Inside the Caucus: An Empirical Analysis of Mediation from Within
Forthcoming, Journal of Empirical Legal Studies
33 Pages Posted: 24 Jul 2014 Last revised: 7 Jul 2015
Date Written: July 6, 2015
This article provides a glimpse into the worlds of mediation and settlement negotiation. Because they are almost always private, there has been relatively little empirical analysis of the dynamics of settlement or mediation. This article analyzes a unique data set derived from a mediator’s contemporaneous notes of mediations involving employment disputes, such as claims of discrimination or wrongful termination. Although the data set includes over four hundred cases, since they were all mediated by a single mediator, this article can be viewed as a case study. Among the most interesting facts uncovered by this analysis are the following. Mediation can be extremely effective in facilitating settlement. The mediator studied here achieved a settlement rate of over 94%. There are very few gender differences, whether one looks at the gender of the plaintiff or the gender of the lawyers. For example, settlement rates are the same for male and female plaintiffs and lawyers. On average, cases settle much closer to the defendant’s first offer than the plaintiff’s, irrespective of case type, size of law firm, or other factors. A mediator’s proposal appears to be the most effective mediation technique. A mediator’s proposal was used in almost ninety percent of cases, and, when it was used, the settlement rate was over ninety-nine percent.
Keywords: mediation, settlement, ADR, dispute resolution, employment, discrimination, gender, bargaining, negotiation, law firms
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