By Steven G. Mehta

There is often a discussion of the differences in mandatory or voluntary mediation.  Some people believe that mandatory mediation is not as effective as voluntary.  Whereas, others believe that the process is as effective, but that the parties come to the two different mediations with different perspectives.  I recently read a book that shed some new light on this topic.

The book, which I have previously discussed in other posts, is called Perceptions in Litigation and Mediation by Tamara Relis.  In her book, Ms. Relis discusses the difference between the lawyers’ perceptions of these types of mediation and the parties’ perceptions.  The following are some of her conclusions based upon her study of mediations, and her review of literature on mandatory and voluntary mediations.

She initially explains that when discussing the events that happen at mediation, that the attorneys do not typically differentiate the mediations by mandatory or voluntary.  However, despite that lack of distinction in the facts relating to mediation, virtually all attorneys spoke positively about voluntary mediation but criticized mandatory mediations (especially in medical cases) as being too early.  This conclusion was supported by several surveys in different states regarding the two types of mediation.

Interestingly, however, in one study in Ohio, there was no relationship found between the timing of mediation and the chances of settlement. The lawyers’ views on the effectiveness of mediation appeared to “be affected more by their own expectations as to timing than by the actual timing of mediation.”  In fact, according to that study, cases were more likely to settle earlier rather than later.

Relis comments that many mediations are affected by the attitudes the lawyers bring to the mediation.  In many cases, according to mediators, the attorneys were often inadequately prepared for the mandatory mediations.

In one study the researchers found that “lawyers’ lack of preparedness may mask the fact that lawyers still view [mandatory] mediation as simply an obstacle to get through…”

This view of the two types of mediations is contrasted with the parties’ views.  According to Ms. Relis’ research, “all plaintiffs viewed their mediations, regardless of whether they were mandatory or voluntary, simply as a stage in the litigation…”  In addition, the defendants – including in the medical cases — appeared to be keen to have mediation early on.

In addition, plaintiffs entered both voluntary and mandatory mediations with the same views on liability of the case and with the same level of desire to settle the case.   Interestingly, there were few physicians who underwent and attended mandatory mediations.  But out of those the physicians, they were “far less certain that their mandatory mediations would not end in settlement” compared to their lawyers.  Another factor affecting mediation – the cost of mediation – was not a consideration for the plaintiffs.

Based upon this research, Ms. Relis concluded that legal actors considered tactics of mandatory and voluntary mediations as it related to timing of mediation.  However, neither plaintiffs nor defendants mentioned the timing of mediation as an important factor.  For the parties, the consensus was that the earlier the mediation, the better.

Second, there is a dissonance between the lawyers’ expectations and the clients’ expectations in mandatory mediations.  This could substantially affect the outcome and effectiveness.

Finally, she explained that this disparity can also be considered part of the desire to control the legal ramifications and scenarios.  The attorneys felt more comfortable controlling the outcome when they had more information about the legal issues and were less willing to discuss the issues as desired by the parties, and were even less willing to discuss extra-legal issues.

According to her research and others, she concluded that although mediation is viewed favorably by attorneys, they restrict endorsement of early mediation to cases that only have damages at issue and are not disputing liability.

Personally, having mediated both mandatory and voluntary cases, I have some additional observations.

First, in some cases, mandatory mediation is also affected by the attorneys’ perception of the competence of the mediator.  Many attorneys will comment to me anecdotally that they do not want to waste time on mandatory mediations because they are concerned that the mediator will not have the necessary skills to help the parties resolve the case.

Second, many early mandatory mediations are viewed by the defense as effective if it is an opportunity to resolve the case for nominal sums.  This is supported by Ms. Relis’ research.  However, if it is not “nuisance value” then the attorneys need time to be able to meaningfully give advice to the clients.  This can be a reasonable issue.  The clients are relying on independent advice of the attorneys regarding the legal ramifications of the underlying factual issues.  That cannot simply happen by the snap of magic fingers.  It takes time and effort to get “up to speed” before an attorney can meaningfully give advice.  Moreover, the attorney may not know all the facts, and usually only knows one side of the story.  As such, the timing can be very important in allowing the independent verification of the liability picture.

Third, no matter which type of mediation is taking place, it is vital for its success to have everybody adequately prepared.  As such, if the parties and their attorneys anticipate that either side will be insufficiently prepared, they need to delay until that can be done.

Finally, it is also incumbent on the courts to try and create some methodology to allow the parties to be sufficiently prepared with the least amount of effort expended.  That does not currently exist.  And such a process would then help the mandatory mediation process.

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