By Richard L. Hurford
Two fascinating follow-up studies, one conducted by the Supreme Court Administrative Office (SCAO), and another by the ABA Section on Alternative Dispute Resolution, provide significant insights on the mediation process and the timing of ADR that mediators and litigators should consider. Before discussing these follow-ups, let’s quickly review the initial studies
In the first ABA study, Task Force on Improving Mediation Quality (2008) http://www.americanbar.org/content/dam/aba/migrated/dispute/documents/FinalTaskForceMediation.authcheckdam.pdf, experienced litigators catalogued their four most significant criticisms of mediator practices:
Preparation:
All too often the mediator failed to be sufficiently familiar with the facts of the case and applicable law. There was a belief some mediators did not review all of the\parties’ submissions or become knowledgeable of the status of the case or the prior negotiation history of the parties.
Process:
As stated in the study:
“Some mediators and some parties and counsel may, almost by rote, rely upon essentially identical approaches to every case. In most cases, however, mediators would be best advised to make an effort to evaluate each case on its own, and develop a process in coordination with the parties and counsel, that is best suited for that particular case.”
Analytical Skills:While all parties appreciate the use of a mediator’s analytical skills there is a wide divergence among litigants as to whether “facilitative” or “evaluative” techniques are most desirable. Clearly, the effective use of mediator reframing and looping techniques are almost universally embraced by litigators. Virtually no one appreciated opinions from the mediator such as “your case is only worth,” “this is how much you should pay,” “this is the best you are going to do,” or “if I were you this is what I would do....”
Perseverance:
Litigants are very critical of mediators who “give up” too early in the mediation process and declare an impasse prematurely without exhausting all possibilities for a potential resolution. Similarly, litigants are critical of mediators who fail to follow up with the parties after an unsuccessful mediation to determine if further discussions and negotiation might be of assistance.
The first SCAO study, The Effectiveness of Case Evaluation and Mediation in Michigan Circuit Courts (2011), courts.mi.gov/Administration/SCAO/Resources/Documents/Publications/Reports/ The%20Effectiveness%20of%20Case%20Evaluation%20and%20Mediation%20in%20MI%20Circuit%20Courts.pdf, reflect the timing and selection of the right ADR process is important.
The study demonstrates that case evaluation as the only ADR strategy, or ordering mediation after an unsuccessful case evaluation, can actually lengthen case age, costs, and the additional consumption of judicial and litigant resources. As reflected in the study the selection and timing of ADR processes can significantly impact case aging:
In the approximately 300 cases that were involved in this study, the selection of the ADR process also had a statistically significant impact on the percentage of cases that were tried:
• If no ADR was ordered, approximately 3% of the cases ended in a trial
• If only case evaluation was ordered, approximately 7% of the cases ended in a trial
• If court-ordered case evaluation was followed by mediation, approximately 10% of the cases ended in a trial
• If only mediation was ordered, approximately 0% ended in a trial
SCAO’s update to this study, Case Evaluation and Mediation in Michigan Circuit Courts (2018), courts.mi.gov/Administration/SCAO/OfficesPrograms/ODR/Documents/2018%20Mediation%20and%20Case%20Evaluation%20Study.pdf, indicated the use of and perceived efficacy of case evaluation is on the decline with both judges and litigators. The survey data from this follow up study reflect both judges and attorneys report a greater use of mediation and many noted case evaluation is used less often. There has also been a decline in the percentage of judges who said they would continue to use case evaluation if it was not mandated by statute. While the percentage of judges who favor the use of case evaluation has decreased between the two studies (83% to 66%), the amount of decrease in the perceived benefits of case evaluation decreased more significantly when litigators are surveyed (66% to 29%). While a majority of judges believed that case evaluation is an effective settlement tool, most attorneys did not view case evaluation as an effective settlement process. Both judges and attorneys have argued for greater flexibility in choosing which type of ADR to use and when to use it – tailoring ADR use to the unique requirements in each civil case.
As a result of the SCAO studies, some Michigan courts, including most Business Courts, no longer routinely order case evaluation. Other courts will not order case evaluation unless and until other ADR options have been attempted.
Other courts may routinely grant objections to case evaluation filed pursuant to MCR 2.403 (C) where both parties agree that case evaluation, given other ADR options that are being pursued, will not be a cost-benefit.
It is important to be aware of the specific practices of the judge assigned to your case to ensure the ADR processes are sequenced and timed appropriately to meet the unique needs of your case.
In the second ABA study, Report of the Task Force on Research on Mediator Techniques (2017), https://www.americanbar.org/content/dam/aba/administrative/dispute_resolution/med_techniques_tf_report.authcheckdam.pdf, the focus was on fifty research studies reflecting the impact of various mediator techniques and practices on the success of a mediation.
When looked at as a whole, the studies were mixed in their findings regarding the effect of various categories of mediator techniques on outcomes. Because the findings were mixed, the studies provided no clear guidance on a number of techniques that have a positive effect on outcomes and which will be detrimental. However, a few techniques were found to have a higher potential of a positive effect both on settlement and on disputants’ relationships and perceptions of the mediation process. These are:
• Paying more attention to disputants’ emotions, relationships, and sources of conflict
• Working to build trust and rapport, expressing empathy or praising the disputants, and structuring the mediation agenda to the needs of the case
• Using pre-mediation caucuses and conference calls with counsel that focus on establishing trust
• Eliciting disputants’ suggestions or solutions during the course of the mediation
Five studies looked at the effect of mediators working with disputants to suggest possible solutions, helping them to generate new ideas, or asking them to respond to or evaluate ideas or proposals. None found a negative effect on settlement or on participant relationships or perceptions of the mediation, though they were mixed as to whether they had a positive effect or no effect on achieving a resolution.
Most of the 11 studies that examined the effect of mediators paying more attention to the relationship/emotional aspects of disputes found that this had a positive or neutral effect on settlement. If paying more attention to the relationship/emotional aspects of the dispute was combined with proposals for how to avoid the appearance of defeat, settlement was more likely.
With regard to the practice of holding “caucuses,” typically embraced by mediators and shunned by litigators, the studies did not reflect that caucuses had any impact on settlement rates or the satisfaction of the parties with the mediation process or the ultimate settlements. The bottom line is that caucuses can be most effective when strategically utilized and tailored to the needs of the case.
In sum, these studies provide significant valuable information to litigants and mediators on mediation processes and timing issues. Litigants and their clients may be well served:
• To focus on when to stage and time the appropriate ADR process (which will rarely, if ever, be a case evaluation followed by a mediation);
• Selecting a mediator: who is prepared; who discusses and collaboratively tailors the mediation process to the needs of the dispute; who has the requisite analytical skills (i.e., avoids “overly directive” statements and observation and uses reframing and looping techniques); and, who perseveres in seeking a resolution including seeking suggestions and potential solutions from the parties;
• By looking for methods, whether a pre-mediation conference call or other process, to build trust between the parties to the mediation;
• By assisting (and encourage as appropriate) the mediator to explore the source(s) of the conflict, the emotions and relationships of the parties; and,
• Selecting a mediator who routinely follows up with the parties after a “failed” mediation to determine if further negotiations or a reconvening of another mediation will be of assistance.
A Special Bonus Opportunity
A number of the issues and the studies addressed in this article will be explored in greater detail by a Justice of the Michigan Supreme Court (Hon. Bridget Mary McCormack), three Kent County Judges (Hon. Kathleen A. Feeney, Judge, 17th Circuit – Family Division, Hon. David M. Murkowski, Chief Judge, 17th Circuit Probate Court, and Hon. Christopher P. Yates, Judge, 17th Circuit – Business Court), and four PREMi ADR experts. On October 31, 2018, from 1:00 pm to 5:00 pm at the Kent County Courthouse a program entitled EFFECTIVE ADR ADVOCACY: Learn Expert Tips from Judges and Professional ADR Providers, will be held. Such topics as 10 Tips for A Winning Mediation, Creative and Effective ADR Processes (a discussion of leveraging evolving judicial practices and various ADR and negotiation processes to best achieve client objectives, with a focus by Justice Bridget M. McCormack on the efficacy of Summary Jury Trials), and Views from the Bench: Ways to Get More Value from ADR (during which the Justice and Judges will explore their thoughts and answer your questions on the use of ADR). We hope you will consider attending this unique opportunity to hear from the justice, the judges and the ADR experts from PREMi.
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Richard Hurford is the president of Richard Hurford Dispute Resolution Services PC and a principal in Strongbridge Negotiation Strategists PC. He is the past chair of the ADR Section of the Michigan State Bar, the Macomb and Oakland County ADR Committees, current Co-Chair of the ADR Section of the Federal Bar Association, and past President of the Southeast Chapter of ACR. He has been a perennial “Best Lawyer” since 2007. He is the co-author of the nationally recognized “A Taxonomy of ADR” (2015) and a contributor to the Supreme Court Administrative Office’s publication the Michigan Judges Guide to ADR Practice and Procedure (2016). He is a professional with Professional Resolution Experts of Michigan (PREMi, https://premiadr.com/), a Distinguished Fellow in the International Academy of Mediators (by invitation only), a member of the National Association of Distinguished Neutrals (by invitation only) and a member of AAJ, DRI, and MDTC. His website can be accessed at hurfordresolution.com.
