Is Legal Mediation a Process of Repair - Or Separation? An Empirical Study, and Its Implications

Abstract:     
One of mediation's most important characteristics is said to be its ability to repair ruptured relationships between disputing parties. These themes appear in much of the writing about the mediation of legal disputes. This article describes the results of an empirical study of such outcomes. The study examines (1) how frequently disputants in substantial legal disputes who have a significant pre-existing relationship are able to repair their relationship in mediation, (2) how frequently mediation results in a settlement with other integrative terms, and (3) what factors influence the likelihood of a repair. Relationship repairs were reported in 17 per cent, integrative settlements without a repair in 30 per cent, purely-monetary settlements in 27 per cent, and impasses in 27 per cent of the sampled cases. The rate of repair was disproportionately high among mediations that occurred in the state of Maine. The article also analyzes several factors that appear to influence the likelihood that a relationship will be repaired during mediation: How valuable a renewed relationship is as compared to alternatives, how early in a dispute mediation occurs, the attitudes of the parties and lawyers, and whether the mediator is able to lay a foundation for repair before the parties first meet.

Number of Pages in PDF File: 37

Keywords: Conciliation, negotiation, dispute resolution, integrative outcome, value-added agreement, civil law suit, court-annexed mediation, court-mandated mediation

JEL Classification: K41

Accepted Paper Series