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, http://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, http://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.

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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.

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