TABLE OF CONTENTS
INTRODUCTION 999 A. Summary of Findings 1001 II. SURVEY DATA COLLECTION METHOD 1002 A. Court Mediation Costs 1004 B. Rationale for Introducing Court Mediation Programs 1006 III. SURVEY FINDINGS: CONFIDENCE, FAIRNESS, AND EFFICIENCY 1007 A. Confidence in Court Mediation Programs 1007 B. Fairness 1008 C. Efficiency 1010 IV. SURVEY FINDINGS REGARDING STRENGTHS AND CHALLENGES 1012 OF COURT MEDIATION PROGRAMS A. Key Achievements in Mandatory and Voluntary Mediation 1013 Programs 1. Achievements--Mandatory Programs 1013 2. Achievements--Voluntary Programs 1014 B. Key Challenges of Mandatory and Voluntary Programs 1015 1. Challenges--Mandatory Programs 1016 2. Challenges--Voluntary Programs 1018 V. SURVEY FINDINGS: PRACTITIONER SUGGESTIONS FOR IMPROVING 1019 COURT MEDIATION PROGRAMS A. Enhanced Mediator Training 1019 B. Public Education 1021 C. Financial and Organizational Resources 1021 D. Rewards and Incentives 1022 E. Flexible Settlement Arrangements 1023 F. Access 1023 G. Ongoing Evaluation 1023 VI. CONCLUSIONS 1024 I. INTRODUCTION
Drawing on a three-year empirical study, this Article explores the attitudes and perceptions of practitioners implementing court mediation programs in five regions of the world. The aim of the survey is to provide insights into the dynamics, challenges, and lessons learned from the perspectives of those directly engaged in the work of administering, representing, and mediating civil claims. It aims to respond to calls for data regarding the relative effectiveness within and between alternative dispute resolution (ADR) program types, including mandatory and voluntary programs, and for empirical studies of the effectiveness of ADR, especially outside of the United States. (1)
The principal finding of this Article, based on survey data and follow-up questions, is that from the perspective of the practitioner, both mandatory and voluntary mediation programs are perceived with relatively equal levels of confidence, perceptions of fairness, and of efficiency. While slight variation exists such that practitioners report higher levels of confidence in mandatory mediation programs (70 percent) as opposed to voluntary programs (64 percent), and higher perceptions of efficiency with respect to voluntary programs (77 percent) as opposed to mandatory programs (68 percent), both regard voluntary (81 percent) and mandatory (82 percent) mediation programs with relatively equal perceptions of fairness. (2)
The findings of this Article echo recent insights from scholars of civil mediation reform. In particular, the provision of high-quality mediation coupled with contextual understanding will have a positive impact on meaningful outcomes in increasingly complex forms of mediation. (4) Moreover, the relative advantages and disadvantages of mediation in a given jurisdiction vary according to the functioning of the underlying national civil litigation system.
The survey faces a number of limitations including the fact that it represents a small-n sample, and as such, the findings cannot be considered generalizable. In addition, as prior studies have noted, self-reported perceptions are subject to bias and statements may not always reflect actual practice. (5)
Summary of Findings
The findings of this Article can be grouped into three areas: correlation between program type and perceptions of the process, insights from practitioners regarding strengths and weaknesses of existing programs, and synthesis of practitioner suggestions for improving the current mediation process.
The first area reports on the correlation between mediation program type and perceptions of confidence, fairness, and efficiency of the process. Here the data suggests that while slight variation exists such that practitioners report higher levels of confidence in mandatory mediation programs, and higher perceptions of efficiency in voluntary programs, they regard voluntary and mandatory mediation programs with relatively equal perceptions of fairness. No statistically significant variation exists with respect to such findings.
The second area reports on insights from practitioners regarding the strengths and challenges of existing court mediation programs by voluntary or mandatory program type. The findings here indicate that practitioners working in mandatory court mediation programs identified several key benefits of such programs including normalizing party-driven resolution, improving efficiency and speed through effective case screening, and facilitating relational repair. Practitioners working in voluntary programs identified the key strengths of those such programs as the development of a well-established and supportive mediation culture, self-determined party engagement, simple procedures, welcoming facilities, high quality mediators, and ongoing monitoring and evaluation.
With respect to program challenges, mandatory mediation practitioners noted limited party understanding of the mediation process, lawyer conflicts of interest, mediator quality, lack of good faith, inexperience in managing power imbalances, and resource limitations. Challenges within voluntary court mediation programs included difficulties associated with encouraging party participation, limited resources, and mediator quality.
The final area of this Article synthesizes practitioner suggestions for improving the overall court mediation process by program type. Mandatory mediation program practitioners had a number of useful suggestions for improving the quality of court mediation systems, including: enhanced training, public education on the benefits of mediation, funding and organizational resources, mediator incentives, ongoing evaluation, and greater flexibility in settlement arrangements. Voluntary mediation program practitioners identified similar suggestions, including enhanced mediator training, greater financial resources, increased public education, improved facilities, and more directed encouragement of litigants' attempts of mediation. The findings of this Article engage with the recent series of Global Pound Conference (GPC) sessions suggesting that greater consideration may be given to the development of legislation supporting the enforcement of mediated settlements. (6)
SURVEY DATA COLLECTION METHOD
Survey data was collected from eighty-three practitioners in order to gain insight into the dynamics of mandatory and voluntary court mediation programs and the impact of program type, if any, on perceptions of confidence, fairness, and efficiency among selected practitioners. The survey examined how practitioners working in voluntary and mandatory mediation programs viewed existing strengths, challenges, and lessons learned. Given the small sample size (n=83), the purpose of the survey was to supplement case studies by offering insights into how practitioners are learning to advance program development in both mandatory and voluntary court mediation contexts, rather than to provide generalizable findings.
Figure 2: Region of Practice (7) Region of Practice Asia, 47.50% Americas, 28.80% Australasia, 13.80% Europe, 8.80% Africa, 1.30% Note: Table made from pie chart. The survey questionnaire contained a quantitative part asking for yes-no answers and numerical responses in the form of percentage estimates or evaluations according to a five-point scale, as well as a supplemental part containing qualitative, open-ended questions asking for personal observations, judgments, and proposals.
The first part of the survey asked participants for background information on their region of practice, the nature of their court mediation system (whether voluntary or mandatory), and cost coverage of the program. The second part of the survey examined the impact, if any, of court mediation program type on participants' perceptions of confidence in the system, fairness, and efficiency. The final part examined the strengths, challenges, and suggestions for improving the overall functioning of both voluntary and mandatory court mediation programs. These findings will be discussed in greater detail below.
Figure 3: Experience with Court Mediation (8) Experience with Court Mediation Mediator, 37.50% Judge, 28.80% Lawyer, 25.00% Court Mediation Administrator, 6.30% Court Mediation Participant 2.50% Note: Table made from pie chart. The survey was conducted between September 2015 and January 2017. A total of 120 surveys were distributed in person and initiated via a web link portal and eighty-three surveys were completed. Given the small sample size (n=83), the survey aimed to provide insights into the dynamics of voluntary and mandatory court mediation programs rather than provide for generalizable findings. The sample pool consisted of a convenience sample of voluntary and mandatory mediation practitioners selected from contacts made with members of professional court associations including members of the American Bar Association (ABA) Young Lawyers Division, the ABA Section of Dispute Resolution, the Mediator Network, the CPR Institute, the National Centre for State Courts, Mediators Beyond Borders, the Hong Kong Mediation Network, the Resolution Systems Institute, the Asia Pacific Mediation Forum, the Court Annexed and Judicial Mediation Network, and the Collaborative Justice Institute. In addition, the survey was distributed through contacts made at an Asia-Pacific UNCITRAL Conference on Harmonizing Trade Law, the UC Hastings Center for Negotiation and Conflict Resolution, the Singapore International Arbitration Forum, the Center for International and Comparative Law, the Peace Chair at the University of Maryland, the UC Berkeley Center for the Study of Law and Society, the Chiangmai Provincial Court Mediation Program, the Siam Legal ADR Group, the Knight Group Mediation Program, the ADR Unit of the U.S. District Court, the Superior Court of California, the World Bank Group, the New York State Unified Court System, the Center for...