement conferences, and am therefore asking a sample of Oregon lawyers the following question:

            About what percentage of civil cases that you handle (whether filed or unfiled, plaintiff or defense) do you take to mediation (including court settlement conferences)?

            (If you handle family law cases, please do NOT include these in your estimate.)

            If you will Reply right now with your quick estimate for this non-scientific survey, I’ll combine it with the other responses I receive, and of course keep your answer confidential.

Thanks and best wishes,

Rich

3. Results of the Survey—Wide Range of Use, Some Very Low and Some Very High

I received responses from almost all the people I asked. In addition to providing the requested percentage answer, many provided insightful comments and commentary. Given the questionable statistical validity of the survey, I am setting out the raw responses here, with some editing for clarity.

I would say about 10% as a rough estimate.  Maybe as low as 5%.

I would say about twenty percent of my cases (filed and unfiled) – all employment law, representing employees- end up in mediation (or a settlement conference).

I would say that about 10 to 20% of my cases go to mediation. I usually go to mediation only when I think that the plaintiff or the opposing counsel need the skills of a mediator to help resolve the case (e.g. The plaintiff has unreasonable expectations, there is a client control issue, etc.) or in multi-party more complex cases.  I do not think, at least in our firm, that mediation is overused, but rather is one of the tools in our toolbox, used when needed.

I would estimate that no more than 25% of the cases that I have go through a formal settlement conference although, as you know, probably upwards of 85% do get settled.

 30%

About 33 percent of my cases get mediated. 

My best guess would be 33% of all the litigation cases I handle.

 I’d say 33% of my litigation or dispute cases, with percentage going up as the stakes go up.

Probably a third or more but I shy away from judicial settlement conferences. For one, there are few judges who have the time it really takes and I’ve never thought the courtroom setting was very conducive to the process.

I conferred with my cohorts here and we think about a third.

I’m familiar with Elden’s views on mediations/settlement conferences in general and while I understand his point of view, I do not share it.  I would estimate that about 35% of our cases go through mediation or settlement conferences.  Some of the counties mandate the settlement conferences, providing no choice in the matter, but I think statistically, even if not mandated, it would still be about the same percentage.

Probably 35%. For your own edification, the majority of that is judicial settlement conferences, which are increasingly being required by certain courts in the state. For strict mediation-only, 5-10%.

30-40% are mediated.  I don’t think it is possible to overuse mediation.  It is always less expensive and less risky than litigation.

I calculated that, of the cases that I have handled the last few years, about 43% have gone through mediation. 

I would guess that about 50 percent of my cases go to mediation. 

Approximately 50% is my answer. 

60%.

About 60% of our filed cases go to mediation or court settlement conferences.  We have never mediated a case that has not been filed.

It is my belief (without any statistical evidence to support it) that approximately 2/3 (67%) of my cases are pulled into some form of ADR:  mediation or court settlement conferences. 

I would say about 70% of cases, sooner or later, are submitted to mediation. Generally, I do not use judicial settlement conferences because of the constraints on the judge’s time.

I would estimate that 70% of my cases (civil only anyway) go to mediation or a court-mandated settlement conference.  They don’t necessarily settle, but we go through the process.  In terms of actual settlements, I settle more cases through mediation then court-mandated or supervised settlement conferences.

I estimate that I mediate 70 percent of the civil cases I handle – both on the plaintiff and defense side.

I would say 75% of my cases go to mediation.  Sadly, we don’t try too many cases.   And, of the cases that I settle, I almost always mediate them because I find the process is very valuable for the parties.  My sense is that getting the parties together gets me a better number for my client, the defendant, than if I handled negotiations with plaintiff’s counsel over the phone.  Just my two cents, not scientific.

The percentage may be a bit lower for me, taking into account how you defined cases and the volume of disputes I handle and the fact that many of them can be resolved fairly quickly.  I would think that the number that make it to mediation or court-sanction ADR would be in the 20% range.  If you just look at cases filed, it would increase to 75% plus.

I would say between 50-75% of my (significant, i.e., larger dollar amount) cases are heading into mediation. 

Off the top of my head I would say at least 75 percent have third party assistance. Many lawyers have little, if any, trial experience so they lack the experience and/or the gravitas to effectively negotiate on their own. There is also a certain catharsis for the matter being heard by a neutral party. The courts are now charging for settlement conferences in front of judges with little civil experience and they often impose unrealistic time limits. Our system is broken and mediation is keeping it from grinding to a halt.

I’d say perhaps as many as 75% now are mediated or in settlement conferences. I would say about 75% of my matters in the last 5 or so years. While I do not get involved in much litigation any more the ones that I am thinking of were all pretty complex and involved significant sums.

 I’d estimate between 75-80% of my cases go to mediation.

I would say 80%. As a side note, I think it is over used.  Too often lawyers do not work toward a resolution, looking for opportunities along the way to find a resolution.  Instead they work the file and then suggest a mediation, as if mediation, as opposed to sensible resolution, is the goal. 

I would say 70 to 80% of my filed cases use mediation or settlement conferences, but only 60 to 70% are resolved through ADR if you include the non-filed cases , which are usually resolved after a demand letter and simply through old-style negotiation. So the answer to your question as worded is 60 to 70%

Because of the court rules, I would estimate 90% of all cases that are filed for over $50,000 go to mediation or a court settlement conference. (Some counties like Marion County do not require them.). Additionally, most larger dollar cases go to mediation since most courts do not have the time to conduct true settlement conferences. For cases filed under $50,000, perhaps 10% because these cases are either settled directly by the parties or they proceed to arbitration.

I think that 80 to 90% of USDC cases go to mediation and almost all 9th Circuit appeals go to mediation. Concerning State cases, I think only about a third of my cases are mediated.

Probably close to 90% of my cases go through mediation.

I estimate that about 90% of the lawsuits I get involved in are sent to mediation. 

90%.  Much of which is a huge waste of time in my opinion but is required by the court.

I see 90% at least going to some form of ADR if nothing else because of the Court rules. Contrary to Elden’s beliefs, I do believe that mediation helps with the right mediator for a case, especially to talk with or in front of the parties, whether plaintiff, defendant or adjuster. It often takes a neutral looking at the case with fresh eyes to point out issues to the parties, not necessarily their lawyers, assuming the lawyers let the mediator talk to or in front of their clients. I think Elden disagrees with that notion and that the lawyers should be able to do the negotiating and present positions but it often just does not work due to personalities and egos and other factors.

I estimate that about 90% of the lawsuits I get involved in are sent to mediation. 

95% of my cases have a settlement conference or mediation. The only times that my cases are not part of a mediation or judicial conference are when the case is resolved for policy limits or a dispositive motion.

The unscientific answer/estimate for cases that I personally handle (not the firm as a whole) that are filed or unfiled that go through some kind of mediation/settlement conference is probably 95%.

I would say 100% of my cases go through either mediation or settlement conferences.

4. Conclusions

What can we infer from these results?

It appears that lawyers vary considerably in their use of mediation and settlement conferences. Some use mediation sparingly, and others use mediation often (to me, surprisingly often).

Beyond the numbers, what can we conclude? To me, the results raise many more questions than they answer.

Who gets better results (if one can even determine and evaluate  “good” settlements or judgments over a run of cases)? Who has the most satisfied clients? Who has the least-stressed clients? Who has clients that are left with either good or bad opinions of their own lawyer, the opposing lawyer, or the civil justice system? Who resolves cases expeditiously? Who resolves cases cost-effectively? 

And an especially interesting question for me, is this: Comparing lawyers with low, medium, and high use of mediation, who is more willing to leave mediation or settlement conferences without settlements and then take those cases to trial? And of those, who are the best trial advocates?  

These may be good questions for discussion and research.