We have begun to study alternative dispute resolution by looking at mediation sessions the way a scientist would look at experimental trials. We are hoping to identify factors that correlate to settlement as well as factors that correlate to impasse.
These findings are based on the reported outcomes of 578 mediation sessions conducted through the Cobb County Superior Court ADR Program. We have utilized the Superior Court Clerk’s web site to mine data from Mediation Reports covering approximately 9 months in 2006 and 2007. These Mediation Reports should be a representative sample, though we are organizing more data to make additional findings.
One question we seek to answer is whether individuals who are frequently selected to mediate cases settle cases at a higher rate than individuals who are selected less frequently to mediate cases. In Cobb County Superior Court, parties are ordered to mediate, but they have an opportunity, usually 13 days, to select their mediator. If the parties cannot agree upon a mediator, the Court Program assigns a mediator to their case.
In our sample, we found that some individuals mediate far more frequently than others. Overall, 121 different individuals served as mediators. 11 individuals mediated more than 8 cases in our sample; 36 mediated between 3 and 7 cases; 74 mediated 1 or 2 cases. We calculated the settlement rates for the 35 most popular mediators in our sample (those who mediated 4 or more cases). Cases that resulted in partial settlement or continuation were considered 50% successful, reflecting a middle point between full settlement and impasse.
The results can be illustrated graphically:
The overall settlement rate in our sample was 53%. As one can see from the graphic above, some frequently used mediators settled cases at below average rates while some less frequently used mediators actually settled cases at relatively high rates.
The data allowed us to compare three groups of mediators.
| Category: | Number of Cases: | Settlement Rate: |
| 8+ Cases | 329 | 57.0% |
| 3 – 7 Cases | 145 | 53.4% |
| 1 or 2 Cases | 104 | 40.4% |
| All Mediators | 578 | 53.1% |
Based on the data, frequently used mediators do settle cases at a higher rate than average. In our sample, however, we found significant variability among individual mediators and note that difference in settlement rates between mediators who handled 8+ cases and those who mediated between 3 and 7 cases is not as dramatic as one might expect.
Finally, our sample includes cases were the parties selected their mediator as well as cases were a mediator was assigned. It is likely that those who mediated less frequently had a higher proportion of assigned cases than those who mediated more frequently which may account for some of the difference in settlement rates observed in our data.
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I find that attorneys select mediators they know and are comfortable with more often than mediators they don’t know, (regardless of the settlement rate they are told those mediators have). It takes a few mediations with a given attorney for them to completely rely on a relationship with a new mediator.
On the other hand, the more you mediate for a given client (attorney) the more familiar a mediator becomes with the type of cases and clients a particular attorney has. Frequency has a positive result in the outcome of the settlement.
As operator of a mediation service for cases in litigation in Mecklenburg County, NC I find your studies of great interest. My theory is that our most popular mediators are successful partially because they are highly skilled and partially because they are chosen to mediate in expection that they will be able to help counsel settle cases they want to settle. In effect, their reputations create a self-fulfilling proficy in favor of settlement. It is worth mentioning that the value put on these mediators is financially greater than those of lessser reputation.
I look forward to following your research to see if these thoughts are accurate.
Thank you for bringing this analytical process to the sometimes instinctive world of mediation.
Jim Shannonhouse
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