Relative Effectiveness of Mediators and Attorney-Mediators in a Court Annexed Mediation Program

Are attorney-mediators more effective than non-attorney mediators in resolving cases that are already in the court system?  In order to provide insight into that question, and propose some answers, a 2009 study looked at all civil cases assigned to mandatory mediation by the Ventura County, California, Superior Court between January 1, 2005 and December 31, 2008.

The Study

The study was designed to compare settlement rates as between attorney-mediators and non-attorney mediators according to three metrics:  absolute settlement rates, case type settlement rates, and case value settlement rates.  The study compared those metrics among the 73 mediators who were identified as having cases assigned to them for mandatory mediation during the study period.  Of that number, forty-two (58%) were identified as attorney-mediators and thirty-one (42%) were non-attorney mediators.  Mediators are asked to identify at least one day each month on which they will make themselves available to conduct mediations.  When a case is identified by a judge as being subject to the Court’s rules for mandatory mediation it is sent to the mediation clerk for assignment.  Assignments are done randomly by the clerk to whichever mediator has indicated availability on the date for which the mediation is set, typically 6 weeks after the order of assignment is made.

California civil cases can be filed as Limited Jurisdiction cases in which claimed damages cannot exceed $25,000 and Unlimited Jurisdiction cases in which there is no ceiling on the claimed damages.  Unlimited jurisdiction cases have a filing fee that is higher than the filing fee charged in limited jurisdiction cases. Discovery rules are more generous in unlimited jurisdiction cases than in limited jurisdiction cases, thereby potentially affecting the costs associated with discovery in the various cases.  As a result of those two considerations, there is some incentive for plaintiffs’ attorneys to honestly evaluate their cases and to file smaller value cases as limited jurisdiction cases. 

 The Ventura Superior Court identifies each case filing by its predominant legal theory, even if many different legal theories, or causes of action, are included in the complaint.  The categories of case filings include automobile tort, torts involving personal injury, torts involving property damage, miscellaneous other torts, employment, contract, real property, unlawful detainer, judicial review, complex litigation, collection, enforcement of judgment, lemon law (automobile defect), small claims appeals, and miscellaneous others.  Not all types of cases are subject to assignment to mediation.  Complex litigation matters, judicial review matters, enforcement of judgment matters, and small claims appeals are not subjects to the court’s mandatory mediation program.  Although the Court has a Family Law Mediation program, none of those cases were included in the study because all of the mediators were attorneys and because the program is not a true mediation program but rather an advisory process for the Court.

A total of 529 civil case files were identified by the Clerk’s Office as having been subject to mandatory mediation during the study period.   Preliminary examination resulted in the elimination of 22 of the files as duplicates of other entries.  Analysis began using the remaining 507 unduplicated cases that had been identified by the Clerk.

 Of the 507 unduplicated cases, 194 cases were eliminated from analysis either because no mediation session had occurred or no result had been reported.  The eliminated cases included:

• Cases that were settled before the mediation session was to have occurred;
• Others in which the parties elected to have a private mediator handle the matter instead of the court-appointed mediator;
• Those for which a mediator had disqualified him or herself and no new mediator was appointed;
• Those cases in which one or more parties failed to appear for the mediation and no new mediation was scheduled;
• Cases in which one or more of the parties filed for Federal bankruptcy protection and the case was stayed or disposed of in the bankruptcy proceedings;
• One case that was returned to the court by the mediator because it exceeded the jurisdictional limit for mandatory mediation pursuant to the state’s Code of Civil Procedure;
• One case for which the mediator failed to appear for the mediation and no new mediation was scheduled.

With the elimination of the excluded cases from the original population of 507, analysis was conducted on the remaining 313 cases involving actual mediation sessions.

Study Findings
General Analysis

The study identified 183 of those 313 cases as settled.  For purposes of this study, settled cases include those that were resolved in whole or in part during the mediation session as well as cases settled within 60 days of the mediation session.  The remaining 130 cases either did not settle at all or settled more than 60 days after the mediation session was held.  Of the 183 cases that did settle as a result of mediation, an attorney-mediator was involved in 91 of the cases and a non-attorney mediator was involved in 92 of the cases.  Among the cases that did not settle, an attorney-mediator was involved with 62 and a non-attorney mediator was involved with 68.

A cursory review of the above figures indicates no significant difference in the settlement rates between the attorney and non-attorney mediator groups.

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James Lingl

James P. (Jim) Lingl (BA Rockhurst University, JD University of Wisconsin, MA California State University Dominguez Hills) has extensive legal experience both as a litigator and as transactional attorney. Between 1983 and 2008 he led a law firm that dealt primarily in Community Association law, a practice encompassing all aspects of homeowner association… MORE >