The very essence of mediation  is voluntariness. It may, thus, appear inconsistent and inappropriate to ever consider judicially forcing litigants to participate in a process such as mediation that is radically voluntary. Yet in many jurisdictions , such as Michigan, the Supreme Court has, by promulgation of court rules , authorized a trial court judge to order the parties, in a case assigned to them, to participate in facilitative mediation  , even over the objection of a party. While Michigan rules do provide the parties with the right to object, such motions, in general, are not likely to be successful.
Such rules authorizing court-ordered mediation reflect a judicial awareness of two phenomena. First, judicial statistics regularly demonstrate that approximately only 2% of all civil actions go to verdict . Most of the other 98% are settled, typically near to the date set for trial after many months or years of litigation and after the expenditure of substantial time and money. Second, experience has demonstrated that many, usually most, cases ordered into mediation by a court, even prior to the conclusion of formal discovery, result in a voluntary settlement.
The Michigan Supreme Court analysis appears to be that, given these two observations, the potential benefits of compelled mediation  to the parties and to the court far outweigh the risk that the mediation will be unsuccessful. After all, what is being forced upon the parties and their counsel is merely the requirement that, prior to conducting a full-blown trial, the parties have sat down face-to-face and discussed their competing positions and attempted to come up with a mutually acceptable resolution. Experience demonstrates that in many cases where counsel firmly assures the court that mediation “won’t work” the case is in fact settled with a mediated agreement. In short, courts such as the Michigan Supreme Court have concluded that, as a general rule, when the court orders the parties in a case to mediate it, the chances of settlement are high and the risk of the parties not benefiting from such mediation are very low.
Still, it is clear that not all cases will settle in mediation and not all cases ought to be mediated  . Therefore, trial judges in jurisdictions that authorize mandatory mediation would benefit from guidelines as to which types of cases on their dockets would appear most likely settle if ordered into mediation. I respectfully suggest, based upon my research and experience, that the following ten factors are reliable indicia that such cases are more likely than average to be resolved by mediation. It is, I believe, very helpful to the success of court-ordered mediation that counsel generally be allowed input on the question of whether or not to order mediation and also on the scheduling of any mediation consistent with the circumstances of each case.
CASE FACTORS FAVORING MEDIATION
I. One or more of the attorneys requests mediation.
Even if one party is opposed to mediation, unless they can articulate some specific reason that would clearly make mediation pointless (e.g., a key expert witness has not yet conducted a necessary examination), mediation is likely to be productive. Where the parties need time to conduct additional discovery, or otherwise, the court can order mediation be held prior to a date well in the future.
II. One or more of the attorneys bring up ADR or admit that mediation might work.
Here too, a risk/benefit analysis dictates that unless a party can clearly establish that their case is one of the unusual cases that will probably not benefit from mediation, a court should probably have the parties attempt to mediate their dispute. The minimal time and expense required for mediation is statistically very likely to be off-set by the savings of time and money resulting from a mediated agreement.
III. One or more of the attorneys indicate that settlement discussion were held but were unsuccessful.
This is the classic case to be mediated: the parties want to settle but have been unable to do so on their own. A skilled mediator should be able to assist the parties to objectively evaluate their respective cases and work out a resolution which meets the real needs of the parties and is acceptable to them.
IV. It appears that the cost of litigation will be a significant fraction of the actual amount at issue.
This is merely to say that if the parties can not really afford to fully litigate the case they should settle it. Or, put differently, since the parties are almost certain to settle anyway, they can only maximize their benefit by settling early and minimizing their litigation expenses.
V. Plaintiff’s recovery, if any, is likely to be modest.
In other words, the victory has to justify the costs of the war. It is easy for disputing parties to get caught up in the emotional vortex of litigation and lose sight of the concept of proportionality of remedy.
VI. The trial of the case is likely to be lengthy and/or complex.
Not only should small cases go to mediation, but also big ones. The benefit to the parties, assuming that they are represented by competent and prepared counsel, is that they are able to marshal all their evidence and arguments at a convenient time and place without the trauma and stress of trying to co-ordinate jury preparation, witness preparation and attendance, etc., knowing that the case may very well not be reached on the assigned trial date. Mediation, where necessary, can be scheduled over a period of days to allow all aspects of the case to be thoroughly examined and challenged in a controlled forum. If mediation fails in such a complex case, both the court and counsel can be confident that a firm trial date is required and that it is very unlikely that there will be a “last minute” settlement. Furthermore, the respective sides are likely to have “trimmed down” their case.
VII. All parties are represented by experienced and reasonable counsel.
Most mediators will acknowledge that the better the attorneys, the better the chances of a mediated settlement. This may seem somewhat counter-intuitive but good lawyers know that a mediated agreement generally maximizes the benefit to their client and, especially for plaintiff’s counsel on a contingent fee, themselves. Good lawyers know the strengths of the other side and the weakness of their side. This is of course the sine qua non to achieving a mediated agreement.
VIII. The parties are likely to have to continue to deal with each other after the case ends.
Unlike tort actions where, normally, the parties have no further contact with each other after the conclusion of the lawsuit, actions between employers and employees, between husbands and wives, between business associates and between neighbors, require a dispute resolution that does as little damage as possible to the continuing relationship between the parties. Facilitative mediation is ideally suited for this challenging task.
IX. The parties are all sophisticated and able to evaluate their needs and interests, independently from their counsel.
For whatever reason, there are some cases in which clients, typically business persons, are more willing and able to discuss a compromise settlement than are their attorneys. Unlike the litigation forum, mediation furnishes a setting which allows the parties an opportunity to negotiate directly with one another. By definition, if the clients are happy the attorney is happy.
X. The case has proceeded through discovery and case evaluation  yet has not settled.
While most of the cost and effort of preparing for a trial will already have been expended, several factors still favor trying mediation. First, a trial date is immanent and last minute trial preparation will have disclosed previously unappreciated “loose ends” and legal hurdles. Second, the excuse that “I need to do more discovery” is gone. Third, the parties will be most sensitive to the need to protect themselves from a bad result. Fourth, counsel for all parties will be free from the nagging fear that there might be still more helpful evidence out there that could undercut a negotiated settlement. Fifth, the case evaluation award will give the mediator a starting point in discussing reasonable settlement value.
In summary, each case is unique and not every case benefits from mediation. However, the preceding ten case characteristics should be helpful in allowing judges to cull-out those cases on their docket most likely to be successfully mediated, either by suggestion or by order.
1 Mich.Ct.R. 2.411(A)(2) “Mediation” is a process in which a neutral third party facilitates communication between parties, assists in identifying issues, and helps explore solutions to promote a mutually acceptable settlement. A mediator has no authoritative decision-making power.
2 The following jurisdictions, at least, appear to allow court-ordered mediation, at least to some degree: AL, CO, FL, GA, HI, IL, KA, MA, ME, MI, MO, MT, ND, NH, NC NJ, NV, OH, OR, PA, SC, TX, WA, WI and some federal district courts.
3 MCR 2.410, 2.411, 3.216 & 5.143.
4 i.e., facilitated negotiation.
5 MCR 2.410(E) Within 14 days after entry of an order referring a case to an ADR process, a party may move to set aside or modify the order. A timely motion must be decided before the case is submitted to the ADR process.
6 Marc Galanter, The Vanishing Trial (2004) at http://www.abanet.org/litigation/vanishingtrial/vanishingtrial.pdf
8 The apparently oxymoronic phrase “compelled mediation” means here compelling the parties to attempt to negotiate a mutually voluntary agreement with the understanding that there is no penalty for failing to successfully mediate.
9 Questionable cases for mediation might include cases involving constitutional issues, statutory construction, a strong public interest, or issues on which a precedential decision is desirable.
10 Alternate Dispute Resolution.
11 MCR 2.403.
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