The Most Successful Court Mediators Are Not Necessarily Lawyers – and Other Findings From the Court Mediation Program

 Mediation is gaining popularity in Canada but promotion of mediation is still mostly anecdotal. To develop further, the field needs a more solid foundation of deep empirical research. Mediate BC is attempting to fill some of the gaps based on fourteen years of data collection by its Court Mediation Program (the “CMP”). The CMP has administered the mediation program in the Provincial Court of BC, Small Claims Division, since 1998 and now mediates claims up to $25,000 in Vancouver and up to $10,000 in four other locations. The CMP recently celebrated its 20,000th referral! It has thousands of mediations in its database which is a treasure trove of information, only a portion of which has been explored in a detailed empirical way.

A new CMP study examined data collected with respect to 4327 cases mediated between April 1, 2008 and August 15, 2010. The purpose of the study was to determine which system, program, case and mediator characteristics were most related to settlement and the report written by Sarah Vander Veen and Angela Mallard produced some fascinating findings!

First, it is important to recognize that context is everything in data analysis. The CMP uses a unique mediation model and a diverse group of mediators. In particular:

1. The model:

a. Small claims cases are streamed by the Court into mediation and mediators are assigned (a “mandatory” rather than “voluntary” referral process)

b. Cases are scheduled for one two-hour mediation session. No further sessions are permitted

c. Mediators must use interest-based approaches and refrain from giving legal opinions or advice

d. A resolution is only recorded as a “settlement” if all issues are resolved AND all parties sign a prescribed form of Mediation Agreement during the two hour session. Use of this very narrow definition of settlement undoubtedly understates the number of settlement agreements flowing from the mediation process.

2. The mediators:

a. Come from a wide variety of professional backgrounds (less than half have legal backgrounds)

b. Are independent contractors paid on a per case basis

c. Must satisfy high training and experience standards (all must be members of Mediate BC’s Civil Roster).

Second, while it is true that settlement rate is not the only (or best) indicator of effectiveness, it remains the key goal of most parties choosing mediation.

With those points in mind, in my view the most interesting findings from this study were:

• No one characteristic completely explained or predicted settlement. This is not surprising – disputes are complex!

• Settlement rates gradually decreased as claim amounts increased in a fairly linear way:

Figure 2. Settlement rates by claim amount

(Click on image to enlarge.)

• Claims of exactly $25,000 had the lowest settlement rates. This is likely because many parties abandon a portion of their claim to access the small claims court process. Higher value claims typically involve more lawyers and are often more complex.

• Settlement rate also varied by type of claim:
  • Highest for goods and services cases (including all debt, contract and construction cases)
  • Lowest for personal injury, insurance and employment cases. These cases involved higher claim amounts on average, more lawyers and likely more complex issues. This result might also be related to the CMP’s restriction to interest-based approaches which may not be what insurers or lawyers are used to.

• The identity of the mediator was the most robust predictor of settlement of all of the variables analyzed. Even then, it was, statistically speaking, only a weak predictor of settlement. Mediation remains a bit of a “black box”. It is each mediator’s unique set of tools and strategies that correlates most closely with settlement but it is difficult to analyze those strategies scientifically (short of being a fly on the wall in every mediation room). The mediators’ own descriptions of their approaches can be helpful but how the fine process decisions play out in the moment may be the most critical element. The field needs to know more about this mysterious dynamic to increase settlement rates and to improve mediation professional development and training programs.

• 72% of the mediators settled more cases when there were no lawyers at the mediation. This finding is tentative but raises very interesting questions. Remember, these are small claims matters and parties want to get them resolved quickly and effectively. Are lawyers impeding this process in some way or is it possible that parties are making imprudent settlements?
• Finally, mediators with a legal background settled fewer cases than those from other backgrounds, even for higher value claims which one might think would benefit from legal expertise. This is to me the study’s most intriguing finding. As any lawyer who has completed the CMP’s Small Claims practicum will tell you, lawyering skills are very different than those needed to conduct an effective mediation – and they sometimes actually get in the way! During my own practicum training in 2003 I found I had to “unlearn” some of my legal skills and habits in order to mediate effectively in this setting. One of the wonderful things about mediation is that it draws on a wide variety of backgrounds and experiences and the field is richer for that diversity. Lawyers do not have a monopoly on effective dispute resolution skills, even in a court mediation setting.

In the end, this study demonstrates that more in-depth empirical research is needed. I invite you to review this report and let us know your thoughts!