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

37 Pages Posted: 8 Dec 2008  

Dwight Golann

Suffolk University Law School

Date Written: December 3, 2008

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.

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

JEL Classification: K41

Suggested Citation

Golann, Dwight, Is Legal Mediation a Process of Repair - Or Separation? An Empirical Study, and Its Implications (December 3, 2008). Harvard Negotiation Law Review, Vol. 7, p. 301, 2002; Suffolk University Law School Research Paper. Available at SSRN: https://ssrn.com/abstract=1310926

Dwight Golann (Contact Author)

Suffolk University Law School ( email )

120 Tremont Street
Boston, MA 02108-4977
United States
617-573-8183 (Phone)
617-305-3086 (Fax)

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