Trends in Mediation

As alternative dispute resolution (ADR) and mediation becomes more widespread and a key resource for lawyers looking to resolve disputes short of a full-scale trial or hearing, it’s worth noting trends in the effective use of mediation.

As a mediator, I’ve noticed more parties requesting mediation before filing a lawsuit in the interest of early resolution and cost efficiency.

Another trend has been courts asking mediators to assist pro se litigants in settlement conferences and mediations. This can be particularly beneficial when a pro se litigant is unfamiliar with the court process or the controlling law on the subject matter of the litigation.

In reviewing trends in mediation, there has been much written, seminars presented, CLE programs and court initiatives created. Some key trends I have observed are as follows:

1. Mediation has a 70-80% success rate depending on the forum. As a mediator and from other sources this is a valid statistic. In my experience, in cases where both parties are truly interested in resolution, the result can be 90%.
2. Mediation settles disputes quicker than the time for litigation. Trends show that more counsel are using mediation pre-suit to resolve disputes.
3. Mediation is also more cost-effective because it reduces legal fees for both parties. From my experience as an advocate and mediator, mediation costs are significantly less than litigation. 
4. State and federal courts, as well as administrative agencies at the state and federal level, have initiated mediation programs.  Some make mediation mandatory.  This demonstrates the wide acceptance of mediation as an effective tool to resolve disputes.
5. During mediation, a significant component of a dispute can be resolved and often is, leading to a complete resolution. I have seen this in property settlements, commercial disputes, family law cases and class actions.
6. Many employers, businesses and higher education organizations have implemented mediation programs and requirements. This represents the importance of pre-suit mediation, the development of internal mediation and ombudsman programs. I have helped design and implement these programs for employers and institutions of higher education.
7. Various Chambers of Commerce, and even the Singapore International Chamber of Commerce, have had programs about the value of mediation in resolving business disputes.
8. Mediation efficiency is an important criterion for mediators to take into consideration. Often, I am asked for quick dates, prior to pleading deadlines, statute of limitations issues and where parties have been directed by courts to mediate a dispute.
9. For small businesses in the U.S., it can often be their first legal dispute and they do not have the people or financial resources to engage in prolonged litigation. Early mediation is a viable tool for quick resolution and a cost-effective approach to resolve disputes.
10. From my experience, communication is key to resolving disputes. I have pointed out in prior articles the importance of objective and legitimate communication with demands and counteroffers. Setting a tone for effective communication is essential.

These trends in mediation are encouraging and, in my opinion, validate the use of mediation as a tool in resolving any type of dispute. In fact, with effective preparation and presentation and the use of objective and legitimate criteria, there is no dispute that isn’t capable of resolution in mediation.