"Learning about the mediation process by studying the adversarial opinion that the ADR process was designed to avoid may be ironic, but it can be productive. Admittedly, a written trial or appellate court decision is by no means a perfect window into the world of mediation. Only the rare mediated dispute shows up in a reported opinion. Moreover, court opinions, particularly appellate court opinions, do not provide a full picture of the conflicts faced by the parties. Still, given the oft-expressed mediation objective of providing an alternative to the traditional adversarial system, the phenomenon of mediation litigation is a 'disputing irony' that warrants closer examination. Indeed, much can be learned from these 'failed' mediations."
James Coben and Peter N. Thompson, Disputing Irony: A Systematic Look at Litigation About Mediation, 11 Harvard Negotiation Law Review 43 (Spring 2006. For an update on Mediation litigation trends, see Mediation Litigation Trends: 1999-2007, 1 WORLD ARBITRATION & MEDIATION REVIEW 395 (2007), also authored by professors Coben and Thompson.
Welcome to the Mediation Case Law Project at Hamline University School of Law. This site is devoted to examining the lessons that can be learned from "failed mediations." Whether you are a mediator, a lawyer representing clients in mediation, or a mediation consumer, the phenomena of litigation about mediation is something you ignore at your peril. For a systematic examination of mediation litigation trends, please read Disputing Irony: A Systematic Look at Litigation About Mediation, 11 Harvard Negotiation Law Review 43 (Spring 2006), and Mediation Litigation Trends: 1999-2007, 1 WORLD ARBITRATION & MEDIATION REVIEW 395 (2007), authored by Hamline Professors James Coben and Peter Thompson.
On this website you will find the following tools:
- More than 40 teaching videos produced by Professor Coben and the Minnesota State Bar Association. Each video, typically less than three minutes in length, focuses on a single reported mediation case and attempts to illustrate what went wrong at the mediation that resulted in litigation. Videos are organized by litigation theme: enforcement, confidentiality, sanctions, ethics/malpractice, and miscellaneous. For each video you click on, you will be directed to a short case summary and a windows wmv or quicktime video file. There is no charge for use. The videos present a valuable jumping off point (often "tongue in cheek") for critical discussion of significant mediation issues, suitable for academic classes, mediation training, or continuing education courses.
- Written summaries of the most significant mediation cases (1999 to today), organized in a variety of user-friendly ways (by type of mediation dispute; alphabetical; by year).
- A database containing all mediation cases reported on Westlaw where U.S. state or federal judges were forced to decide a disputed issue about mediation (2,219 cases between 1999 and 2005). You can download the database (it's a searchable excel file) and quickly find cases about particular mediation subjects in specific jurisdictions.
A Quick Review
Realizing that there was a treasure trove of data in the large body of judicial reflection on mediation, we decided to systematically try to analyze mediation case law. As described in more detail when you click on the database link above, we ended up compiling 2219 state and federal court mediation decisions available on the Westlaw databases "allstates" and "allfeds" for the years 1999 through 2005. In this seven-year span when general civil case loads were relatively steady or declining nationwide, mediation litigation increased from just 172 decisions in 1999 to more than 500 in 2005.
The mediation issues being litigated are quite diverse. We expected, and indeed found, large numbers of opinions about mediation confidentiality (237), enforcement of mediated settlements (953), duty to mediate (491), and sanctions (180). However, we did not anticipate the significant number of decisions addressing mediation fee and cost issues (453), ethics/malpractice (160), or the intersection between mediation and arbitration (144).
We were surprised by how frequently courts consider evidence of what transpired in mediations. There are nearly 500 opinions in the database in which courts considered mediation evidence without either party raising confidentiality issues. Moreover, mediators offered testimony in 126 cases, with objections raised only 41 times, and the evidence was precluded in only 17 cases. This rather cavalier approach to disclosure of mediation information is certainly at odds with the conventional wisdom positing that confidentiality is central to the mediation process.
Equally surprising was the dearth of cases addressing mediator misconduct, which was asserted as a contract defense only twenty-six times in seven years. Either the concern about coercive mediators is unwarranted or the litigation process does not provide an appropriate forum to address this issue. Most of the enforcement cases raised traditional contract defenses. One general conclusion to be drawn from the dataset is that in litigation, existing legal norms force defects in the mediation process to be framed in terms identical to those used to address issues that plague unfacilitated party-bargaining. Thus, when parties attempt to enforce mediation settlements in court, the litigation focuses on typical contract issues, such as claims of unenforceable agreements to agree, failure to have a meeting of the minds, fraud, changed circumstances, and mistake.