Disputing Irony: A Systematic Look at Litigation About Mediation

Abstract

Although mediation has been institutionalized successfully in courts and other contexts, questions abound regarding its impact and effectiveness. A universal complaint is the lack of relevant empirical data. Numerous scholars have called for new research to help determine what is occurring in the mediation process. Our study is designed to address several questions. First, to what extent does the mediation process create, as opposed to resolve, subsequent litigation? Where is the litigation taking place and what issues are being litigated? What can we learn from the litigated process and about the proper roles and conduct for counsel and for the mediator? Finally, how are the courts dealing with the conflict between the need for confidentiality in the mediation process and the need for evidence when mediation conduct becomes an issue in subsequent litigation? The article analyzes 1,223 state and federal court mediation decisions from 1999 to 2003. The article further examines specific mediation issues summarizing key trends and providing illustrative examples. Finally, the article makes recommendations for statute and rule reform, ranging from the use of “cooling off” periods during which parties are free to exercise a right of rescission of a mediated settlement, to the adoption of special confidentiality rules regarding third party access to mediation evidence.

Keywords: mediation, legal disputes about mediation, litigation, confidentiality, cooling-off period, rescission, mediated settlement, empirical mediation study