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.
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