What are the Prospects for Non-Attorney Mediators?
We have examined our sample of 579 mediated cases up to determine who is selected by parties to serve as mediator. Our sample of mediating cases comes from mediation sessions reported to the Cobb County Superior Court between 2006 and 2007.
Over 100 mediators are represented in the data sample; however, the majority of cases were conducted by a relatively small group of mediators. As the graphic below illustrates, ten mediators mediated over half of the cases. The data supports the hypothesis that a small group of the usual suspects conducts the majority of mediation sessions.
Another issue that we found of interest is the prevalence of occupations represented at the mediation table. Specifically, we wanted to know how frequently attorney-mediators were selected by parties as compared to non-attorney mediators. The extent to which legal analysis should dictate mediation is a frequently debated question in academic literature.
To determine whether the mediator in a particular case was an attorney, we cross-referenced each mediator represented in our data sample with the Giorgio Bar Directory. Additionally, we looked to a booklet of mediator biographies published by the Court.
We found that attorney-mediators represented the overwhelming majority of mediators selected by the parties for court-connected mediation sessions. 93% of mediation sessions in our sample were conducted by attorney mediators; 7% by non-attorney mediators. In part, this fact reflects the Court’s rule: only attorneys may mediate civil (non-domestic) cases. However, even in domestic relations cases in our sample, which any occupation may mediate by court rule, attorney mediators conducted 92% of mediation sessions.
| All Mediations | Domestic Mediations | |
| Attorney Mediators | n = 540 93.3% | n = 439 91.8% |
| Non-Attorney Mediators | n = 39 6.7% | n = 39 8.2% |
This article will not take a position whether attorneys make better mediators than non-attorneys, but the data presents some important questions:
In the long run, are new mediators provided sufficient opportunities to gain experience?
If a relatively small group of attorney-mediators actually represent the bulk of mediation practice, why is there an elaborate process at the state and local level to regulate the training, registration and qualification of mediators? If parties are frequently able to agree to utilize certain experienced mediators, is administrative regulation really necessary? Put another way, why devote such public resources to coordinating mediation sessions for a relatively small group of experienced attorney-mediators?
This finding should caution new mediators, particularly non-attorney mediators, about their prospects for serving in court-connected mediation. It appears the prospects for non-attorney mediators in court-connected mediation are very limited. As a practical matter, non-attorneys considering mediation training to start mediating court cases should consider whether applying mediation training in fields other than litigation.
Obviously many mediation sessions take place privately, without connect to the courts, but we should expect purely private mediation sessions to be relatively rare compared to court-connected mediation.
Glaring Methodological Problems in Georgia Committee on Civil Justice’s Legal Needs Study
The Georgia Supreme Court’s Equal Justice Commission’s Committee on Civil Justice released a report early this year on the Civil Legal Needs of moderate to poor Georgians. The Committee’s extensive study purported to show, that in any given year, nearly 60% of low to moderate income citizens have at least one civil legal need, but only only a fraction are able to secure legal representation. See Summary. While the Committee’s Report did not endorse specific solutions, it states that the legal services programs, pro bono legal organizations, and volunteer lawyers who might help this under-served community have been hampered by inadequate resources (i.e. public funding).
The Civil Legal Needs Study is plagued by two glaring methodological problems. What constitutes a legal need in the study is highly suspect. Additionally, the Study’s essential conclusions were reached before the Committee gathered facts about the problem the Committee claimed to study.
Wants v. Needs
To determine the extent of “legal needs,” phone survey respondent “were asked whether anyone in the household experienced any of a series of 113 common circumstances that would result in a legal problem.” (Final Report, p. 11). The common legal problems reported were consumer problems, such as abusive collection practices, oppressive contract terms, unfair denial of a loan, dispute over an amount owed), and housing problems, primarily with utilities, vermin and home repair.
Surely one who becomes delinquent on phone bills, incurs late fees, receives calls from the phone company and eventually has the service disconnected has a legal problem and may want a lawyer’s help getting the debt erased and service restored, but by what definition would this be a case of needed legal services? The Study made no effort to distinguish between wants and needs. According to the Study, legal assistance was needed for all reported problems, no matter how subjective, specious, or self-induced the problem. In fact, three-quarters of respondents did not consider their problems to be legal problems (Final Report, p. 27).
The legal needs related vermin and home repair are particularly puzzling because problems obtaining rental repairs are a separate, additional category of legal need, as are consumer problems over defective work. Apparently, the legal needs reported are needing repairs to, or having rodents in, one’s own home. Again, the Study fails to distinguish between an individual’s wanting someone else to be help legally responsible for a problem and needing legal assistance to address a legal problem.
Leaping to Conclusions
To discern the truth, one should objectively consider relevant facts before making conclusions. Our legal system is based on judges and juries impartially weighing facts before passing judgment. The Committee’s Civil Legal Needs Study, in contrast, designed surveys to identify areas of inadequate funding and reasons why private attorneys fail to more pro bono services at the same time the Committee embarked to identify the extent and nature of the problem.
Imposing a pre-determined solution on a problem inhibits the identification and development of innovative solutions. It should be obvious that traditional means of meeting the demand for legal services in poor and moderate income communities, while laudable, fail to meet demand. If government-funded legal programs and individual charity are failing strategies, why emphasize doing more of the same?
Utterly lacking in the Civil Legal Needs Study is the suggestion that individuals should take personal responsibility for their legal problems and that strategies should be explored to help individuals take personal responsibility for the their legal problems. One remarkable finding in the Study was that over two-thirds of surveyed households reported access to the Internet, but over 94% of households admitted that they did not use the Internet to access online resources and legal forms. How to improve individuals’ use of freely available resources to solve legal problems is a sadly neglected issue in the Study.
The Study also reported that 95% of court personnel believe that “lack of understanding the court system” is a barrier to poor and moderate income Georgians solving legal problems. Rather than supplying more subsidized and volunteer lawyers to help Georgians navigate the complexities of the legal process, courts should explore ways to make the court system and legal process understandable to ordinary citizens.
It is important to note that “the court system” for average matters is not embodied in the Georgia Code or Rules of Court, but rather largely arbitrary and idiosyncratic local administrative procedures. Mandatory dispute resolution procedures are one example. While a particular court may have developed mediation program guidelines, there is no uniform practice among courts as to what cases are referred to mediation, when cases are referred to mediation, who mediates, where mediation takes places, who is responsible for scheduling, how mediation plans and outcomes are reported or who is responsible for the expenses of mediation. When a procedure exists, it will vary depending on the personality of the individual administering the procedure. Similar comments could be made with respect to scheduling matters with a judge’s chambers or how a judge handles a given calendar. The reported finding that 95% of court personnel believe poor to moderate income citizens (the majority of the state) cannot understand the court system should have alerted the Committee to consider ways to make the court “system” more understandable to average citizens.
Composition of Committee
The Committee is composed of pre-eminent judges, large firm partners and legal aid attorneys. See members. One cannot question the legal skills of the Committee, but it is possible that no member of Committee that issued this Study makes a living doing legal work for poor and moderate income citizens. Full time judges are prohibited from representing private parties, partners in large law firms primarily represent large organizations and wealthy individuals (laudable pro bono work notwithstanding), and legal aid attorneys are paid with public funds and charitable donations. Private practice attorneys who represent poor and moderate income citizens in legal matters may provide the Committee a needed dose of common sense.
Migrating Blog to New Site
We’ve set up this new blog to host our posts on alternative dispute resolution. As some readers may know, we’ve re-organized Cobb Mediation, LLC as the Center for Legal Solutions, Inc. We wanted to reflect this change on this blog. We will continue to share ideas about alternative dispute resolution. As our new name suggests, however, our focus is broader than mediation and we hope to reflect our diversity in this blog. We’ve changed to a wider two-column format for a better view of some of the graphics we have used to illustrate some points in our posts.
What is the Best Time to Mediate a Case?
We are conducting an empirical analysis of 578 cases mediated through the Cobb County Superior Court’s ADR Program in the 2006-2007 time frame to try to isolate variables that correlate the settlement and impasse.
One variable that has greatly interested us has been the whether the passage of time makes a case “ripe” or “stale” for the purposes of reaching a mediated settlement. Opinions vary as to the proper time to mediate. One commonly hears that cases are “not ready” for settlement discussions because the parties have not had the opportunity to conduct sufficient discovery to evaluate a case for settlement purposes.
To explore these ideas, we determined for each case in our sample how many months elapsed from time the case was filed to the time the case was mediated.
In Cobb County Superior Court’s ADR Program, cases are referred to mandatory mediation a certain amount of time after the answer is filed, typically one or two months. For a variety of reasons, including scheduling conflicts and delays, mediation may not actually take place for many months following referral, as the following graphic illustrates:
We determined the mediation settlement rate during each interval to see whether the passage of a certain amount of time between cases filing and mediation correlated with settlement or impasse.
Some reported mediations took place 0 – 3 months after case filing, before one would expect a mandatory mediation referral, and those cases appear to settle at a relatively high rate. There appears to an interesting correlation between months in which a relatively large volume of cases are mediated (e.g. months 6 and 9) and a relative drop in settlement rates in those months. This may suggest that “pushing” cases to mediation causes a drop in settlement rates.
We were also interested to see whether the passage of time had a different effect on domestic relations mediation than civil/damages cases. One may hypothesize that the opportunity to learn about a case over time is more significant in civil/damages cases where the parties are relative strangers than in domestic relations cases.
The passage of time does not appear to have a noticeable effect on the settlement rate of civil/damages mediations, but a larger data sample of such cases may be helpful to determine whether there is any correlation between the passage of time and probability of mediated settlement. The settlement rate appears to “spike” in mediations conducted 12 months after the case was filed. We may speculate that mediating near the year anniversary of a case may have some psychological or contractual importance for the parties, but do not have a solid hypothesis for this feature of the data sample.
Our regression analysis of the passage of time against settlement rates also did not reveal a strong correlation. According to regression analysis of the data sample, from a settlement rate of 61.6% at the time of filing, the mediated settlement rate declined approximately one-half percent for each month that elapsed to mediation. This linear regression does not fit a lot of the data, suggesting there are more variables in mediated settlements than the passage of time.
The data on passage of time suggests that there is no “right time” to mediate a case. Perhaps the right time to mediate is the time when mediation is agreeable to the parties. There is some evidence that pushing parties to mediate to comply with administrative rules may decrease settlement rates. The evidence may also suggest that the opportunity to conduct discovery and file pre-trial motions does not significantly alter, and may actually decrease, the parties willingness to settle at mediation. This would suggest that discovery and motions practice may more often be employed to justify a party’s settlement position than allow parties to evaluate the strengths and weaknesses of their case for settlement purposes.
Mediation Settlement Rate by Type of Court
As part of our research into mediation settlement, we studied data collected and compiled by the Georgia Commission on Dispute Resolution. The GCDR is a Georgia Supreme Court Agency that oversees court-connected ADR Programs in Georgia.
The graphic below shows the percentage of cases reaching any type of settlement (full or partial) in mediations administered by court-connected mediation programs sorted by type of court. In other words, the produce this graph, all superior court mediation programs were grouped together, all state court programs grouped together, etc. We hope that presenting this data in user-friendly form will help those interested in this field.
The State Court Programs settlement rate (pink line) is dramatically impacted in 2005 by the addition of cases from the 9th JAD State Court Medation Program. In 2005, the first year of reported state court data from 9th JAD, there were 317 full or partial settlement in 327 cases (a 97% settlement rate).
Taking note of the exceptional state court results from 9th JAD in 2005, the overall settlement rates by type of court appear to remain fairly stable over time. Juvenile and Magistrate Court cases appear to settle through mediation at relatively high rates. The settlement rates in Probate and Superior Court cases appear in a middle range. The relatively small number of Probate Court cases being mediated accounts for the apparent variability of the settlement rate of Probate Court cases (the yellow line). Settlement rates are relatively low in State Court Mediation Programs.
The types of courts represented here have different (sometimes overlapping) jurisdictions. This data indicates that mediation produces settlements at higher rates in some types of courts than others. This supports the hypothesis that some types of cases are more suited to settlement at mediation than others.
This graphic has been available on our web site, www.centerforlegalsolutions.org, for some time, but we wanted to isolate our discussion of the court_type variable in this post to give readers an opportunity to comment.
Comparing Settlement Rates of Georgia Superior Court Mediation Programs
As part of our empirical research into mediation, we studied data collected by the Georgia Commission on Dispute Resolution which is a Georgia Supreme Agency created to oversee court-connected ADR programs.
To produce this graphic, we plotted the settlement rates of cases mediated in Georgia’s large Superior Court mediation programs. This includes programs where more than 100 cases per year were mediated from 1997 to 2005. This graphic shows the percentage of cases reaching any type of settlement (full or partial) in mediations administered by the superior court programs represented here.
This table is limited to superior court ADR programs that administer more than 100 cases per year. Some data was not available (DeKalb 1997, Gwinnett 1998, Coweta 2004 excluded due to likely recording error).
Sadly, no data for 2006 and 2007 is available from GODR. The office reports its work has been limited by staff and budget cuts.
The settlement rates of Superior Court Mediation Programs are fairly consistent over time. The Southern JAD reports a relatively high rate of settlement through mediation whereas the Cobb Superior Court ADR Program reports a relatively low rate of settlement over the time period reflected here.
A number of variables may affect the settlement rates achieved in the various programs represented here. We might expect that these programs would mediate the same types of cases because we have isolated Superior Court programs. Other variables that may account for the various settlement rates achieved include
* Timing of Referral to the ADR Process;
* Regulation of Who May Mediate Court-Connected Cases;
* Demographics of the Population Served;
* Party Involvement in Selecting Mediator, Mediation Location; and
* Who Pays the Mediator
Our hypothesis is that the more a court program exercises coercive control of the mediation process, the less likely cases mediated through that program will result in settlement.
Although no less than the Georgia Supreme Court has created a Commission to continuously evaluate the performance of court-connected ADR programs, I have received scalding criticism from court administrators for evaluating how well their mediation programs have actually performed in terms of settling cases and representing that court programs should be evaluated for the benefit of litigants and taxpayers who fund these programs.
This graphic has been published on our web site, www.centerforlegalsolutions.org, for some time, but I wanted to post it separately to provide some additional commentary on it and provide readers an opportunity to share their comments on it.
Correlation of Mediator Gender to Settlement Rate
Our data sample includes 578 mediation sessions conducted as part of Cobb County Superior Court’s mandatory ADR program in the 2006 – 2007 time period. Previous posts have described the data sample and court program in greater detail.
We identified the gender of the 122 individuals who mediated these cases in order to compare the overall settlement rate of male mediators compared to the overall settlement rate of male mediators. Our findings can be summarized.
Female Mediators 300 Cases 62.0% Settlement Rate
Male Mediators 278 Cases 42.4% Settlement Rate
Female mediators settled cases in our sample settled cases at approximately 20% higher rate than male mediators. The overall settlement rate was 53%.
To further illustrate the data, we organized our chart of “popular mediators” according to the settlement rates of the 35 most frequently used mediators in our data sample. We then colored each bar to represent the gender of the mediator who achieved the settlement rate represented.
Examining the graphical representation of mediator gender and settlement rates, one can see that there are male mediators who settle cases at higher than average rates, as well as female mediators who settle cases are lower than average rates. Nevertheless, it appears that most of the popular mediators who settle cases at higher than average rates are women, while the majority of popular mediators who settle cases at lower than average rates are men.
Some may object to this “battle of the sexes” analysis on the grounds that men and women should be treated as equals. Based on our data, however, male and female mediators are not statistically equal with respect to the rate at which they settle cases. Whether this “good” or “bad” is more a matter of philosophy than statistics.
In her book In a Different Voice, Carol Gilligan described how men and women think about moral conflicts differently. Her research suggests that men tend to consider conflict in terms of rights while women generally view conflicts in terms of dynamic relationships. Accordingly, a “female” approach to conflict resolution may be better suited to the process of facilitating mediated settlements than a “male” approach to conflict.
Because many cases in our data sample involve family law conflicts between parties with long-term relationships, as opposed to conflicts between relative strangers, settling these cases may require mediators to appreciate the relationships of the parties involved.
As we continue to study mediated cases and increase our data sample, it will be interesting to compare the settlement rates of male and female mediators in domestic relations cases against other types of cases, particularly lawsuits for damages.
Judicial Influence on Mediation Settlement Rates
This post shares another finding of our study of 578 cases that were mediated as part of the Cobb County Superior Court’s ADR program in the 2006 – 2007 time frame.
There are 10 active Cobb County Superior Court judges. Our data sample of mediated cases was sorted by the judge assigned to the case to determine the rate at which their cases settled in mediation. The results can be illustrated graphically.
Based on our data, the judge presiding over the case does have an influence on the settlement rate. Cases in our data sample settled at an average rate of 53% in our data sample.
In the Cobb Superior Court ADR Program, cases are automatically referred to a mandatory ADR process based on the elapse of a certain amount of time (usually 1 – 2 months) after the complaint is answered. Because the process is largely administrative, it is unlikely a particular judges “positive” or “negative” sentiments about mediation explain the varying settlement rates when their cases are mediated in this program. It is more likely that these judges indirectly influence the rate at which their cases settle in mediation through their case management. For example, it might be expected that how pre-trial motions are handled before mediation and the expectation of an imminent trial play a role in whether mediation parties will be able and willing to reach settlement at mediation.
It should also be noted that Judge Kell (Judge #10) was appointed to the Cobb Superior Court after the mediation sessions that compose our data sample occurred. Only active cases where mediation resulted in impasse, partial settlement or continuation of settlement were re-assigned to Judge Kell when he took the bench in late 2007.
The “Natural” Settlement Rate and Court-Connected ADR
Because most lawsuits are settled out of court, many have wondered whether court-ordered ADR actually reduces the numbers of trials or simply resolves through mediation cases that would have settled anyway. In other words, the question is whether court-connected mediation programs improve over the “natural” settlement rate of litigated cases.
Our empirical analysis of mediated cases doesn’t offer us a crystal ball to discern whether a mediated settlement would have occurred naturally, without the involvement of a mediator, but has disclosed an interesting feature of out-of-court settlement rates in court-connected ADR programs in Georgia.
Generally, when a case is referred to a mandatory ADR process, the parties have some time make arrangement or prepare for a mediation session arranged by the court. This provides the parties some opportunity to resolve the matter on their own, prior to mediation. Between 1997 and 2005, the Georgia Office of Dispute Resolution recorded the number of cases that where referred to mandatory, court-connected ADR but were resolved prior to mediation. We calculated the percentage of referred cases that were resolved prior to mediation in different types of court over the time period of available data. A graphical depiction of the data reveals several upward trends:
It appears that in state, superior and juvenile courts an increasing percentage of cases referred to mediation settle on their own before mediation actually takes place. Apparently, the natural settlement rate is not a natural rate, but rather responsive to some variables. One might hypothesize that an increasing percentage of parties are settling their cases out of court to avoid the time and expense of court-ordered mediation.
While courts should encourage voluntary settlements, one has to be concerned that the burden of court-ordered mediation may be a deterrent to pursuing justice under the law. If courts were simply to impose a $1,000 fine on all parties who refused to settle their case within a certain amount of time, such a rule would raise serious due process concerns but may be a more efficient and direct method of promoting settlements than ordering parties to mediation sessions that they are increasingly reluctant to endure.
Some Types of Cases May Be Better Suited to Mediation than Others
This post follows up a previous post that shares some findings from our ongoing study of actual mediation sessions that were conducted in a Superior Court in Georgia during an approximately nine-month period in 2006-2007.
Georgia’s Superior Courts are courts of general jurisdiction. They hear all types of civil cases and wide variety of cases are referred to mediation programs connected with the Superior Courts.
To determine whether certain types of cases more likely to settle through mediation than others, our data sample was sorted by case types. The case types are assigned by the Clerk’s office. We then compared the settlement rate of each type of case that completed a mediation session.
Based on our sample of 578 mediated cases, which we believe to be representative, some types of cases are more likely to settle during mediation than others. Cases concerning specific domestic relations issues such as separate maintenance, paternity, visitation and child support appear to settle at relatively high rates through court-connected mediation while cases for damages and civil complaints settle at relatively low rates through mediation.
Enlarging our data set may help us calculate the suitability of more exotic forms of action, not listed here, for settlement in mediation.
These findings should be useful to attorneys who would like to advise their clients on the value of mediation for their particular dispute. Mediation outcomes can not be predicted with certainty, but studying the data may support an educated guess. These finding would also be useful to court administrators who wanted to target resources where they may do the most good.
It is perhaps significant that the cases in this sample are generally referred to mediation at a particular time (one or two months) after the answer (or answers) are filed. It may be that certain cases are better suited to mediation early in the life of a case than others. Parties in cases for damages and civil complaints may have a greater need for fact finding than parties in domestic relations matters which makes early mediation more appropriate for the latter than the former. Multiple-variable analysis and exploration of the time factors involved should be helpful.
