DISCUSSION OUTLINE FOR
TIMING IS EVERYTHING- WHEN AND HOW TO MEDIATE EFFECTIVELY
This panel will focus on the timing elements for successful mediation: when to propose
mediation, when and how to prepare for the mediation, when to hold the mediation hearing,
timing issues during the mediation, processes for coordinating the development of those
elements with any court-annexed dispute resolution processes, and timing issues after the
mediation.
Along the way, panelists will discuss the role of the mediator in identifying and
overcoming barriers to resolution and moving the parties beyond such barriers, and the role of
in-house counsel in preparing the client to be able to take advantage of opportunities when
they arise.
CPR’s 2013 Annual Meeting
Timing Is Everything (in mediation)
GIVE PEACE AN EARLY CHANCE
By: Les J. Weinstein, Esq., FCIArb
The case for the earliest possible mediation in
business disputes:
While many factors impact the success or failure of
mediation to bring about resolution, perhaps none is
more important than when, in point of time and in the
dispute process, the mediation occurs. This is true
whether the mediation is court ordered or
encouraged, and therefore one to which one or more
parties may enter without a present plan, desire or
ability to settle or whether it is one in which the
parties willingly (or even hesitatingly) initiate the
process. Indeed, many successful pre and post filing
mediations take place before swords are drawn and
bloodied and while the dispute may still be cool and
circumstances cordial. All too often, however,
waiting until the “important” facts are “in” via
discovery or after motions are ruled upon, dooms an
otherwise resolvable dispute to being a full blown
adversarial “Ben Hur” legal production, complete
with chariots, horses and warriors which too often
results in a post mortem determined and perhaps
unforeseeable lose-lose.
The trend toward early mediation is accelerating
where sophisticated corporate law departments and
their general counsels or litigation counsels are
involved since by the law of large numbers and
experience they and their budgets are in a better
position to value and appreciate the numerous
benefits of near term resolution and the downsides of
tribunal adjudication. Additionally, the increasing
stress on our court systems with their attendant
delays and associated costs is a painful reminder of
the limitations of modern day adjudication.
All too many litigations and arbitrations end up,
whether settled late, dismissed on motion or going to
judgment or award, as a net lose-lose for the parties
because the total “costs’ in an economic and/or
business sense overwhelm the true stakes. This often
comes as a rude shock even to the most sophisticated
parties and counsel. As a wise jurist once told me,
“nothing as certain in a litigation as the potential
uncertainty of its outcome.” He also posited that,
“often a ‘bad’ settlement is better than a ‘good’
lawsuit.” Experienced litigators and clients know that
cases are often resolved in an unexpected way at trial,
on appeal or retrial based on an issue, which was not
central to the initial dispute or even anticipated.
The search for other than very early “ideal” timing
(after discovery or dispositive motions) can course
depend on many factors including the relationship of
the parties, the amounts at stake, the goals or
objectives of each party to the dispute (which may
not be monetary), access to the information needed to
make a fair assessment of the value, the perceived
risks and costs of the dispute, how much and by
whom legal expense may be incurred, the role of
insurance coverage, customer, shareholder,
governmental and public relations, the disruption in
the lives or businesses of the parties and their
executives and employees and other externalities.
Most of these favor early mediation; often the earlier
the better.
There are admittedly situations where the need for
preliminary relief, confidentiality, the desire for
surprise or other tactical goals rule out very early pre
or post filing mediation but those are the exceptional
disputes. For the large majority of major business
disputes of the type incurred by CPR members, very
early mediation frequently has many advantages.
More often than not, unless the amounts at stake are
very large in relation to the direct and indirect costs
of proceeding, an early mediation potentially has
greater value assuming cooperative counsel and their
client’s willingness to voluntarily exchange otherwise
discoverable or court rule required disclosures. Such
mediations can frequently result in an settlement
which is a relative win-win either my reaching a
satisfactory and profitable business arrangement or
by costing less than seeking a litigated “fair”
outcome let alone the illusive “justice” each party so
often initially feels entitled to receive but in the end
remains unsatisfied often blaming the “lying”
witness, the “disappointing” expert, “wasteful”
counsel, the “system”, the “ignorant” jury, the “lazy”
arbitrator, the “busy” judge or the “damn” press
(among others).
Of course not all cases should, will or can be settled
early or at all and that is what discovery, courts,
juries, judges and arbitrators are there for.
Many such disputes involve not only large sums but
also other issues of business or tactics, about which
the parties believe themselves correct and are willing
and able to run the costs and risks of being
disappointed in the outcome. That acknowledged,
leaves the statistics to speak for themselves.
Depending on the particular court involved and the
type of dispute, about 85-95 percent of filed court
cases, including business disputes, never come to a
final adjudicated bench or jury trial judgment.
Motions, settlements and abandonments end most
filed court cases. While more business related
arbitrations, percentage wise, go on to an award, the
same principles apply. For those that go to a court
trial, the costs and risks of an appeal and/or retrial are
often not figured into the initial assessment. For
example and as many a patent litigant can tell you, it
isn’t over until it’s really over and then maybe not
until the jury retrial after the Court Of Appeals For
The Federal Circuit has its often unpredictable say on
a Markman claim construction ruling or substantive
law ruling.
Almost all disputes can benefit, with little or no
downside, from a very early and fully prepared for
mediation even if it fails to resolve the case because
it can:
1. If it settles, bring significant cost savings and
other benefits.
2. Bring the decision-making client principals face
to face often for the first time. They may change
what was understood or may have been
misunderstood. To borrow a phrase, there are the
known-unknowns and unknown-unknowns. An
early meeting can also reveal to involved and
often reluctant insurers their potential risks and
costs.
3. Serve to educate counsel and their clients to the
merits or strength of the other side’s case and its
motivations.
4. Reduce the costs of the remaining proceedings
by narrowing the dispute.
5. Encourage voluntary early discovery particularly
regarding damages or defenses.
6. Avoid or minimize public embarrassment and
bad publicity.
7. Minimize negative impact on company
productivity.
8. Result in a business deal which is beneficial to
both sides; the so called win-win
9. Reduce business uncertainty and enable
planning.
10. Open channels of communication between the
parties often with attendant benefits.
The key to achieving a high early mediation success
rate is “preparation, preparation, preparation” by the
parties. By definition a successful mediation is
almost always a win-win because it is agreed to and
therefore at minimum acceptable to all involved.
These are, perhaps the obvious, elements of sound
preparation:
1. The selection of a subject matter appropriate and
skilled mediator who fully engages with counsel
prior to the mediation.
2. Careful early analysis by counsel and his or her
client of the strengths and weaknesses of both
the client’s and opposition’s position.
3. Selection by each party of an empowered and
knowledgeable client representative.
4. The exchanging of mediation statements, which
are all read by the client representatives.
5. Not having the mediation limited by counsel’s
prejudgment of the case or mediation format
6. Consideration of bringing and using appropriate
key witnesses and or/experts in the mediation.
7. Where appropriate, using graphics or other
demonstratives to convey a point or message.
8. Not limiting the mediator to a strictly caucus
approach.
9. Being willing, if necessary, to trying to avoid
impasse by inviting a mediator’s proposal.
11. Maintaining cordiality.
12. Not offering unrealistic or insulting proposals.
Early mediation is increasingly being used to
resolve business disputes for a reason: The
business of business is business.
Les J. Weinstein is a CPR, AAA/ICDR, WIPO and AIA arbitrator
and mediator and a USDC and CAFC mediator. He is also
DecisionQuest’s Director of ADR Consulting Services.
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Chapter Four
Preparing for Federal ADR
Careful preparation for ADR is essential. Much important work
takes place before the ADR process even begins. Parties must de
cide such matters as when to conduct the ADR, how to write their
pre-ADR statements, who should attend the sessions, and what to
discuss with the neutral in advance. Both attorneys and clients will
ﬁnd that time spent in preparation for ADR pays signiﬁcant divi
dends. The process sometimes moves quickly once it begins, so par
ticipants need to understand their goals before they start. In this
chapter, “ADR” refers primarily to mediation, which is used most
commonly in the government, but other processes will be identi
ﬁed by name when appropriate.
Deciding When to Conduct ADR
Disputes often are easier to settle earlier rather than later. When a
conﬂict is fresh, parties often are more willing to compromise and
put the matter behind them. The longer a dispute persists, the
more it tends to corrode the relationships of the people involved.
Both sides become hardened in their positions. If the parties con
tinue to have contact with each other, their negative feelings may
create further disputes. Although there are exceptions, it is often
best to use ADR to nip conﬂict in the bud.
Research by the Department of Justice and Indiana University
has shown that using ADR earlier in the life of a case tends to resolve a case more quickly than using ADR later. This study consid
ered hundreds of cases where Department of Justice attorneys used
ADR (principally mediation) in pending civil cases around the
country. It measured each case’s time to disposition by comparing
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75
the date it was ﬁled with the date it was resolved (whether by set
tlement, motion, or trial). Time to disposition for cases where ADR
was used earlier was signiﬁcantly shorter than time to disposition
where ADR was used later.1
Administrative Stage or Federal Court Stage
Most cases involving the federal government begin with an admin
istrative process at an agency, and this is often a good place to start
with ADR. At the agency level, the case is new, parties are not as set
in their positions, attorney fees are relatively small or nonexistent,
and the relationship between the parties has not had as long to dete
riorate. If a case is not resolved at this stage, it typically proceeds to
federal court, where the government is represented by an attorney
from the Department of Justice. At this point, settlement may be
more difﬁcult. Federal court litigation is generally more formal
than administrative proceedings, and this can increase the tension
between the parties.
Parties have found workplace cases much easier to settle at the
administrative level than the federal court level. Agencies report
high levels of success with ADR in administrative workplace cases.
At the U.S. Postal Service, more than 80 percent of the workplace
cases where the parties use ADR are resolved.2 The comparable ﬁg
ure for the U.S. Air Force exceeds 70 percent.3 In contrast, the res
olution rate for workplace cases where ADR is used in federal court
litigation is only about 50 percent.4 This difference in effectiveness
is likely due in part to the increased difﬁculty in settling cases later
in the process.5
ADR can still work well at the federal court level, however. There
are a number of reasons that certain cases can be difﬁcult to resolve
at the administrative stage. For example, agencies lack authority to
pay above a certain amount of money to resolve some cases without
approval from the Department of Justice. Under those circumstances,
an agency will sometimes deny a claim for a higher amount, and the
case will proceed to federal court without an opportunity for settle
ment. In other matters, the parties do not have sufﬁcient informa
tion available to evaluate the worth of their case until it has been
developed through the agency investigative process. Even in cases
where ADR was used without success at the administrative stage, it
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can sometimes help settle the case when attempted again in federal
court. The overall effectiveness of ADR in settling government cases
in federal court litigation is 63 percent.6
Before or After Discovery
One of the advantages of ADR is that it can help resolve cases quickly.
If parties can settle their case prior to conducting extensive discov
ery, they can save considerable time and money. Discovery expenses
are frequently the largest component of litigation costs. Discovery
also can cause considerable disruption to parties because they must
spend time speaking with lawyers, responding to interrogatories, and
testifying in depositions.
Some cases require discovery before they are appropriate for
ADR. Parties may need to know speciﬁc details about their case in
order to value it intelligently for settlement purposes. Without this
understanding, they would have to rely on guesswork in determining their best negotiating position in ADR, and they might
overvalue or undervalue their case. Using ADR too early in a com
plex case can be risky.
One approach to resolving this tension is to follow the 80–20
rule: 80 percent of the relevant information that parties learn from
discovery often comes from the ﬁrst 20 percent of the money they
spend. Tracking down the last, difﬁcult-to-obtain data is the most
expensive part of discovery. Often, the ﬁnal portion of discovery is
not signiﬁcantly different from the bulk that came ﬁrst and thus is
of limited value anyway. If parties conduct initial core discovery,
they may ﬁnd all they need to know in order to resolve the case
appropriately.
Following this approach, parties can agree to take abbreviated
depositions of the key witnesses and then proceed to ADR. If nec
essary, they also may serve certain essential interrogatories and requests for production of vital documents. Often this will give them
everything they need to determine their negotiation position with
reasonable accuracy. They may not know with absolute certainty
whether they are missing something, but the beneﬁt from taking
this slight risk may be saving months of litigation and thousands of
dollars of expenses. If the case does not settle, the parties agree that
they remain free to take more extensive discovery at that point, in-
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cluding more in-depth depositions of parties they have already deposed in a limited fashion.
Even if ADR does not settle the case, it often has value in show
ing parties whether further discovery is necessary and, if so, what
discovery will be most important. Parties may learn during an ADR
session what issues are preventing them from resolving the case, for
example, and then can decide how best to proceed. In one case,
uncertainty about the testimony of one witness, a company vice
president, was preventing the parties from settling. The mediator
called the vice president and scheduled a one-hour deposition for
the following morning at 7:30 A.M. The parties took the deposition,
returned to mediation, and settled the case by 10:00 A.M.7
Attorney Fees
When a dispute has entered a legal forum, attorney fees are another
reason that ADR is often better used sooner rather than later. With
both sides paying lawyers, the cost of a dispute can rise rapidly. In
some cases, a defendant will amass legal bills at the end of a case
that are higher than the amount they could have paid to resolve the
entire matter at the outset. Plaintiffs sometimes ﬁnd that their re
covery from a case is less than the amount of money they have spent
bringing it. The earlier a party settles a case, the more money it
saves on fees.
Parties should consider their opponent’s perspective on attor
ney fees. Many times, plaintiffs want their attorney fees paid as part
of a settlement. In these cases, defendants who wait to settle must
often pay a much higher amount than they would have had to pay
at the beginning of the dispute, just to cover the increased attor
ney fees for the plaintiff. Plaintiffs also are well advised to settle ear
lier. If they wait until defendants have spent considerable sums on
lawyers, they may ﬁnd that these defendants develop momentum
toward trial that can be difﬁcult to overcome.
Analyzing a Case for ADR
Preparing for ADR requires parties and their attorneys to analyze
their case thoroughly for settlement purposes. Parties should start by
determining what their interests are in resolving the matter.8 How
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important is money in the dispute? Are timing considerations rel
evant? Might less money right away be as valuable as more money
later? What are the parties’ orientations toward risk? Would a certain
gain of a smaller amount of money be preferable to an uncertain op
portunity to gain a larger amount? What nonmonetary interests exist?
Are injunctive provisions more important than money? How im
portant is it to preserve good relations between the parties after the
dispute is over? Are government parties focused on setting a fair prec
edent? Is it important for private parties to protect their reputation?
This list just begins to cover the myriad of interests parties can have
in federal disputes. Parties should ensure they understand exactly
what they want from a claim.
It also is vital for parties to work to understand what the other
side wants from the claim. Learning the other side’s interests can be
just as important for parties as understanding their own. A dispute
can be resolved voluntarily only when both sides believe settlement
is to their advantage. Parties thus should spend time putting themselves in the other side’s shoes. What do they want from the matter?
How important is money to them? Are nonmonetary options possi
ble? What rank order are they likely to use for their various goals?
Once parties have determined both sides’ underlying interests,
they should focus on developing options for resolving the dispute.
The options with the highest likelihood of success will be those that
satisfy both sides’ most important interests. Creativity is valuable in
this part of the process. Parties should consider all possible solu
tions for resolving the matter. Settlements sometimes come from
unexpected directions, so parties should remain open-minded.
The more broad-ranging and inventive participants can be in gen
erating options, the more likely they are to resolve the dispute.
It is also useful to consider objective criteria that could be used
in evaluating settlement options. Legitimate standards are powerful
tools in negotiation, and they can help parties reach an outcome
that both sides perceive as fair. Examples of criteria include fair mar
ket value, recent court awards in comparable cases, and past deal
ings between the parties. Using such benchmarks in an ADR session
can be effective when opposing parties employ positional or bully
ing tactics. Criteria support the legitimacy of a party’s offer and allow
questions about why the other side’s low-ball position is fair.
Parties also should examine their alternatives to settling the dis
pute. Fisher, Ury, and Patton use the term BATNA, derived from the
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initials of Best Alternative to a Negotiated Agreement.9 Using this
analysis, parties should consider what their best option will be if they
fail to settle the case in ADR. With this information, they can com
pare any settlement offer they receive from the other side with their
BATNA. If it is better than their BATNA, they should accept it (or
see if they can negotiate an even better deal); otherwise, they should
reject it. Parties also should search for ways to improve their alternatives to negotiation, as this will improve their bargaining power.
They should estimate the other side’s BATNA as well, which can sug
gest appropriate negotiation strategies.
Both sides should examine the transactional costs they will incur
if they do not settle in ADR. Litigating a dispute is almost always expensive and time-consuming for all parties, and sometimes the costs
exceed the amount in dispute. Private parties must pay attorney fees
and spend time away from their other responsibilities to pursue a
case. Although government agencies generally do not have to pay
attorney fees for each case on a direct basis, the government still
faces considerable costs in litigation. During the time that agency
lawyers and Justice Department lawyers work on one matter, their
attention is diverted from other matters they could handle, and this
is a cost to the government. In addition, expenses such as deposition
fees, travel expenses, and expert witness costs can be substantial.
Government program ofﬁcials also may be required to participate
in many cases, taking them away from their other responsibilities.
Damage to morale and important relationships can occur while the
case is processed and should be considered. Both private and pub
lic parties should weigh all of these costs when they decide how to
make and respond to offers in ADR.
Parties need to ensure they are well versed in the facts and law
applying to their case. They should review all discovery materials
and other investigatory information to ensure they understand
everything relevant in the case. They should evaluate objectively the
strengths and weaknesses of their case. It also is important for parties to review the laws that apply to the matter, including statutes,
regulations, and relevant court precedents.
The rules that will apply to the ADR process itself should be
considered. If the ADR takes place before an agency, the Admin
istrative Dispute Resolution Act (ADRA) will generally govern the
proceeding. Agency ADR program documents may provide addi
tional guidance on the process. If the matter is in federal court,
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local court rules should be considered, as well as any special poli
cies issued by court ADR programs.
Parties should work to understand why their case has not yet
settled. This information can give them insight into how to pro
ceed in ADR. For example, if the government believes a case is not
settling because the private plaintiff has unreasonable expectations
of a high jury verdict in trial, the government can request an eval
uative mediator who will give the plaintiff an objective assessment
of the case. If a private party believes an agency case is not settling
because the agency attorney is not communicating well with the De
partment of Justice attorney handling litigation of the case, the pri
vate party can request that both attend the ADR session to improve
communication. If the case is not settling because of a personality
clash between the parties, they can ask that the neutral conduct
the ADR in private sessions with each side, to avoid exacerbating
conﬂict.
Risk analysis can assist parties in their preparation. This involves
identifying the possible outcomes of the matter and assigning prob
abilities to each outcome. Parties can then use these probabilities to
calculate the overall worth of the case. For a simple example, if a
party believes it has a 50 percent chance of winning at trial and win
ning would result in a $100,000 verdict, the expected value of the
case before trial is $50,000. If the party believes its likelihood of win
ning is 75 percent, its expected value is $75,000. Computers are use
ful for complicated calculations and to consider related factors such
as attorney fees, appeal costs, the time value of money, and risk proﬁles. By using a mathematical approach to evaluate the various pos
sible outcomes, parties can value their case more objectively. If they
ﬁnd their subjective, gut feeling of the worth of the case differs sig
niﬁcantly from the prediction made by the computer, they should
work to understand the discrepancy.
Preparing a Pre-ADR Statement
Many neutrals ask the parties to submit a written statement about
the dispute in advance of the ﬁrst ADR session. Neutrals review
these statements to learn the background of the case before they
meet with the parties. These statements are usually the parties’ ﬁrst
opportunity to educate the neutral on the merits of their positions.
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Parties should spend the time necessary to prepare an effective
statement. Some parties do not take this process seriously, and they
ﬁle bare-bones, perfunctory statements. They may fear that anything they say could be used against them, or they may prefer to
argue in person once they arrive at the ADR session. However, it is
wiser to view the statement as an opportunity rather than a burden.
Parties who can persuade neutrals that their position is stronger
have a substantial advantage in the process. Clearly, if neutrals have
decision-making authority, as is the case in binding arbitration, per
suading them is essential. Even if neutrals serve in an advisory ca
pacity, as in mediation, it is valuable for parties to have neutrals
understand their position well. Neutrals often ask parties probing
questions about the merits of their case in an attempt to assist them
in understanding the consequences of impasse. Evaluative mediators will go further by providing their assessment of the worth of
the case and attempting to persuade parties to accept it. Parties who
provide neutrals with arguments to use against the other side in
these efforts will be at an advantage.
Neutrals have different preferences in the format and content
of statements, so parties should ensure they understand what the
neutral wants from the statement. If the ADR is taking place as part
of a formal program in a court or agency, the program may have
rules on how to prepare the statements. Parties should generally
follow the requested format of the neutral or program. If a party
has a strong preference for a different format, it can present its
reasons to the other side and to the neutral in an attempt to ne
gotiate a change.
Generally, a statement begins by summarizing the case. Parties
can set forth the facts of the dispute as they see them. It is useful
to explain where the opposing party has a different view of key
facts. Parties then move to a discussion of the law. Again, it is useful
to highlight for the neutral where the opposing side differs on its
interpretation of the law. In a case where damages are signiﬁcant,
it can be worthwhile to provide a separate discussion of this topic.
Statements also should cover procedural issues. If a case is in
litigation, parties should tell the neutral about what discovery has
taken place and what is contemplated for the future. The neutral
should be told if there are any pending motions and if any are
planned. The neutral should know all relevant upcoming dates,
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such as the discovery cutoff date, the pretrial conference date, and
the trial date.
Neutrals beneﬁt from knowing about any prior settlement dis
cussions between the parties. Statements can include a summary
of previous settlement offers and counteroffers. This will enable
the neutral to anticipate the likely future behavior of the parties in
negotiation.
Parties should provide neutrals with any important exhibits. It
can be very helpful for a neutral to be able to review a key contract
or other document in advance of the ADR session. Neutrals also
may wish to review the written complaint, answer, and any appro
priate investigative reports. If a case is in litigation, copies of cru
cial discovery or motions may be valuable.
In some cases, parties exchange copies of their statements, and
in other cases they provide their statements only to the neutral.
The advantage of circulating statements is that all sides learn each
other’s positions in advance. This is the standard approach in ar
bitration. The beneﬁt of writing for the neutral’s eyes only is that
parties can speak more candidly about their positions, a common
procedure in mediation. If a party feels strongly that the statement
should be either private or shared, it should explain why to the
neutral and the other side. Neutrals are more likely to agree to requests made jointly by both sides. It also is possible to compromise
by providing one section of the statement to both parties and reserving another section of the statement for the neutral only.
It can be useful when writing a private pre-ADR statement to give
a candid assessment of the reasons the case has not settled so far,
along with suggestions for approaches to take during ADR to maxi
mize the chances for settlement. (Under certain circumstances, it
can be worthwhile to do this even if the statements are going to be
exchanged among the parties, in which case the matter may have to
be discussed more delicately.) For example, if a party believes the at
torney on the other side has an unrealistic appraisal of the case and
is unreasonably counseling the client to refuse a settlement offer,
the neutral can be alerted to this issue in advance. The information
will allow the neutral to focus on this issue during the ADR session.
If a party has a creative idea that may allow the case to be settled, the
party should share this information with the neutral, who may be
able to use it effectively during the ADR.
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Parties face strategic decisions when considering whether to
reveal information to the neutral that has been kept secret from
the other side. An initial question is whether the information is fa
vorable or unfavorable. If it is favorable, disclosing it to the neu
tral is likely to improve the neutral’s impression of the party’s case,
generally an advantage. If it is unfavorable, the analysis is more
complicated. On one hand, a neutral who is fully apprised of the
nature of the case will be in a better position to guide the parties
more accurately during the settlement process. On the other hand,
parties may ﬁnd that neutrals use this information in an attempt
to persuade them to take a weaker settlement than they otherwise
would have.
Parties also should consider whether the secret information
will inevitably be discovered by the other side during the course of
the matter if it does not settle. If so, parties may wish to attempt to
settle the matter quickly, and without disclosing the damaging information, in order to get the best settlement possible. However,
if it appears that the ADR will break down without an agreement
and the information surely will be discovered shortly thereafter,
showing good faith by revealing it to the other side may be worthwhile. Negotiations might then proceed more productively, albeit
in a posture less favorable than before the disclosure. In certain sit
uations, ethical considerations may apply to this decision as well.
It is important for parties to note explicitly in their statements
what information they want the neutral to keep conﬁdential. Neu
trals are careful about honoring conﬁdentiality requests, but it is
still worthwhile to emphasize what is to be kept private, to avoid
the possibility of confusion.
Choosing Who Should Attend ADR
An important part of the preparation process is deciding whom to
bring to the ADR sessions. There can be a number of choices in
this regard.
As an initial matter, the parties themselves usually attend ADR
sessions rather than leave the matter solely to their attorneys. The
presence of the parties is important to personalize the case to the
other side and to the neutral. On the plaintiff’s side, the presence of
the plaintiff is a powerful reminder to all participants that someone
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was harmed by the dispute. The attendance of the victim of dis
crimination in an employment case or the owner of a company that
lost thousands of dollars in a contract case, for example, underscores the personal nature of the claim. Similarly, on the defen
dant’s side, the presence of the client shows the other participants
that someone will be personally affected by the settlement as well.
Parties also should attend to demonstrate to the other side that
they will be persuasive witnesses before a judge or jury. Both sides
will be evaluating the likely result of the case if it does not settle and
goes to a hearing or trial. An important factor in this result will be
the credibility of the key witnesses. Parties who can demonstrate
during ADR that they will be effective witnesses can improve the set
tlement value of their case. (Conversely, if parties are likely to reveal that they would be poor witnesses, they should consider not
attending ADR or limiting their attendance to private caucuses.)
In cases where the dispute between the parties is particularly
personal, such as sexual harassment, additional factors come into
play. In some especially charged disputes, parties are so upset with
each other that having them meet together can be counterpro
ductive. A session that degenerates into angry accusations usually
makes settlement less likely. In this situation, the parties may wish
to notify the neutral to keep strong control over the process and
head off any confrontations before they start. The neutral also may
be advised to conduct most or all of the ADR in separate sessions
to keep the parties away from each other.
However, sometimes even in these cases, it can be beneﬁcial for
both parties to participate in ADR. In order for some parties to agree
to settle a dispute, they may need to talk with each other directly,
and ADR provides this opportunity. Face-to-face communication between the parties in ADR can be a far more effective engine for set
tlement than having their lawyers ﬁght in court.
Some private parties wish to bring friends or family with them
to ADR. For example, if a plaintiff’s spouse is going to play an im
portant role in deciding whether to accept a settlement offer, hav
ing the spouse come to the ADR may be advisable. Private parties
also may wish to have a family member or close friend attend for
emotional support.
The government’s choice of whom to bring to ADR depends on
the nature of the case. Sometimes it is useful for the government to
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bring an ofﬁcial who can explain what happened in the dispute. For
example, in a contract case, the government may wish to bring the
individual who made the decisions that led to the dispute. This of
ﬁcial could explain what was done and why. It also can be worthwhile
for the government to bring an ofﬁcial who can address possible set
tlement options. In a workplace case, for example, the government
may bring an employee from the human resource ofﬁce to advise
the parties on which remedies are possible for settlement and which
are prohibited by law or agency policy.
Different attorneys represent the government depending on
the stage of the case. At the administrative level, the government is
represented by an attorney from the agency involved in the dispute.
If a case reaches federal court, a lawyer from the Department of Jus
tice takes over the representation of the government. In federal
court matters, the Department of Justice lawyer will often bring an
agency lawyer as well.
Both the government and the private party may wish to bring
key witnesses with them in certain cases. In arbitration, witnesses
testify under oath as to what happened in the case. In mediation,
witnesses can be helpful more informally to clarify critical evidence
in the case. Witnesses are relatively unusual in mediation, however,
because parties prefer to focus on how to resolve the dispute rather
than how it arose.
Expert witnesses are sometimes useful in special cases. In tech
nical matters, for example, the parties may wish to bring an expert
to assist the neutral in understanding the nuances of the subject.
If so, they should notify the other side, which may then decide to
bring its own expert. Sometimes neutrals retain experts of their
own, to provide a nonpartisan view.
Parties should ask the other side whom they are planning to
bring to ADR. This information can give valuable clues to the other
side’s strategy and can help the party determine whom to bring.
A ﬁnal consideration is the number of participants to bring to
ADR. Parties should avoid overwhelming the process with large
contingents of people. This is particularly relevant for the govern
ment, which can look as if it is overpowering a private individual.
At the same time, parties should ensure that all necessary partici
pants are present. The balance between these considerations de
pends on the nature of each case.
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Obtaining Settlement Authority
Settlement authority can be a challenging issue for the federal gov
ernment in ADR. In an ideal world, it is clearly valuable to conduct
ADR with representatives of both sides who have authority to set
tle the dispute. Otherwise, parties must take potential settlements
back to individuals who did not participate in the ADR. These nonparticipating parties do not have the beneﬁt of observing the pro
cess to make credibility assessments and learn the nuances of the
other side’s position.
When parties must take potential settlements back to individuals
who did not participate in the ADR, it also delays the process. These
individuals may require changes, the changes may lead the other
side to request further changes, and these must then be approved
by the outside party yet again. This can take considerable time, dis
rupt the continuity of the process, and even prevent settlement.
Nonetheless, the government is often unable to provide someone with absolute settlement authority to participate in ADR. For
example, some people deﬁne “settlement authority” as the power
to agree to any settlement requested by the private party. If the pri
vate party asks for several million dollars, only a handful of ofﬁcials
in the United States have that authority. Thus, structural consid
erations frequently require the government to be represented by
someone who does not have complete settlement authority.
The U.S. attorney general has the ﬁnal authority to conduct
and supervise litigation involving the United States.10 The Justice
Department handles close to 100,000 civil cases each year, and the
attorney general clearly cannot personally attend negotiation ses
sions in all of them.11 Therefore, the attorney general has delegated
the authority to settle certain cases to other ofﬁcials. This authority
depends on the dollar value of the claim.12 At the local level, pres
identially appointed U.S. Attorneys have authority to settle most
cases within their district up to $1 million. Above that ﬁgure, ofﬁ
cials in the appropriate litigating division of the Justice Department
must be consulted. For cases in the range of several million dollars
and above, only the very top ofﬁcials in the Justice Department, in
cluding the attorney general, may approve a settlement.
The actual attorneys who handle litigation on a day-to-day basis,
assistant U.S. Attorneys and Department of Justice trial attorneys,
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generally do not have settlement authority on their own. They must
receive approval from their supervisors before they can sign an agree
ment and bind the United States.13 When nonmonetary relief is at
issue, such as debarment in a contracts case or a personnel transfer
in a workplace dispute, the Justice Department attorney also must
obtain the concurrence of the agency involved in the case.
For cases at the administrative stage, the situation is similar.
The agency head has ultimate settlement authority (in some cases,
even a cabinet secretary must receive approval from the Justice De
partment before settling a case). The agency head may delegate
authority to other ofﬁcials for certain cases. However, the agency
lawyers who work on most matters will need to obtain approval before they may settle a case. If the agency involved is headed by a
multiperson commission, such as the Securities and Exchange
Commission, Federal Trade Commission, or similar organizations,
settlements are not ﬁnal until the members of the commission vote
on the proposed resolution.
Although this situation can be frustrating for private parties
who are accustomed to participating in ADR with parties who have
full settlement authority, it is a necessary part of the process of lit
igating with the federal government. The government has impor
tant policy reasons that require settlement decisions to be made in
a uniform way. Unlike private companies, which can decide to set
tle claims in whatever way they wish, the government has a duty to
treat all citizens fairly. An important part of ensuring fairness in
handling claims by and against the government is to treat similarly
situated people in a similar way. Centralizing authority in a smaller
number of people helps protect these values.
Furthermore, the government responds to the will of the citi
zens through their elected ofﬁcials, and there are relatively few po
litical ofﬁcials at each agency compared with the number of career
civil servants who handle most of the daily business. These ofﬁcials
are charged with overseeing the government’s actions, and they su
pervise such large numbers of cases that they cannot be directly in
volved with each one.
In some cases, Congress has passed statutes requiring that the
public be allowed to comment on proposed government settle
ments before they can become ﬁnal. A number of such statutes
cover environmental matters.14 In these cases, the parties in ADR
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FEDERAL DISPUTE RESOLUTION
can agree to a settlement in principle only, pending the result of
public comment.
The Federal Rules of Civil Procedure acknowledge the special
concerns of the government in this regard: “Particularly in litiga
tion in which governmental agencies . . . are involved, there may
be no one with on-the-spot settlement authority, and the most that
should be expected is access to a person who would have a major
role in submitting a recommendation to the body or board with
ultimate decision-making authority.”15
Congress has recognized the issue as well, noting that the Jus
tice Department “cannot realistically send ofﬁcials with full settle
ment authority to each settlement conference.”16
Federal courts also have addressed this topic. The U.S. Court of
Appeals for the Fifth Circuit wrote, “Obviously, high-ranking ofﬁcials
of cabinet agencies could never do their jobs if they could be sub
poenaed [to participate in settlement talks] for every case involving
their agency.”17 The court overruled a lower court that had required
a government ofﬁcial with ultimate settlement authority to be pres
ent at all settlement conferences, stating that this order was an abuse
of discretion.18 The court held that under certain circumstances, a
court could issue such an order, “but it should consider less drastic
steps before doing so.”19 The court later upheld a district court order
requiring the government to bring an ofﬁcial with settlement au
thority in a speciﬁc case (as opposed to the blanket policy applying
to all cases in the previous example). However, the appellate court
requested that the district court contemplate the alternative of or
dering an ofﬁcial with settlement authority to “consider settlement in
advance of the mediation and be fully prepared and available by tele
phone to discuss settlement at the time of mediation.”20
Many federal court-sponsored ADR programs now acknowl
edge the limitations of the government by deﬁning “settlement au
thority” more leniently. Local court rules recognize that it can be
sufﬁcient for the government to be represented by someone with
signiﬁcant recommendation authority. This means that the attorney
has the ability to recommend a settlement to a supervisor, and it
implies that the supervisor will often agree to the recommendation
unless special circumstances exist.
Government attorneys should take steps to minimize the dis
ruption these policies can cause. It is good practice to notify the
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neutral and the opposing side well in advance of ADR if it will not
be possible for someone to attend with full settlement authority.
This information can be a surprise to parties inexperienced in
dealing with government cases. Government parties should explain
the situation and ensure that private parties understand the rea
sons for it. If a government party waits until the ADR session is un
der way before addressing this issue, both the neutral and the other
side may be understandably upset that the government is not fol
lowing the rules that normally apply to ADR.
It also is important for government attorneys to discuss upcoming ADR sessions with appropriate supervisors in advance. In
some cases, an attorney may be able to obtain delegated authority
at a certain amount prior to the beginning of ADR. If that amount
of money is sufﬁcient to resolve the case, the attorney will be able
to settle on the spot.
While ADR is in progress, government attorneys should main
tain close contact with supervisors to keep them apprised of de
velopments. This will enable them to make a quick and informed
decision when asked to approve a settlement. Regular contact with
a supervisor also will allow the attorney to represent the supervi
sor’s interests most effectively during the ADR.
It is useful for supervisors to be available for discussions by tele
phone while an ADR session is taking place. This will allow a gov
ernment attorney to obtain settlement approval more quickly, without
having to delay the proceedings very long. Sometimes neutrals and
opposing parties who object to the absence of someone with settle
ment authority will be satisﬁed when they know that a supervisor will
be readily available by telephone.
In rare cases, it may be worthwhile to bring someone with set
tlement authority if possible. Senior Justice Department ofﬁcials have
personally participated in a few ADR sessions, such as defense con
tracting cases where many millions of dollars have been at stake. At
a local level, some civil chiefs or U.S. Attorneys have participated in
ADR sessions in major cases, such as medical malpractice matters
with signiﬁcant government exposure. In large enough cases, it can
be worth the time of high-level ofﬁcials to participate in the ADR
process and ensure that their interests are represented directly.
These issues affect the government most dramatically, but it is
worth noting that private parties also sometimes have difﬁculty
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bringing someone with settlement authority. Private corporations,
for example, may not be able to obtain the participation of the
general counsel at every ADR session. At other times, a high-level
ofﬁcial may come at the beginning but be called away during later
sessions. Companies may also need approval from their board of
directors for a settlement. These limitations can be difﬁcult, but
parties who work together to cooperate with each other usually can
work around them.
Preparing the Client
Attorneys who represent clients in ADR have the responsibility of
preparing them for the process. Many private sector clients and
government client agency ofﬁcials have little or no experience with
ADR, making preparation essential. Even when the client is famil
iar with ADR, preparation is valuable.
Preparing the Client Generally
A good place for attorneys to start with clients is to cover all of the
points in the “Analyzing a Case for ADR” section of this chapter.
They should consider their underlying interests for settlement, cre
ative options for addressing these interests, and legitimate objec
tive criteria to support these options. It is important to discuss what
they will do if they cannot settle and to determine their best alternative to a negotiated agreement. They should conduct the same
analyses from the perspective of the other side, exploring their op
ponents’ interests, options, criteria, and alternatives. They should
go over the facts and law of the case and the strengths and weak
nesses of their position. This initial work is an important part of a
preparation session and should be done carefully.
If a client is new to the ADR process, the attorney should explain in detail what will happen. The lawyer should tell the client
in detail about the processes involved in opening statements, joint
sessions, and private caucuses.
It is important to explain to inexperienced parties that neutrals
do not function as judges (except in arbitration and early neutral
evaluation). Parties often instinctively turn toward neutrals and
treat them as if they were presiding over a trial. Clients should un-
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91
derstand that the goal of the process is to persuade the other side
to agree to a voluntary settlement, not to convince the neutral to
make a particular ruling.
Attorneys should tell their clients that the ADR process, unlike
a court proceeding, is voluntary. They can ask for a break at any
time for any reason. Clients should feel free to request a break
themselves or ask their attorney to call for one. They may want to
discuss strategy, ask their attorney a question, or just get a cup of
coffee, and any of these is appropriate. Neutrals sometimes talk di
rectly to clients and ask them, rather than their lawyers, questions.
If clients want to have a discussion with their lawyers before re
sponding, they should be encouraged to request a break to do so.
In most forms of ADR, parties are even free to stop the proceed
ings entirely if they do not like what is happening.
Clients should be told about the conﬁdentiality rules that apply
to ADR sessions (see Chapter Eight). As a general matter, anything
said in ADR in private sessions with the neutral is conﬁdential. However, parties should be aware that what they say in joint session in
front of the other side may not be conﬁdential. Under the ADRA,
statements in joint session are not generally conﬁdential in agency
ADR.21 Even in federal court ADR or in situations where the parties
sign a contract providing for conﬁdentiality, participants may not
be completely protected. Freedom of Information Act requests may
require the release of written documents used in ADR joint sessions.
Opposing parties may ﬁle requests for admission about comments
made in ADR or ask parties questions in depositions that are based
on what was said in ADR. Thus, parties should be advised to be care
ful about what they say when the other party is in the room.
Clients also need to know that the other side will be evaluating
their effectiveness as a potential witness if the matter later proceeds
to trial. It is surprising how often unprepared parties make sarcastic
comments or sneer when the other side is talking, thinking their
reaction somehow advances their case. If they disagree with something the other side is saying, they should resist the temptation to
interrupt or make disapproving gestures. Instead, they should pass
a note to their attorney, who will address the matter at an appro
priate time. Otherwise, clients may indicate to the other side that
they could be made to look angry or inappropriately emotional at
trial, which would make them less persuasive. Overall, they should
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maintain a calm, professional demeanor, to show that they would
be compelling witnesses.
Preparing the Client for the Opening Statement
It is usually effective for clients to participate in the opening state
ment in ADR, and this should be planned carefully. Plaintiffs should
prepare to describe how the actions of the defendant affected them
personally. Defendants should be ready to explain their conduct and
note how any harmful results were not their responsibility. Clients
who participate in ADR can personalize their case much more ef
fectively than those who have their lawyers do all of the talking.
Defendants should consider whether they want to offer an apol
ogy during the opening statement. (This issue is discussed in detail
in Chapter Five.) Apologies can establish a positive tone from the
outset. In some cases, however, parties may decide to hold the apol
ogy in reserve, offering it as a concession if necessary later in the pro
cess. Well-delivered apologies have caused plaintiffs to lower their
damage demands signiﬁcantly. In other cases, insincere or incom
plete apologies have inﬂamed plaintiffs and harmed the chances for
settlement. Parties should discuss these ideas thoroughly as part of
their preparation.
Clients should practice what they expect to say in the opening
statements. After hearing a dress rehearsal, the lawyer should offer
suggestions for improvement. Both parties should be clear on
which matters the client will cover and which the client will leave
for the lawyer. The opening statement is the only part of the pro
cess where the parties have complete control over what they will
do. Once the ADR moves beyond that point, they will have to react
to what happens as they go along.
Preparing the Client for Subsequent ADR Sessions
Inexperienced clients may expect their attorneys in ADR to be ag
gressive advocates on their behalf, arguing combatively against the
other side. This expectation comes from watching lawyers on tele
vision and in the movies arguing forcefully in open court in front of
a jury. Clients need to understand that the ADR process is different,
and it calls for a different style on the part of attorneys. If lawyers at-
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93
tack their opponents personally during ADR, as they might in court,
they are likely to damage the prospects of settlement. Clients should
recognize that their lawyers are behaving more cooperatively because this is required by the process. If the case goes to trial, the law
yers will become more aggressive at that point.
For their part, clients are well advised to avoid overt aggression
as well. Some clients may have a natural tendency to engage in vent
ing, where they describe with great emotion all of the injustices they
have experienced. Some believe this process will have a therapeu
tic value, allowing them to release their pent-up hostility and become psychologically ready to settle the case. However, many times,
the opposite occurs: after expressing their anger, clients ﬁnd they
have become even more upset.
If a client believes venting is necessary, it usually should be conﬁned to a private session with the neutral. When done in front of
the other side, venting can be counterproductive. The other side
generally responds with equal anger from its own perspective, and
the parties end up driving themselves further apart. If venting in
front of the other side is determined to be necessary, the lawyer
should notify opposing counsel in advance that it will be coming.
The opposing lawyer can tell the client what to expect, which may
avoid escalating the conﬂict.
It also is usually best to instruct clients not to react openly to
any settlement offers presented by the other side. Rather, clients
should wait for a break to discuss the matter with their attorneys
and formulate a joint plan of response. Otherwise, inexperienced
clients may tip their hand when a more effective reply could have
been developed by consulting with counsel.
Clients should be told that neutrals often challenge parties on
their positions in an attempt to encourage them to settle. The pro
cess where neutrals examine parties’ assessments of their likeli
hood of prevailing is called reality testing. Experienced parties
know that the neutral will do this to both sides. Inexperienced parties, however, sometimes become concerned that pointed ques
tioning by the neutral indicates the neutral is biased against them
or does not understand their case. They may react defensively, becoming angry or revealing information they had planned to keep
conﬁdential. Parties should be told to expect reality testing and
that they should treat it as a normal part of ADR.
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Lawyers should tell their clients that the ADR process often in
cludes long periods of waiting while the neutral is meeting privately
with the other side. Parties can use some of this time productively to
plan their strategy. Often, however, there will be signiﬁcant stretches
of waiting time where they must remain at the site of the ADR. Parties can be advised to bring reading material, a laptop computer, or
a cell phone to use this time productively.
When clients are sophisticated and experienced with ADR,
they may discuss other strategies. In these situations, lawyers and
clients may wish to coordinate their presentations. For example,
the client may be the primary speaker on the facts and the lawyer
may take the lead on the legal issues. Another negotiation strategy
is for one to be more aggressive and the other to be more concil
iatory. They should discuss such ideas in advance to ensure they
know what they will do once ADR begins.
Discussing the Case with the Neutral Before ADR Begins
A key difference between ADR and trial is that parties in ADR often
have detailed discussions with the neutral in advance. Judges are
generally restricted in this regard because they have large caseloads, limited time, and strict procedural rules they must follow. In
contrast, the parties usually pay the neutral in ADR, and thus they
are able to play a greater role in shaping the process. These con
versations can be very helpful for both the parties and the neutral.
Parties should discuss with the neutral how they would like the
process to operate. There is considerable ﬂexibility in ADR, and
parties should take advantage of this characteristic. Certain types of
cases are easier to settle with certain types of ADR. For example, if
parties work together well and believe the process should take place
entirely in joint session, they should express this to the neutral. Neu
trals generally want to please the parties who have hired them, so
they are usually responsive to requests like this, particularly if all
parties agree. Careful preparation and advance agreement on the
format for the proceedings will save time and avoid confusion.
Parties also should use these preliminary discussions to learn
more about the style and preferences of the neutral. Some neu
trals are more receptive to certain types of presentations, and this
may become clear during the conversation. It is advantageous for
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parties to understand how to present their case best. Information
learned during pre-ADR discussions about the background and
orientation of the neutral can be helpful once the process begins.
It also can be useful for parties to speak with the neutral pri
vately. Such ex parte contacts would be prohibited in a trial setting,
because they could inﬂuence the decision maker and deny the
other side the opportunity to know what was said and to respond.
Similarly, ex parte contacts can be improper in trial-like ADR pro
cesses, such as binding arbitration and early neutral evaluation.
However, they are common in mediation. Indeed, much of medi
ation itself takes place in private caucuses with the neutral, so there
is less concern with having private conversations beforehand.
Parties should exercise some care before having private conver
sations with the neutral. If the other side is inexperienced, they may
not understand that this is appropriate procedure and be taken aback
when they learn what has happened. Therefore, good practice is to
notify an inexperienced party before contacting the neutral. It can
be helpful to encourage that party to speak with the neutral as well,
because such communication by both sides in advance usually makes
the process run more smoothly.
During these conversations, parties should discuss the substance
of the case and the personalities of the participants. Parties may begin
by brieﬂy highlighting key points from their pre-ADR statement.
After that, they should give the neutral insight into why the case has
not settled. This will assist the neutral in planning how to handle the
ADR. For example, government counsel may believe the private law
yer is discouraging settlement in order to earn more attorney fees. A
neutral who learns about this in advance can look for it during the
ADR session and take steps to address it if it exists. As another exam
ple, a private lawyer may believe the government counsel is avoiding
settlement in order to obtain trial experience. The neutral may be
able to address this issue as well if told about it ahead of time.
Lawyers should tell the neutral about the personalities of the
clients if this is relevant to the settlement. For example, lawyers
with argumentative clients may want to alert neutrals of this beforehand, so they are not caught off guard. In some cases, lawyers
may believe their clients would beneﬁt from having an opportu
nity to vent and express emotional upset. Lawyers can suggest that
neutrals encourage this during an early private session.
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Chapter Five
Advocacy in Federal ADR
Advocacy in ADR is very different from advocacy in other settings.
Parties experienced with trial adjudication, for example, often have
difﬁculty making the transition to advocating effectively in ADR. Ac
customed to attacking their opponents in open court, they adopt a
similar aggressive style in ADR. Rather than helping to settle the
case, these approaches usually backﬁre: the party being attacked reacts by becoming defensive and even less likely to cooperate in a
resolution.
Participants should recognize that their goal in ADR is to per
suade rather than to defeat. Because both sides must agree to any set
tlement, they need to work together to ensure everyone is satisﬁed.
It is more effective for parties to see themselves as working side by
side to solve a common problem rather than as enemy combatants.
Nevertheless, the parties are involved in a dispute and by deﬁ
nition have adversarial interests. Although it is useful to take a col
laborative approach, parties should not lose sight of the need to
protect their individual interests.
This tension makes it vital for clients and their representatives
to be purposeful in ADR. Many participants arrive at an ADR ses
sion and simply react to whatever happens. It is a mistake for parties to sit passively and let the process happen to them. Instead, they
should remember that a result reached in ADR is just as ﬁnal as a
verdict delivered by a jury. Parties should be as careful and delib
erate in their actions as they would be in a trial. Proper advocacy requires that parties develop a strategy to advance their interests in
ADR and then implement it. In this chapter, “ADR” refers primarily
to mediation, which is used most commonly in the government, but
other processes will be identiﬁed by name when appropriate.1
96
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97
Initial Considerations
In planning how to advocate in ADR, parties should begin by con
sidering the special dynamics that are involved in cases with the gov
ernment. When private parties are plaintiffs suing the government,
for example, they sometimes feel as if they are single-handedly tak
ing on a giant, faceless bureaucracy. The litigation process with the
government can be depersonalizing and frustrating.
It is a good idea for government lawyers in ADR to be sensitive
to these concerns. Indeed, ADR is a uniquely useful process in this
regard, because it gives parties the opportunity to discuss their
issues in a face-to-face forum. Some government lawyers have been
effective by working to reduce the impression that the government
is ganging up on the private party. This approach can reduce the
defensiveness on the other side, which can increase the chances
for settlement. Lawyers who represent the government often ﬁnd
that treating private parties with respect in ADR pays dividends in
settling the case.
Private parties should pay attention to the special concerns of
government parties. Although the government certainly can bring
considerable resources to bear in large cases, most government
matters are litigated by a single attorney. In the typical case, they
are not facing the entire United States but only one lawyer, who
may have a large docket of cases to manage, with only limited resources to help manage them. Supervision may also be modest.
Many private parties would be less intimidated if they knew the ac
tual situation on the government side.
Parties must decide where they will conduct ADR. Government
parties often prefer to hold ADR in federal buildings. They are
often conveniently located downtown and have conference space
where the parties can meet. Parties know how to get there, the fa
cilities are free, and they are often comfortable.
Government parties sometimes suggest meeting in a federal
building for tactical reasons as well. These buildings, often large and
solemn, can convey the impression that the power of the whole fed
eral government is behind the case. However, this can backﬁre for
the government if the setting causes the plaintiff to feel defensive
and less willing to cooperate. For their part, private parties should
remember that the government must prove its point in court just
like any other party.
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Private parties sometimes suggest meeting in their ofﬁces. The
government may agree to this arrangement to make the private
client feel more at ease in the process. Meeting in the clients’ own
ofﬁces also may make it easier for them to obtain documents and
exhibits if questions about the case arise during the proceedings.
A compromise arrangement is to meet in the ofﬁces of the
neutral. This is territory that belongs to neither side and thus is
equally comfortable for both. However, some neutrals who are sole
practitioners may not have conference space available. In this case,
the parties may have to pay for the cost of rented outside facilities.
Seating arrangements can be relevant. The most common ar
rangement is for the neutral to be at the head of the table, with
parties on either side. This creates the traditional image of two op
posing parties with a neutral peacemaker in the middle. To coun
ter the impression of opposition, a few neutrals sit on one side of
the table and place parties next to each other on the other side.
However, this arrangement can be awkward because the parties are
facing across the table at the neutral and have to turn in order to
talk to each other. Some neutrals have built special three-sided ta
bles as yet another approach to this situation.
Where the parties sit at the table is another consideration. Many
lawyers prefer to sit between their client and the neutral. This way
they maintain more control over the interaction, because they are
closer to the neutral, where most of the interaction takes place.
Some neutrals like to talk to the parties directly and may prefer to
have the lawyers take the seats farthest away at the table. Parties
should decide whether they want the lawyer to take the lead role.
If so, they should feel free to express their preference. Because the
parties are paying the neutral (in most situations), the neutral will
generally cooperate with this request.
Opening Statements
ADR usually begins with opening statements from each party (after
the neutral has made introductory procedural remarks). Parties
have the opportunity to script and rehearse exactly what they will
say and how they will say it. They should make strategic decisions
about the opening statement carefully, because it often sets the
tone for everything that follows.
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Most neutrals believe that the opening statement can be a valu
able part of the process. It gives each side an opportunity to state
its case in the presence of the neutral and the other side. This can
be valuable psychologically to some clients, giving them their “day
in court.” It also gives the neutral a chance to observe the parties
interacting with each other. This can provide valuable insight into
the nature of the dispute.
A few neutrals choose not to have parties make opening state
ments. They note that parties often criticize each other and believe
this can start the process in a hostile manner. These neutrals pre
fer to meet with the parties privately and bring them together only
if things are proceeding smoothly.
Parties may have different preferences in certain types of cases.
If the two sides have an especially poor relationship with each other,
opening statements may be more damaging than helpful. Parties
should discuss their desires with the neutral. Neutrals generally
agree to follow the parties’ wishes regarding opening statements,
particularly if both sides agree.
By custom, plaintiffs usually make the ﬁrst opening statements.
This is generally a sensible approach, because they are the parties
who initiated the claim. However, if there is a special reason that the
defendants should begin, the parties should discuss this with the neu
tral in advance.
The Substance of the Opening Statement
Parties should present their case in the opening statement, setting
forth the nature of their claim and the evidence supporting it. After
the opening statement, the emphasis of the process can switch to a
discussion of possible settlement options rather than the facts that
gave rise to the dispute. Therefore, the opening statement is the
best opportunity for parties to present the reasons that they should
prevail if the case goes to trial.
Clients and lawyers should determine who will speak about what
topics and in what order. Typically, the lawyer will talk ﬁrst, provid
ing an introduction and setting forth the nature of the claim. Then
the lawyer will turn to the client to describe what happened from a
personal perspective. The length of the client’s comments will de
pend on the client’s comfort with speaking and effectiveness. Clients
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who are poised and well spoken may deliver the bulk of the open
ing statement. Clients who are more reticent or not experienced
with the process may prefer to leave most of the talking to the law
yer. When the client is ﬁnished, the lawyer may make closing remarks before turning the proceedings back over to the neutral.
Having clients participate in the process can bring important
beneﬁts. Plaintiffs who describe how they were harmed by the dis
pute can personalize the case and show how their damages are
real. Defendants can sometimes present more persuasive accounts
of their actions than their lawyers, who would have to speak about
matters in which they did not participate. To be sure, clients should
be well prepared by their attorneys before they participate in the
opening statement. With preparation, clients can change the dy
namics of the process by giving compelling personal statements.
It also can be valuable for clients to participate in the opening
statement because they are ultimately the parties who must decide
whether to settle the claim. When they participate in ADR directly,
they are more likely to buy into the process and work to resolve the
dispute. One of the virtues of ADR is that it allows both plaintiffs
and defendants to take an active role in resolving their problems
rather than having to turn over control to their representatives.2
Opening statements should include a description of the inter
ests the party wants satisﬁed in any settlement. Rather than focus
ing on positional demands (“We will not settle for a penny less than
$100,000!”), parties can be more effective by setting forth their un
derlying interests (“We need sufﬁcient money to ensure that the
plaintiff’s medical needs will be met for the future”). This approach
focuses the parties on the goals that both sides ultimately want to
reach rather than the positions they take as part of an adversarial
horse-trading process.
Parties also should describe what they will do if the case does
not settle. In doing this, some parties feel a tension between expressing their interests assertively and establishing a cooperative at
mosphere to encourage settlement. Parties want to show that they
are conﬁdent of their likelihood of success at trial while also indi
cating they would prefer to settle if possible. One way of handling
this situation is to preface comments about a future trial with a state
ment along the following lines: “In the interest of completeness, I
also should describe what we would show at trial if we cannot reach
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agreement today. We would prefer to settle the case if possible, so
that all parties can avoid the costs and aggravation of trial. However,
if necessary, we are fully prepared to litigate, and we would argue
the following. . . .”
Exhibits and visual aids can be powerful in opening statements.
Providing a copy of the contract at issue in the case, for example,
can be much more persuasive than just describing its terms. Peo
ple pay more attention to things they see as well as hear. However,
parties should not bring all the evidence they would use at a trial.
ADR is an alternative to litigation, so the focus is more on settling
the dispute than proving which side is liable.
Apologies
Some defendants have found it effective to offer an apology during
the opening statement. The goal of this approach is to encourage res
olution of the complaint rather than start a ﬁght about who should
win. A defendant who apologizes can disarm the plaintiff and allow
productive settlement talks to begin. Sometimes this can ultimately
advance the defendant’s interests more effectively than assailing the
plaintiff, which can escalate the conﬂict.3
Plaintiffs frequently assume that defendants do not appreciate
fully the harm done to them. They may believe this lack of understanding is the reason the defendants’ settlement offers are low. By
acknowledging in a genuinely empathetic manner the harm suf
fered by plaintiffs, defendants may garner goodwill and at the same
time defeat the assumption that their position did not contemplate
the full degree of plaintiffs’ damages.
Apologies should be carefully worded. If a party goes too far
and admits wrongdoing, the other side may believe victory is at
hand and raise its settlement demands. If a party does not go far
enough, delivering only a perfunctory statement, the other side
may be offended at its inadequacy.
A useful approach is to offer comments that express regret but
do not concede liability in the case. When considering the entire dis
pute, parties may ﬁnd there is something they genuinely wish had
happened differently. For example, some government parties have
made statements to plaintiffs such as the following: “Thanks for com
ing this morning. I know this is stressful. I can see how hard this has
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been for you and your family. No one should have to go through
what you have in this case.” When the government does not plan to
contest liability in the case, apologies can be even stronger. Some
plaintiffs have appreciated apologies greatly and even have reported
that they were the ﬁrst kind words anyone from the government said
in the dispute.
Apologies are not appropriate in every situation. Sometimes
plaintiffs are so upset that they will not believe an apology in any
case. Skepticism is often highest at the beginning of ADR, when
the parties are suspicious of each other. In these situations, it may
be advisable to avoid apologizing until the later stages of the pro
ceedings, if at all. Also, in some cases, the plaintiff will want an
apology as part of the terms of the settlement of the case. If so, it
may be advisable to wait and save the apology until later for tacti
cal reasons.
The Tone of the Opening Statement
Tone is very important in an opening statement. A good approach is
to be direct but not adversarial. Parties should establish from the beginning that they want their interests met in order to settle but that
they will be cooperative if possible. An opening should show that the
party is friendly but ﬁrm, collaborative but not a pushover.
Many inexperienced parties come on too strongly in the open
ing statement. For example, some government parties have started
along the following lines: “This case is about a greedy plaintiff who
is seeking millions of dollars for a nonexistent injury.” Some pri
vate parties have then responded, “The government’s opening
statement shows how it continues to be heartless and cruel.” These
types of openings are more appropriate for a trial, where a judge
or jury will make the ﬁnal decision.
In ADR, these kinds of statements usually hurt far more than
they help. Parties may feel that being aggressive in the opening will
show the other side that they mean business. Certainly this is the
model most often shown on television and in the movies. Sometimes it can be effective against a party who is easily intimidated.
Usually, however, inﬂammatory opening statements result in alien
ating people on the other side rather than persuading them. It is
important for parties to remember that they need the agreement
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of their opponents in order to resolve the dispute. Highly aggres
sive opening statements are likely to hurt more than they help.
It can be effective to focus attention on the opposing client when
delivering an opening statement. Ultimately, this is the person who
must be persuaded to agree to any settlement. In this sense, the op
posing client is closer to the role of the judge than the neutral is.
Parties commonly take the approach of directing their presentations
to the neutral, but this can be less effective. Even if they persuade
the neutral that their position is correct, this will not lead to settle
ment of the case unless the other client agrees.
Focusing on the opposing client also will assist parties in adopt
ing an appropriate tone. Parties who argue to the neutral often use
a more aggressive approach, as they would when arguing to a judge
or jury. Aiming the opening to the client will remind the party of
whom it has to persuade.
This approach should not be taken to an extreme, however. Parties should pay attention to the other participants in the ADR as
well. Neutrals are accustomed to playing a central role in ADR pro
ceedings, particularly at the beginning, and parties should respect
this by directing attention to them during the opening statement.
Opposing attorneys should be addressed as well because they may
become concerned if parties talk directly to their client instead of
to them.
If parties have aggressive arguments to make about the case, they
may wish to direct this portion of their opening statement to the
neutral rather than the other side. Doing so can help avoid escalat
ing the tensions between the parties. Another option is to refer to
contentious assertions only in broad outline and to say that they will
be developed further in court if necessary.
Despite parties’ best intentions, opening statements sometimes
break down and become hostile shouting matches. Good neutrals
will recognize when this is happening and will call for a break before
the meeting gets out of hand. If the neutral does not do so, the parties should feel free to request a break themselves. It can be more
difﬁcult to restore a positive atmosphere once an ADR session has
started off badly. A certain amount of conﬂict in the opening can be
ﬁne, and it can give the neutral a clue as to the dynamics between
the parties. If things become too heated, it is sometimes best to move
the parties into separate sessions.
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Advocacy in Separate Sessions
After the opening statement, neutrals generally meet with each
side individually in separate sessions. Because so much of ADR
takes place in private sessions with the neutral, advocacy during
this stage of the process is very important. Parties should remem
ber that they, not the neutral, will control how they resolve their
dispute. Nevertheless, neutrals can play an important role in the
process, and it is worthwhile to discuss how parties can work with
them most effectively.
General Considerations
A primary goal for parties in separate sessions is to ensure that the
neutral understands their interests completely and will work to ﬁnd
ways to meet these interests. Good neutrals know that settling a dis
pute requires that all parties get their most important objectives met.
No one will sign a settlement agreement otherwise. Parties therefore
must educate the neutrals on what they want from a settlement.
Parties should discuss their interests fully with the neutral. The
more the neutral understands all of the parties’ settlement needs,
the easier it will be to craft proposals to meet those needs. Parties
also should indicate which interests are required, which are desir
able, and which are optional. Some neutrals ask for rankings of
parties’ interests in this regard. Others ask parties to display their
interests in a pie chart, sizing each piece to show the relative im
portance of that interest.4
Once parties have expressed their interests, they should work
to generate options for settling the dispute. This stage of the pro
cess requires creativity, ﬂexibility, and patience. Parties should work
with the neutral to brainstorm as many creative options as possible
to resolve the matter. They should remain open-minded about the
process, because solutions to problems sometimes come from un
expected places. Patience is required; this process sometimes moves
slowly and haltingly.
Parties should be open with neutrals about interests and op
tions, but they should not feel they have to disclose everything
about their case. Sometimes parties believe the more cooperative
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nature of ADR means that they should confess the weaknesses in
their position. Parties may wish to do so, but it is by no means re
quired. They should make a conscious strategic decision about
what is most advantageous for their side. For example, if parties
believe damaging information about their case inevitably will come
out soon anyway, they may decide to disclose it to the other side
during the opening session. This can establish a cooperative at
mosphere and enhance their reputation as trustworthy. If parties
are unsure whether their opponents will discover the negative evi
dence, they may decide to disclose it in conﬁdence to the neutral
and request the neutral’s advice on how to handle the situation.
Finally, if parties decide there is little to be gained by disclosing the
information to anyone, they may decide not to raise it during ADR.
Of course, they also should ensure they follow appropriate legal
and ethical standards when making these decisions.
When the neutral is meeting with the other side, parties should
use this time effectively. If the neutral has given them questions to
think about, they should prepare answers to those questions. If not,
they should anticipate what the neutral will ask them during their
next meeting and determine how they will respond. It is useful to
work to stay one step ahead of the process throughout.
Parties should consider conﬁdentiality issues. Misunderstandings,
which do occur on this point, have been distressing to the parties.
Neutrals have two main ways of dealing with conﬁdentiality in pri
vate caucuses. These two approaches are very different, and parties
should be certain everyone understands which one is applicable.
Under the ﬁrst approach, neutrals treat everything said in private
caucuses as conﬁdential and will not reveal anything without ﬁrst ask
ing permission. Even under this approach, parties are well advised
to avoid confusion by underscoring with the neutral the conﬁden
tiality of any information that is especially sensitive.
With the second approach, neutrals feel free to share anything
said in private caucuses with the other side unless a party speciﬁ
cally asks for it to be kept conﬁdential. Good neutrals using this
method still make it a practice at the end of each private caucus to
ask the parties if they would like anything they have discussed to remain conﬁdential. If neutrals do not do this, parties should do so
themselves, telling the neutral what they want to remain private.
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Parties should remain vigilant on this issue. Over the course of a
long ADR proceeding, people sometimes forget to concentrate on
these matters, which can have negative results.
Using the Neutral Effectively
The presence of the neutral in the ADR process provides parties with
strategic options that do not exist in traditional negotiation. Parties
can take advantage of these opportunities in a number of ways.
For example, at the start of most private caucuses, the neutral will
have just completed a private caucus with the other side. The ﬁrst
things the neutral says after entering the room often provide useful
clues as to what was discussed in the session immediately before. For
example, sometimes parties expect the neutral to address a speciﬁc
point as soon as they return. If the neutral instead says nothing on
this point, this silence may provide information about what was said
in the private caucus with the other side.5 It may indicate, for exam
ple, that the other side reacted negatively to a certain settlement pro
posal. Inferences like this are not always reliable, however, so they
should be veriﬁed if possible. Nonetheless, they can be useful in de
termining what to do next.
Reactive Devaluation
Parties can use neutrals to convey settlement proposals in a way that
helps avoid resistance from the other side. Researchers use the term
reactive devaluation to describe how parties tend to devalue offers
made by the other side.6 This term describes the phenomenon that
occurs when parties hear their opponents make an offer and react
by devaluing it. For example, a plaintiff who comes to ADR willing to
settle a case for $50,000 may no longer be willing to do so if the de
fendant offers that amount in the opening session. Instead, the plaintiff is likely to respond by asking for more.
This effect was shown in an experiment conducted by the Jus
tice Department, where a group of attorneys all received the same
written factual scenario and the same proposed settlement offer.7
The group was divided into three subgroups, and each was told the
offer came from a different source. The attorneys who were told
that the settlement offer came from their opponents rated it as
least acceptable, those who were told it came from their own ex-
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pert rated it as most acceptable, and those who were told it came
from the neutral rated it in the middle. This result shows that at
torneys sometimes react more to the person making an offer than
to the substance of the offer itself.
If the neutral presents an offer without disclosing its source, the
other side is less likely to devalue it. They may believe the offer came
from the neutral or may not even pay attention to its source as long
as it is not identiﬁed as coming from an opposing party. There are
several ways a neutral could do this. One approach is for the neutral
simply to ask, “Would you be willing to take $50,000 if the other side
were to agree?” Another is to say, “If you are willing to take $50,000,
I believe I can get agreement from the other side.” Neither of these
statements discloses that the other side has already agreed to the
offer, and thus they may make it seem more acceptable.
Reality Testing
It also is useful during private caucuses for parties to persuade the
neutral that their side is more likely to prevail in court. Neutrals
often engage in reality testing, where they challenge the validity of
both sides’ positions in private caucuses in an attempt to persuade
them to settle. Parties should give the neutral as much information
as possible so that reality testing done with the other side will be
most effective. Neutrals do not know as much about the case as the
parties do, so parties should ensure they educate the neutrals fully
on the weaknesses of their opponents.
Parties may even decide to hold back some arguments during
their opening statement and instead provide them during private
sessions to the neutral to use with the other side. This idea builds
on the concept of reactive devaluation. If parties make arguments
to their opponents during the opening, the opponents are likely to
discredit and devalue them. If the neutral makes the same argu
ments, they may be taken more seriously.
In some cases, attorneys may want the neutral to conduct reality
testing with their own clients. When clients have an inﬂated view of
the worth of their case, they sometimes instruct their attorneys to
ask for an unreasonable amount in settlement. Part of attorneys’ jobs
in these cases is to let the clients know their demands are too high.
However, clients sometimes resist this information when it comes
from their own attorneys. This can be a form of reactive devaluation
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between individuals who are on the same side of the dispute. Neu
trals can sometimes be effective in bringing clients back down to
earth in these cases.
Asking the Neutral for Help
Parties should take advantage of neutrals’ expertise in settling
cases. When they do not know what to do, parties should feel free
to ask neutrals for advice. Neutrals who have handled hundreds of
ADR sessions often have ideas on how to proceed most effectively.
They also have the advantage of hearing from both sides in private
caucuses. Although neutrals will not directly reveal what the other
side said in a private session, they will have this information in
mind when they make a recommendation on what to do.
It also can be effective to ask the neutral to ﬁnd out speciﬁc information from the other side. Opposing parties may be more will
ing to respond to a request for information from the neutral. To be
sure, if the information is critical, they may ask the neutral to keep
their responses in conﬁdence. However, they may decide to discuss
the matter with the neutral without requiring conﬁdentiality, in
which case the neutral can report back on what was learned.
Handling an Assertive Neutral
Some neutrals can be assertive with parties in private caucuses, and
parties should understand how to respond to this. A ﬁrst step is to
listen to the neutral carefully. The neutral may have important information for the parties to know. For example, sometimes neutrals
express things emphatically when they are unable to provide com
plete information due to conﬁdentiality concerns. The other side
may have told them something in conﬁdence that affects the pro
ceedings. The neutral will not be able to disclose this information
directly but may endeavor to send the message in other ways.
After they have listened carefully to an assertive neutral, parties
should feel free to push back if they wish. If they disagree with the
neutral, they should say so and explain why. The neutral may just be
testing the parties to see how they will respond. Parties should indi
cate to the neutral that they feel strongly about their case. Neutrals
are human beings, and sometimes they will press a party harder if
the party appears weaker. A neutral’s job is to assist the parties in
reaching resolution, and if settlement looks easier to obtain by push
ing one party, some assertive neutrals will do so.
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Some neutrals prefer to speak directly to clients, minimizing the
role of the attorneys. In certain cases, neutrals have even asked to
speak privately with clients, with the lawyers out of the room entirely.
Parties should prepare for this situation and decide how they will re
spond. Sometimes working with the client directly is a useful ap
proach; the client, after all, is ultimately the party that will make the
decision on whether to settle the case. Neutrals can have good in
stincts about how to proceed in ADR, and it can be worthwhile to
trust a neutral who believes that working with the parties alone will
increase the likelihood of settling the case. This is a particularly via
ble option if the client is sophisticated and able to respond effec
tively to the neutral’s questions. When clients are less experienced
or less conﬁdent, however, they should feel free to decline such ap
proaches, telling the neutral they want to have their lawyers present.
Parties should not feel that they have to answer every question
that aggressive neutrals ask them. They may prefer to keep some
information to themselves, even if neutrals promise not to disclose
it to the other side. This can be tricky for lawyers who are partici
pating in court-sponsored ADR, particularly if ADR is conducted
by judicial ofﬁcers. Lawyers may ﬁnd it difﬁcult to avoid answering
questions from judges, especially judges before whom they appear
regularly on other cases. This can be a reason to avoid ADR con
ducted by judges and instead hire private neutrals. With private
neutrals, parties should feel free to resist answering questions when
they do not want to do so.
Parties also should call for breaks whenever they want. If cau
cuses start to get heated and clients want to discuss matters with
their attorneys, they should do so. Taking a break can give parties
a better perspective on how to proceed.
The overall point to remember here is that the neutral works
for the parties, not the other way around. Sometimes parties become intimidated and believe they must do whatever the neutral
wants. In contrast, experienced parties work to take an active role
in determining what happens to them in ADR.
Advocacy in Joint Sessions
When parties are in joint session with the other side, they should
remember that they are not in a trial where their goal is to per
suade a third party to decide in their favor. Rather, they are in a
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collaborative process where they must obtain the agreement of the
other side before settlement will be possible. Tactics in joint ses
sion therefore must be designed to motivate the other side to set
tle the dispute voluntarily. This is generally best accomplished by
appealing to their interests.
The most straightforward way to learn about the other side’s
interests is to listen carefully to what they say. One way to express
this point is the motto of the American Bar Association’s dispute
resolution section: “ When we listen, people talk.” Rather than
dominate the conversation in an attempt to overwhelm the other
side, it is often better to let them talk and to pay careful attention
to what they say. Litigators may ﬁnd it useful to think of a joint ses
sion more like a deposition than a cross examination. The goal of
a deposition is to get the other side to speak freely, in hopes that
something said will be useful at trial. Similarly, encouraging the
other side to talk in a joint session can result in learning informa
tion that will be useful for settlement.
Parties should listen speciﬁcally for the interests that are driv
ing the other side’s decision on whether to settle the dispute. By
learning what the other side needs, a party can determine whether
there are acceptable ways to meet these interests. Parties in ADR
ultimately ﬁnd that the best way to get their interests met is to meet
those of the other side as well.
It is effective for parties to show that they understand the other
side. When participants feel heard, they usually ﬁnd it easier to
hear their opponents. Sometimes they will not truly listen until
they feel they have been heard. Parties may ﬁnd it useful to explain
their understanding of what the other side wants. They need not
say they agree with these demands, only that they want to com
prehend them fully.
If the other side is speaking in terms of positions, it may be
worthwhile to ask questions to discover the interests that underlie
those positions. For example, if a plaintiff sets forth a positional
demand for $100,000 in order to settle a workplace discrimination
dispute, the government party should ask why the plaintiff chose
this number. If the plaintiff replies that is the amount necessary to
show that the government takes the complaint seriously, this can
provide helpful clues for how to settle the case. The government
may be able to meet this underlying interest by showing it takes the
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case seriously in other ways. Various options could include apolo
gizing, helping to locate a new job for the plaintiff, or providing
racial sensitivity training to others in the workplace. All of these so
lutions may be satisfactory to the plaintiff while allowing the gov
ernment to pay less money.
Parties also should use joint sessions to learn who the key deci
sion maker is on the other side. Private parties may notice that one
particular government representative seems to be calling the shots.
If so, they should address their comments to this person. Similarly,
the government can ﬁnd out who is the leader on the other side: the
client, the attorney, or perhaps the client’s spouse. This information
can be useful in determining how to approach settling the case.
Body language can provide useful clues as to the other side’s
interests in ADR. Parties may notice that their opponents lean in
during certain discussions and appear to be paying close attention,
behavior that may indicate these topics are of special interest. In
contrast, the other side may recoil in reaction to other points or
simply appear bored and uninterested. All of these reactions can
supply insights into how to proceed with the negotiation.
In addition to learning about the other side’s interests, parties
should ensure that they fully express their own. Although it is often
effective to start by understanding the other side in order to build
trust, parties also should make sure that the other side understands
them. If the other side does not know what a party wants in order to
settle, they will not be able to work on ways to accommodate these
interests. Thus, empathy must be balanced with assertiveness.8
Parties should explain thoroughly what they require in order
to settle the case. It can be useful to set forth the priorities of the
various interests. Parties can describe what they absolutely need,
what they want, and what they would like if possible. Once all in
terests for both sides are on the table, the parties can begin to work
on developing options to meet these interests.
Joint sessions sometimes become emotionally charged. Parties
to a dispute can have sharply antagonistic feelings toward each other,
which can become exacerbated when they spend long stretches of
time in the same room together during ADR. If parties ﬁnd that the
meeting is getting too heated, they should request a break. If a break
may not be sufﬁcient, parties should tell the neutral that they would
like to proceed in separate sessions.
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Requesting separate sessions also can be effective for tactical rea
sons. Sometimes in joint sessions, parties respond to offers from the
other side reﬂexively and negatively, and this reactive devaluation can
harm the chances for settlement. Parties may wish to discuss offers
privately with the neutral and then let the neutral present the offers
without disclosing where they came from. Parties also may wish to go
into separate sessions to discuss matters privately with the neutral.
Parties in federal administrative ADR should pay careful atten
tion to conﬁdentiality concerns in joint sessions. Under the Admin
istrative Dispute Resolution Act (which does not apply to federal
court ADR), statements that parties make in joint sessions with all
other parties present are ordinarily not conﬁdential (see also Chap
ter Eight). Thus, parties need to be aware that anything they say may
be revealed to outside individuals. To address this situation, parties
sometimes agree to provide for conﬁdentiality of joint sessions by
signing a contract. Even this approach, however, does not provide
for total conﬁdentiality. Outside parties still can ﬁle Freedom of Information Act requests for documents used in joint sessions and ask
questions in discovery about what was said. Therefore, parties should
be cautious about making admissions in joint sessions.
Breaking Impasse
Negotiations in ADR, like negotiations in general, sometimes get
stuck. Parties become set on demands that are far apart and do not
know how to proceed. There are a number of things to do in this
situation.
The ﬁrst step in an impasse is for the parties to return to an ex
ploration of their interests. Frequently, parties who reach deadlock
on positional demands are able to move forward by looking beneath the demands to the interests that underlie them. For exam
ple, when parties are unable to agree on how much money should
be paid in a lawsuit, they can make progress by searching for nonmonetary relief that will satisfy important interests of the plaintiff.
Perhaps a plaintiff has an interest in feeling vindicated and will ac
cept an apology from the defendant in exchange for lowering the
damages demand. In other cases, the plaintiff may have an inter
est in receiving a certain amount of money each year (perhaps for
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medical care) and the defendant can agree to a structured settle
ment that will meet this need while reducing the total cost of the
settlement in present value terms. Before giving up on ADR, parties should ensure they have thoroughly developed the interests
on both sides.
Changing the structure of the ADR session is another approach.
If parties have been meeting in separate caucuses, bringing everyone together in a joint session can be effective. The changed dy
namics of a joint session may lead to new ideas. Conversely, if ADR
has been proceeding in joint sessions, it can be worthwhile to split
parties into separate caucuses to see if that inspires fresh lines of
thinking.
Parties who do not know how to proceed should consider ask
ing the neutral for advice. Neutrals are paid to facilitate settlement
and usually welcome such questions. Experienced neutrals have
seen many impasse situations and can provide useful ideas. Also,
neutrals who have been leading ADR in private caucuses have the
beneﬁt of hearing both sides’ perspective on the dispute. Although
they will not be able to breach conﬁdentiality, their knowledge of
interests on both sides can allow them to come up with creative so
lutions that the parties might not be able to reach by themselves.
Another option is to take a lengthy recess. Often problems are
easier to solve after time has passed. With a fresh perspective, parties may develop solutions to disputes that had seemed intractable.
It can be worthwhile to stop an ADR session and reschedule another meeting in a week or even a month in these situations.
Changing the individuals who are participating in ADR is another
technique for overcoming an impasse. Bringing new representatives
to the bargaining table can introduce additional perspectives to the
negotiation. Different attorneys or different client representatives
may come up with ideas that the original participants missed.
Risk Analysis
Risk analysis (also discussed in Chapter Four) can be a useful tool
for parties who are at an impasse.9 In risk analysis (sometimes called
decision tree analysis), parties evaluate the case by examining their
chances of winning. For example, if the plaintiff has a 50 percent
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chance of prevailing in a lawsuit seeking $100,000, the expected
value of the case before trial is half of $100,000, or $50,000. Under
this analysis, the plaintiff should take any settlement offer of $50,000
or more.
More complicated analyses are also possible. For example, con
sider a defendant who has ﬁled a motion that would dismiss the case
if successful. If the defendant believes it has a 50 percent chance of
winning the motion and a 50 percent chance of winning the trial
(were the motion to fail), its overall chances of winning the case are
75 percent. If the damages at trial would be $100,000, the defendant
should accept any offer to pay $25,000 or less (a 75 percent discount
from the $100,000 total). Computers can easily calculate compli
cated examples.
Risk analyses that consider attorney fees can show parties how
they would beneﬁt from settling their case. Suppose that both parties agree that the chances of the plaintiff’s winning at trial are
roughly 50 percent. Risk analysis predicts that the plaintiff will win,
on average, $50,000, and the government defendant will pay, on av
erage, $50,000. Assume that the plaintiff would incur attorney fees
of $10,000 in order to take the case all the way through trial. While
government parties do not pay attorney fees as such, a trial does rep
resent a cost to the government: an attorney who works on a trial is
unable to work on other matters during that time. Also, the govern
ment must pay expenses such as deposition charges, travel costs, and
expert witness fees. Assume that the total of these costs also would
be $10,000. In this case, the expected recovery from the case for the
plaintiff is only $40,000 ($50,000 minus its fees), and the expected
cost of the case for the government is $60,000 ($50,000 plus its fees).
When confronted with these numbers, parties should recognize that
any settlement more than $40,000 but less than $60,000 will make
both sides better off because they will avoid the costs of trial.
Even if the parties do not agree on their exact chances of win
ning a trial, risk analysis can still be useful. Many times parties are
overly optimistic about their settlement position, and they ﬁnd
when they actually look at the numbers that their case is not as
strong as they thought it was. Thus, even defendants who do not
agree with plaintiffs’ estimate of the chances of winning the case
may still be persuaded to settle. They may ﬁnd that risk analysis,
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even using their own numbers, shows that the plaintiffs’ offer is
more reasonable than they thought. Also, risk analysis sometimes
can be useful in closing the gap between parties’ demands, even if
it does not completely eliminate the difference.
Evaluations and Proposals from the Neutral
If parties have tried these methods and still are unable to agree,
they may wish to ask the neutral to provide an evaluation of the
case.10 Parties should remember they are free to instruct the neu
tral on the standards to be used in making the evaluation. Evalu
ations can provide additional information to the parties that helps
them reach settlement in some situations.
Requesting an evaluation can be risky, however. If parties are dis
satisﬁed with the evaluation the neutral provides, they may wish they
had never requested it. Evaluations can profoundly change the parties’ negotiation posture for the rest of the case. Parties who have
evaluations come out against them can ﬁnd their opponents’ posi
tions harden, leaving them with no chance of obtaining the settle
ments they originally desired. Even if the evaluation favors a party,
this may be of relatively limited beneﬁt. The other side may discredit
the evaluation by claiming the neutral is biased or uninformed.
Furthermore, once neutrals deliver evaluations, their effective
ness for subsequent ADR sessions can be hampered. Parties may no
longer perceive them as independent advisers. Rather, parties tend
to look at them as stakeholders who want to see their evaluations
upheld. If an evaluation favors one side, the other side often feels
that the neutral is biased against them. For these reasons, it is best
to request an evaluation only at the end of an ADR process, when
an impasse appears inevitable without it.
Despite these disadvantages, there are occasions when an eval
uation is useful. Parties may want to request one when the sole issue
separating them is their assessment of what a judge would do with
the case. In this situation, the opinion of the neutral can serve as a
guideline as to how a court may rule. If the neutral’s evaluation is
between the parties’ original estimates, they may be able to agree
to compromise on this ﬁgure. Sometimes neutrals provide com
pelling reasons that persuade the parties to accept their evaluations.
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Evaluations from neutrals who have expertise in the subject
matter of the dispute and the respect of the parties are more ef
fective. Parties give deference to an evaluation in direct proportion
to how well they believe it is an accurate prediction of how a judge
or jury would rule in the case. Some parties pick former judges
when they expect they will want an evaluation, and others choose
neutrals who have extensive professional experience in the issues
involved in the case.
Another option is for parties to ask the neutral to create a pro
posal to settle the case. While an evaluation is simply an estimate
of the dollar value of the case, a proposal is a comprehensive set
tlement plan that can include nonmonetary relief. Neutrals are
often creative people, and they can develop ingenious settlement
ideas that the parties would not have come up with on their own.
One technique that can work well is for neutrals to deliver the
proposal to each side separately and to promise not to disclose how
either side reacted unless both sides agree to the proposal. Parties
are sometimes reluctant to agree to a neutral’s proposal because
they fear their bargaining position will be harmed if they agree and
the other side does not. They may fear that the neutral’s proposal
will be considered their own new position, while the other side will
not have made any concessions. This problem is avoided if the neu
tral agrees not to disclose either side’s reaction unless both sides
agree.
When considering both evaluations and proposals, parties should
pay careful attention to how the neutral seems to be reacting to the
case. If the neutral appears favorable to their side, parties should be
more willing to request an evaluation or proposal. Otherwise, they
should resist such suggestions by the other side.
Parties should ensure that the neutral fully understands their
case before giving an evaluation or proposal. Before an evaluation,
they should present all the arguments supporting their case to per
suade the neutral of their likelihood of success at trial. Before a
proposal, they should consider whether the neutral is likely to sug
gest a particular settlement provision that is unacceptable to them.
If so, they should make this clear immediately, because once a neu
tral makes a proposal, it gains momentum. Therefore, parties
should cut off objectionable ideas before the neutral formally sug
gests them.
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Working with Government Parties in ADR
In order to work with the government effectively, private parties
should understand how the government handles disputes. At most
agencies, the general counsel’s ofﬁce takes the lead in resolving legal
disputes. A lawyer from that ofﬁce will represent the agency in ad
ministrative proceedings, consulting as necessary with ofﬁcials in the
component of the agency where the dispute arose to learn about
the matter and determine how to handle it.
When a case is in litigation before a federal court, the Justice De
partment takes over representation of the United States. For most
cases, a local assistant U.S. Attorney will have ﬁrst-level responsibil
ity for a matter. For certain types of disputes, including many civil
rights, environment, tax, and antitrust matters, a lawyer from the Jus
tice Department in Washington, D.C., will represent the govern
ment. These lawyers may work on a cocounsel basis with an assistant
U.S. Attorney in the region where the litigation takes place.
When the Justice Department represents a federal agency in
litigation, a lawyer from that agency usually participates. The Jus
tice Department lawyer takes the lead but consults with the agency
lawyer during the case. The agency lawyer may be responsible for
answering discovery requests from the private party and may par
ticipate in ADR sessions.
Monetary awards in government cases generally come from the
judgment fund, a government-wide pool of money created by Con
gress to pay for settlements and litigated judgments in civil cases.
The Justice Department oversees this fund and has the authority
to determine what payments are made from it. Agency lawyers may
make recommendations as to the settlement amount, but the ﬁnal
decision usually rests with the Justice Department lawyer.
In some cases, monetary awards come from other sources. For
example, when the government settles a contract case, money may
initially come from the judgment fund, but the agency may ulti
mately be required to reimburse the fund from its own resources.
Agencies are responsible for paying any awards against them in em
ployment discrimination cases.11 The U.S. Postal Service pays for
settlements out of its own funds. In these matters, the lawyer rep
resenting the agency can have a greater inﬂuence in determining
how much money will be paid in a settlement.
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Agency lawyers also will play a critical role in determining nonmonetary relief that involves the agency directly. One example is
employment discrimination suits. If the plaintiff seeks a transfer to
another ofﬁce, a promotion, or similar relief, the agency must agree
to such a remedy. Similarly, in contract suits, the agency must ap
prove nonmonetary relief, such as debarment from future contracts.
Sometimes private parties believe a case is not settling because
the government attorney is unreasonably refusing to compromise,
and they wish to talk to the attorney’s supervisor. When deciding
how to proceed in this regard, private parties can beneﬁt from an
understanding of the hierarchical structure of the government.
Generally, the lawyer who represents the government in ADR is
the attorney with primary responsibility for the matter, and this law
yer will handle most of the day-to-day aspects of the dispute. This
person (sometimes called a line lawyer) reports to an intermediate
supervisor (called a deputy general counsel, assistant branch di
rector, or similar title), who may supervise about a dozen attorneys.
A section chief or branch director supervises several deputies. Man
agement above this level is handled by political appointees at most
agencies. A subcabinet ofﬁcial, appointed by the president and conﬁrmed by the Senate, oversees an agency division, and a cabinet sec
retary runs the agency. Before settling cases administratively for
more than a certain amount of money, even an agency secretary
must obtain the approval of the Justice Department.
At the Justice Department, assistant U.S. Attorneys report to a
civil chief, who supervises all civil litigation in each local ofﬁce. The
civil chief is supervised by the U.S. Attorney for that region, who is
presidentially appointed and Senate conﬁrmed. The U.S. Attorney
controls most litigation in the local district but works with ofﬁcials in
Washington on certain matters. Assistant attorneys general in Wash
ington have nationwide jurisdiction over certain litigation in the antitrust, civil, civil rights, environmental, and tax areas. These ofﬁcials
report to the associate attorney general (the number three ofﬁcial
in the Justice Department), the deputy attorney general (the num
ber two ofﬁcial), and ultimately the attorney general. On the most
sensitive national matters, White House staff and the president may
make ﬁnal decisions.
Going over the head of the line government lawyer to any of
these ofﬁcials can be a risky endeavor. Line lawyers may not appreci-
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ate it when private parties challenge their positions with their supervisors. This practice questions their authority and the validity of their
decisions. Line lawyers usually control most of what happens in the
case, so alienating them can make future dealings more difﬁcult.
Also, supervisors do not overrule line lawyers in most cases.
They recognize that the line lawyers are handling matters on a dayto-day basis and know them best. Supervisors have to oversee a
large number of cases and do not want to have to become inti
mately involved in them. They tend to support their lawyers and
avoid second-guessing them whenever possible.
Nonetheless, in some situations, private parties may wish to dis
cuss a matter with a higher-level ofﬁcial. Sometimes line lawyers
are junior attorneys who appear to be making mistakes through inexperience. Other times, private parties may have a personality
conﬂict with the government counsel that is interfering with pro
ductive communication. Some issues may be so important that pri
vate parties need to press the matter with a supervisor.
Before speaking with a higher-level ofﬁcial, it is usually good
practice to mention this plan to the line lawyer. In this way, the line
lawyer, who will most likely ﬁnd out about the contact in any case,
is less likely to feel blind-sided. Private parties can say that they be
lieve they need to seek review from a supervisor, brieﬂy explain the
reason, and say they wanted to make sure the line lawyer knew
about it in advance. These conversations should be handled deli
cately and respectfully. One disadvantage of this approach is that
the line lawyers may then brief their supervisors ahead of time,
which may make the private parties’ appeals less effective. However, supervisors will almost always discuss matters with line lawyers
before making a decision, so this risk is usually worth taking.
Private parties also must decide what ofﬁcial to contact. Gen
erally the ﬁrst-level supervisor is the best starting point. This person will have some knowledge of the case and will be in a position
to change a line lawyer’s position most readily. Higher-level ofﬁ
cials have the authority to intervene, of course, but the further up
the hierarchy they are, the less likely they are to want to interfere
with a lower-level decision. Indeed, some private parties who write
letters to the attorney general to complain about the actions of Jus
tice Department line lawyers would be surprised to ﬁnd out that
their letters are often referred to the line lawyers themselves for
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response. The reply letters may be sent over higher-level ofﬁcials’
signatures but are often drafted by the line lawyers.
There can be different considerations in high-proﬁle, politi
cally charged matters. In these cases, political appointees in an
agency are likely to care more about the issues and to become per
sonally involved. They may already be playing a signiﬁcant role behind the scenes and may be willing to talk with private parties.
Even in these cases, it can be worthwhile to include the line law
yers, or at least notify them of the contact. Otherwise, they may resent the interference, and they will be playing a signiﬁcant role in
the future of the case.
In some matters, private parties have contacted their U.S. sen
ator or representative. In most cases, this is no more effective than
writing to the attorney general. The legislator will respond by writ
ing a letter to the agency, and the line lawyer at the agency will write
back that the agency does not comment on active cases. Only in the
most important matters would a legislator personally contact an of
ﬁcial at an agency, and even then the legislative branch of the gov
ernment has limited authority over the day-to-day operations of the
executive branch. Ultimately, Congress can hold oversight hearings
and affect an agency’s budget, but such considerations are unlikely
to come into play in the vast majority of cases.
Negotiation Tactics in ADR
Because ADR is a negotiation process, many tactical considerations
are similar to those involved in general, unassisted negotiation.
This section discusses these ideas and notes some special factors
that come into play when the government participates in ADR.
Opening Offers
An initial question for both government and private parties in ADR
is whether they should make the ﬁrst settlement offer or wait for the
other side to do so. Some parties believe that the plaintiff should
make the opening offer, because the plaintiff is the party who ﬁled
the claim. Sometimes the plaintiff will respond that it effectively
made an initial offer in the written complaint that started the dis
pute and that it is up to the defendant to reply to that offer. Some
private parties argue that the government should open ﬁrst because
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of its unique nature as a public party. If negotiation efforts have preceded ADR, this may affect which party makes the opening offer
once ADR begins.
There are advantages and disadvantages to making the ﬁrst
offer. Parties who open ﬁrst can set the tone for the negotiation.
The initial offer can affect everything that follows through a phe
nomenon called anchoring.12 Parties tend to anchor their expecta
tions on the ﬁrst number presented in ADR, giving it inordinate
weight in further negotiations. Opening ﬁrst allows a party to set
the initial anchor.
Presenting an offer after hearing the other side’s opening,
however, allows a party to gain information before having to dis
close its position. This avoids the risk of opening too high, which
may offend the other side, or too low, which may concede more
than was necessary. In some cases, the other side may open with a
more favorable number than anticipated, which can allow a party
to adjust its response accordingly. Opening second also allows a
party to choose a response that establishes an advantageous midpoint between the two offers. Parties in negotiation have a ten
dency to split the difference between each side’s opening ﬁgures.
Another factor in this decision is the relative experience of the
parties. ADR participants who have dealt frequently with similar
cases are less likely to be affected by anchoring, because they al
ready have a sense of what the case is worth. Conversely, parties
with limited experience are more likely to place undeserved weight
on an opening offer by a party perceived to have more expertise.
The government often has an advantage in this regard. Because the government has so many cases, its attorneys are usually
specialized in narrow areas. It is not unusual for an entire group
of lawyers to work on enforcing a single statute, for example. These
lawyers will have detailed knowledge of how similar cases have been
settled and what judges and juries have decided in comparable trials.
In a typical case, private parties will not have such background.
Fortunately, most government attorneys recognize they have a
duty to treat private parties fairly because they are public servants.
With the privilege of representing the government comes the re
sponsibility to do so justly. However, different government lawyers
place different emphasis on this. Some believe their duty to repre
sent the government zealously means they should seek results that,
while fundamentally fair, are more advantageous to the government.
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Therefore, private parties should proceed carefully and not assume
that every government attorney will act the same way.
The amount to offer is another consideration. Research shows
that higher opening offers generally result in more money for plaintiffs at the end of ADR.13 Conversely, defendants who open with
lower amounts usually end up paying less. This phenomenon is re
lated to anchoring; parties’ opening offers set expectations for both
sides at the beginning of ADR. However, if parties open so high (or
low) as to lose credibility, they can harm their negotiating position
when they inevitably have to make a major concession.
Parties also should pay attention to legitimate criteria for their
opening offers. When they support their offers with objective stan
dards, they tend to do better in negotiation. Such criteria include
out-of-pocket expenses, veriﬁable future expected costs, and prior
court awards for similar cases. Appealing to independent standards
adds legitimacy to parties’ claims. This approach is particularly ap
propriate in government cases, where negotiation optimally will be
a search for a fair result, not a battle to see which side will dominate.
The Middle Phase of Negotiations
After both sides make their opening offers, the next tactical deci
sions involve how to move to a mutually acceptable settlement.
This process is often something of a dance as both sides make concessions and their positions approach each other. The pattern of
these concessions can involve important strategic decisions.
Some government attorneys prefer not to engage in a series of
concessions at all. They believe that as representatives of the gov
ernment, they should make a single, fair settlement offer and not
negotiate after that. These lawyers believe there is no place for
horse trading in government negotiation.
When private parties face government parties who follow this phi
losophy, their best option may be to work to argue that the govern
ment representatives made an incorrect evaluation of the case at the
outset and should adjust it accordingly. In order for this approach to
work, they may need to provide new evidence or arguments that the
government did not consider when making its initial offer.
Most government parties engage in some give-and-take in nego
tiation because making just a single offer can be a poor negotiating
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strategy. Parties enter ADR with the expectation that both sides will
be willing to cooperate with each other and compromise in order to
reach a settlement. If the government refuses to budge, it is often per
ceived as not participating in the process in good faith. The dynamics
of the ADR process can make it difﬁcult to refuse to compromise at
least a little. Furthermore, many parties do not believe the govern
ment when it says it cannot move. Therefore, a government party that
picks an opening offer and allows no room for compromise may have
great difﬁculty getting the other side to agree to it.
One tactical issue that parties should consider is the message
they send with the pattern of their concessions. For example, con
sider a party that wishes to reach an agreement in ADR where it
will pay $100,000 to settle a dispute. If the party opens with $50,000
and then offers $90,000 as its next move, the other side is likely to
see this $40,000 jump as a signal that the party has considerably
more money to offer in negotiation. If the party then presents
$100,000 as its bottom line, the other side may not believe it and
may push for more money.
In contrast, imagine that the party opens with $40,000 and of
fers $60,000 as its next move. Its next offer is $70,000, followed by
$75,000. Note that each of these concessions is half as large as the
one before it. This sends a signal that the party is running out of
room and will not offer much more. If the next offer is $77,500,
for example, the party will send the signal that its ﬁnal offer will be
around $80,000. With this approach, if the party ultimately agrees
to pay $100,000, the other side is more likely to settle and may even
feel it “won” the negotiation.14
This is an example of the general rule in negotiation that parties should make concessions slowly and sparingly.15 Parties tend to
devalue concessions that the other side makes quickly, thinking
they must not be worth much because they were made so easily.
The party that makes the ﬁrst major concession may ﬁnd itself at
a disadvantage.
Bottom Lines in Negotiation
During ADR, discussion sometimes turns to the delicate topic of
parties’ bottom lines, meaning the ﬁnal offers beyond which they
will not move. Parties should be careful how they proceed in this
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area. Because this issue is complicated, many neutrals will not ask
parties for their bottom lines until late in ADR, if at all. Some neu
trals report that they never ask for bottom lines because they do
not believe what parties tell them in any case. Neutrals also can
face an awkward situation if they learn conﬁdentially that there is
room to settle between the two parties’ bottom lines, as it is unclear
what settlement amount is appropriate in this case.
If neutrals do ask for a bottom line, this can put the parties in
a difﬁcult position. They may not want to seem uncooperative by
refusing to answer the neutrals’ question. However, if they do reveal a bottom line, even in conﬁdence, neutrals may end up pres
suring them toward this number. In order to settle the case, neutrals
have a tendency to push the party whose bottom line is more ﬂex
ible than the other side’s.
Another problem with giving a bottom line is that parties’ eval
uation of their settlement posture may change during the process.
Parties often learn more about the case during ADR. If they commit
to a bottom-line ﬁgure before they have complete information, they
may put themselves at a disadvantage. If they have to change their
bottom line, they may lose credibility. If they refuse to do so, they
are stuck with the number they chose prematurely.
Therefore, it is often advisable not to answer questions about
bottom lines directly, particularly early in an ADR session. Parties
can reply that they have not settled on a deﬁnitive bottom line,
pending further developments in ADR. Or they can be even more
direct and respond that they do not believe disclosing their bot
tom line is tactically wise at this point. If they do want to give an
answer, they may decide to leave themselves room to move by pro
viding a ﬁgure with a caveat, such as, “This is the number we are
looking at right now.”
Parties should still consider what they will require to settle the
case, however. As discussed in Chapter Four on preparation, parties
should approximate their best alternative to a negotiated agreement
before ADR begins and then reassess their alternatives throughout
the ADR process. The thing to avoid is locking into a speciﬁc bottom
line and revealing it to the neutral (or the other party) early in ADR.
At the ﬁnal stages of ADR, it may become necessary for parties
to disclose some information about their bottom line in order to
know whether the negotiation process is worth continuing. If ADR
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looks as if it is about to break down, parties may wish to discuss
their bottom line privately with the neutral to determine if the neu
tral sees a way to resolve the case. Such discussions should be con
ducted carefully. If a party does not exercise caution, it may ﬁnd
that the other side takes its bottom line as just another offer from
which it is expected to negotiate in the future.
Because of the dynamics of the negotiation process, participants
(and neutrals) often consider what a party refers to as its “bottom
line” really to be its “almost-bottom line.” Most people expect that
there will be a little more movement at the very end, especially if the
parties are reasonably close to an agreement. For example, if one side
reveals its bottom line as $50,000 and the other side says $55,000,
there will be strong pressure on both sides to settle for $52,500. If a
party picked $50,000 as an absolute, walkaway number, it might ﬁnd
itself in an awkward position at this point. Therefore, parties may wish
to leave a little room to move when discussing bottom lines.
One approach to this situation is for parties to discuss with the
neutral their “public” bottom line and their “private” bottom line.
The neutral is authorized to disclose the public ﬁgure to the other
side, and this ﬁgure is chosen to leave a little breathing room if
necessary. At the same time, the neutral also knows the party’s true,
private bottom line, which can be useful to determine whether set
tlement will eventually be possible.
Advocacy at the End of ADR
After parties have participated in ADR for a period of time, they gen
erally will be able to recognize if settlement is possible. If it is not,
they should leave open the possibility of future sessions. Many cases
that initially appeared impossible to settle eventually do get resolved.
Parties may even wish to set a speciﬁc time to resume ADR.
If the parties do reach agreement, they usually should formal
ize it in some fashion right away. If they wait until they return to
their ofﬁce the following day, they may ﬁnd that the deal falls apart.
The phenomenon of settlers’ remorse can set in as parties back out
of a deal to which they had previously agreed. Some parties wish
to allow for this possibility and purposely provide for a one-day
cooling-off period before signing the agreement. They believe that
any agreement the parties do not still want after twenty-four hours
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FEDERAL DISPUTE RESOLUTION
is not a good one. However, when most parties reach a settlement,
they want to resolve the case and move on. In this case, they should
consider putting something in writing before they leave.
The simplest form of settlement in ADR is an agreement in
principle. This approach involves drafting a document that in
cludes a broad outline of the main features of the agreement. Parties may wish to bring a laptop computer to aid with this drafting.
They can bring possible provisions with them on the computer and
use them to draft others during the ADR process as well as to print
out the ﬁnal document. Both parties should sign the agreement in
principle before leaving the ADR session. They can expand it into
a ﬁnal settlement agreement later.
Settlement provisions in some government cases must follow spe
cial rules. For example, attorney fee awards in tort claims are capped
at 20 percent of the amount of an administrative settlement and 25
percent of a federal court settlement.16 Some settlements in workplace cases, such as those that involve reemployment beneﬁts, may
need to be provided to appropriate union representatives for review.
Other workplace provisions should be discussed with the Ofﬁce of
Personnel Management to ensure they are valid. In contracting mat
ters, parties will need to ensure they have followed relevant provisions
in the Federal Acquisition Regulation. (Chapter Six on workplace
and Chapter Seven on contracting ADR discuss these issues in more
depth.)
Parties also should include provisions on how to resolve any fu
ture disputes under the agreement. Such provisions often call for
the use of ADR. They may require that a party claiming a breach
of the agreement must use ADR in an attempt to resolve the dis
pute before going to court. This type of provision should describe
what ADR process will be used, how the neutral will be hired, and
how the cost will be paid. Parties often agree to retain the neutral
who negotiated the original agreement to resolve any disputes that
arise under it in the future.
Parties often ﬁnd it to be a tactical advantage to volunteer to
draft the ﬁnal agreement themselves. This involves additional work,
but it can be worthwhile. The party that drafts the actual settlement
contract has initial control over the terms it includes. The other
side can certainly object to language it does not like, but this is
often more difﬁcult than writing the language in the desired way
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ADVOCACY IN FEDERAL ADR
127
in the ﬁrst place. One disadvantage of being the drafter, however,
is that courts traditionally interpret ambiguous language against
the party that drafted the agreement.
Once both sides have signed the settlement agreement, it becomes enforceable as a contract. If one party fails to follow the
agreement, the other side can ﬁle a court action for breach of contract. If a case has been ﬁled in federal court, the parties can sub
mit their settlement agreement to the judge for entry as a consent
order. In this case, the judge will review the terms of the settlement
to ensure they are proper. Judges generally give some degree of
deference to agreements negotiated by the government. Once the
judge signs the agreement, it becomes an order of the court. In
this case, a party that claims the other side has breached the agree
ment may be able to obtain relief more quickly and may have more
enforcement options available.
The Effectiveness of Case Evaluation and
Mediation in Michigan Circuit Courts
Report to the State Court Administrative Office,
Michigan Supreme Court
October 31, 2011
Submitted by Teresa G. Campbell and Sharon L. Pizzuti
Courtland Consulting
1500 Watertower Place, Suite 200
East Lansing, MI 48823
(517) 908-3943
www.courtlandconsulting.com
Case Evaluation and Mediation Effectiveness Study: Final Report
Table of Contents
Table of Contents ............................................................................................................................ 2
Executive Summary ........................................................................................................................ 4
1. Introduction ................................................................................................................................ 9
1.1 Process Definitions ............................................................................................................... 9
1.2 The Use of Case Evaluation and Mediation ....................................................................... 10
1.3 Comparison with Other States ............................................................................................ 11
1.4 Purpose and Scope of the Current Study ............................................................................ 12
2. Methods and Data Sources....................................................................................................... 13
2.1 Statewide Survey of Attorneys ........................................................................................... 13
2.2 Focus Groups with Attorneys ............................................................................................. 14
2.3 Statewide Survey of Circuit Court Judges .......................................................................... 14
2.4 Review of Case Files from Six Circuit Courts.................................................................... 15
2.5 Interview/Survey of Court Administrators in the Six Courts ............................................. 17
2.6 Case Evaluation and Mediation Study Advisory Committee ............................................. 17
3. Findings..................................................................................................................................... 19
3.1
Use of Case Evaluation and Mediation for Torts and Other Civil Cases in Michigan . 19
3.1.1 Extent to which Case Evaluation and Mediation Are Used ...................................... 19
3.1.2 Trends in the Use of Case Evaluation and Mediation............................................... 19
3.2
Overview of Cases Examined in the Current Study ..................................................... 20
3.2.1 Use of Case Evaluation and Mediation..................................................................... 20
3.2.2 Disposition of Torts and Other Civil Cases .............................................................. 21
3.3
The Effect of Case Evaluation and Mediation on Rates of Settlement/Consent
Judgment ...................................................................................................................... 22
3.3.1 Acceptance of Case Evaluation Panel Award ........................................................... 23
3.3.2 Settlement at or Following the Mediation Event ...................................................... 24
3.4
The Effect of Case Evaluation and Mediation on Time to Disposition ........................ 25
3.4.1 Length of Time before and after Case Evaluation/Mediation is Conducted ............ 26
3.4.2 The Effect of Adjournments on Time to Disposition ............................................... 27
3.4.3 The Use of Case Evaluation and Mediation Relative to Discovery.......................... 28
3.4.4 Sequence When Both Case Evaluation and Mediation Are Used in a Case ............. 29
3.4.5 Impact of Case Evaluation and Mediation on Court Workload and Costs ............... 29
3.5
Relative Costs of Case Evaluation and Mediation for Litigants ................................... 30
3.6
Disposition of Cases Following an Order for Case Evaluation and/or Mediation ....... 31
3.6.1 When Case Evaluation is the First or Only Type of ADR Ordered.......................... 31
3.6.2 When Mediation is the First or Only Type of ADR Ordered ................................... 32
3.7
Effectiveness of Case Evaluation and Mediation for Torts .......................................... 33
3.7.1 Case Dispositions for Torts ....................................................................................... 34
3.7.2 ADR Usage and Case Dispositions for Three Types of Torts .................................. 35
3.7.3 Time to Disposition for Torts ................................................................................... 36
3.8
Effectiveness of Case Evaluation and Mediation for Non-Tort Civil Cases ................ 37
3.8.1 Case Dispositions for Non-Tort Civil Cases ............................................................. 37
3.8.2 ADR Usage and Case Dispositions for Three Types of Non-Tort Cases ................. 38
3.8.3 Time to Disposition for Non-Tort Civil Cases ......................................................... 40
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Case Evaluation and Mediation Effectiveness Study: Final Report
3.9
Comparisons on the Use of Case Evaluation and Mediation for Torts and Other NonTort Civil Cases ............................................................................................................ 41
3.10 Perspectives on Case Evaluation .................................................................................. 42
3.10.1
Panels and Awards ................................................................................................ 42
3.10.2
Non-unanimous Awards ....................................................................................... 44
3.10.3
Use of Sanctions ................................................................................................... 44
3.10.4
Important Outcomes of Case Evaluation .............................................................. 45
3.10.5
Overall Opinion about Case Evaluation ............................................................... 47
3.11 Perspectives on Mediation ............................................................................................ 49
3.11.1
Perceived Quality of Mediators ............................................................................ 49
3.11.2
Frequency of Objections to Mediation ................................................................. 49
3.11.3
Important Outcomes of Mediation ........................................................................ 50
3.11.4
Overall Opinion About Mediation ........................................................................ 52
3.12 Perceived Pros and Cons of Case Evaluation and Mediation ....................................... 53
3.12.1
Attorneys’ Perspective .......................................................................................... 53
3.12.2
Litigants’ Perspective............................................................................................ 55
3.12.3
Judges’ Perspective ............................................................................................... 55
3.12.4
Court Administrators’ Perspective ........................................................................ 56
4. Conclusions and Recommendations ......................................................................................... 57
4.1 Conclusions ......................................................................................................................... 57
4.2 Recommendations ............................................................................................................... 57
Appendix A: Historical Background of Case Evaluation and Mediation in Michigan ................ 61
Appendix B: Survey of Other States ............................................................................................. 65
Appendix C: Results of Statewide Survey of Attorneys ............................................................... 69
Appendix D: Findings from Attorney Focus Groups ................................................................... 83
Appendix E: Summary of Results from Statewide Survey of Circuit Court Judges .................... 89
Appendix F: Data Extraction Tool................................................................................................ 99
Appendix G: Court Administrator Interview Questions ............................................................. 104
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Case Evaluation and Mediation Effectiveness Study: Final Report
Executive Summary
Study Purpose and Methods
Michigan’s circuit courts currently employ two primary means of alternative dispute resolution
(ADR)—case evaluation and mediation—to resolve civil claims involving money damages and
reduce the need for trials in many of these cases. As part of its deliberation of a number of
proposed court rule amendments to MCR.2.403 (Case Evaluation) and MCR 2.411 (Mediation),
the Michigan Supreme Court directed the State Court Administrative Office (SCAO) to conduct
a study of the efficacy of case evaluation. In September 2010, the SCAO contracted with
Courtland Consulting (Courtland) to evaluate the comparative effectiveness of non-domestic
civil case resolution in Michigan’s circuit courts. Because many courts also order mediation in
civil actions, the SCAO directed Courtland to include an assessment of mediation practices in the
study.
The focus of this study was on the use of case evaluation and mediation in civil cases seeking
awards of more than $25,000—which puts them under the jurisdiction of the circuit courts.
Courtland worked closely and collaboratively with the SCAO’s Office of Dispute Resolution to
determine the scope of the study and to ensure that it incorporated multiple data sources and
perspectives regarding the use of case evaluation and mediation in such cases.
The SCAO and Courtland collaborated to design the current evaluation study, which utilized
several research methods and data sources to assess the process and outcomes of civil cases
(including torts and other civil cases) handled by the following categories of ADR:
•
•
•
•
Case evaluation only
Mediation only
Case evaluation and mediation
Neither
The study used multiple methods of data collection to obtain as complete a picture as possible of
the effectiveness of case evaluation and mediation in Michigan circuit courts’ civil cases.
Quantitative and qualitative data were obtained from several sources, including:
•
•
•
•
•
Statewide web-based survey of attorneys (3,096 respondents)
Focus groups with 47 attorneys in several locations throughout the state
Statewide web-based survey of circuit court judges (44 respondents)
Case file review at six circuit courts (data from 396 cases)
Interview/survey of the court administrators at those six circuit courts
Major Findings
Based on analysis of the multiple data sources used in this study, a large number of results were
obtained (see Chapter 3: Findings). Among the many results, a list of 33 major findings was
developed:
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Case Evaluation and Mediation Effectiveness Study: Final Report
1. Michigan circuit courts are using case evaluation and mediation—the two types of alternative
dispute resolution (ADR) examined in this study—to dispose most tort claims. Case
evaluation is statutorily required by MCR 2.403 for tort claims, but mediation is not.
Although not required to do so by statute, the courts are also using case evaluation and
mediation to help dispose most of the non-tort civil cases filed in Michigan.
2. While case evaluation is currently widely used in Michigan, some courts are moving away
from case evaluation toward a greater use of mediation. In addition, judges have observed an
increasing willingness by attorneys to participate in mediation.
3. The use of one or both of these ADR processes greatly increased the percentage of cases in
which a settlement or consent judgment was achieved. The effect was particularly strong for
cases that used only mediation. Increasing the percentage of cases disposed through
settlement/consent judgment effectively reduced the percentage of cases disposed through
other means, such as dismissal/default, summary disposition, or court verdict.
4. The case evaluation award amount was accepted in 22% of the cases examined in this study.
Very few awards (2%) were accepted within 28 days.
5. Where mediation was held, nearly half of the cases (47%) were settled “at the table.”
Ultimately 72% of cases that went to mediation were disposed through a settlement or
consent judgment and without later using case evaluation or going to trial.
6. The use of case evaluation—whether alone or in combination with mediation—significantly
increased the length of time a case was open. Using mediation alone had no significant effect
on time to disposition compared to cases that used neither of these ADR processes.
7. Mediation was faster than case evaluation for disposing cases because it was implemented
sooner and because cases closed more quickly following mediation.
8. Rescheduling a case evaluation panel hearing one time did not significantly increase the time
needed to dispose a case, but multiple adjournments increased time to disposition
significantly.
9. Most judges and attorneys agreed that case evaluation is most effective if it occurs after
discovery. For mediation, many judges and attorneys saw the value of using this form of
ADR during discovery as well. Relatively few in each group thought that either case
evaluation or mediation was effective when used prior to discovery.
10. Using mediation to resolve civil cases generally reduces costs to the court. The impact of
case evaluation on court costs is less clear.
11. The study found little evidence that case evaluation either reduces or increases costs
substantially for litigants in civil cases.
12. Although mediation initially is a more expensive option for litigants, the study found
evidence that it can ultimately reduce their overall costs.
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Case Evaluation and Mediation Effectiveness Study: Final Report
13. The use of one or both of the ADR processes tended to increase the percentage of tort cases
in which a settlement or consent judgment was achieved. The effect was particularly strong
for cases that used only mediation.
14. For tort claims, the use of mediation significantly reduces the number of days a case is open
when compared to cases that do not use any ADR process. On the other hand, using case
evaluation significantly increases the length of time a case is open.
15. For non-tort civil cases, the use of one or both of the ADR processes significantly increased
the percentage of cases in which a settlement or consent judgment was achieved. The effect
was strongest for cases that used only mediation.
16. For non-tort civil cases, the use of only mediation did not reduce the average number of days
a case was open when compared to cases that did not use either ADR process. On the other
hand, using case evaluation significantly increased the average length of time a case was
open.
17. Case evaluation, which under MCR 2.403 is required to be ordered for torts, was widely used
for these cases (72%). In contrast, less than half of the non-tort cases (45%) used case
evaluation even though it was ordered for most of these cases.
18. Although mediation was ordered to be used in over a third of both the tort and non-tort cases,
it was held significantly more often for torts (38%) than non-torts (27%).
19. The higher use of case evaluation and mediation in the tort cases probably accounts for the
significantly higher rate of cases disposed through settlement/consent judgment for torts
(69%) than non-tort cases (56%).
20. Limited available data suggests that a panel usually arrived at an award that was less than the
amount of relief sought by the plaintiff; however, if the panel award was not accepted, the
plaintiff had about an equal chance of receiving either more or less than the award amount.
21. Judges assigned high ratings to the quality of case evaluators, while attorneys expressed more
mixed views of the panels’ expertise.
22. Judges and attorneys considered the primary purpose of case evaluation to be arriving at a
number the parties can accept rather than providing a fair valuation.
23. According to the attorney survey results, case evaluation is not often achieving its intended
outcomes.
24. While circuit court judges in Michigan generally have a high opinion of case evaluation as a
means to resolve civil cases, attorneys are less convinced of its effectiveness.
25. Judges were much more likely to order case evaluation when it is not mandated than
attorneys would be to use case evaluation if it were not court ordered.
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Case Evaluation and Mediation Effectiveness Study: Final Report
26. Circuit court judges indicated very high ratings for the quality of mediators available in their
jurisdiction.
27. According to attorney survey results, mediation frequently achieves its intended outcomes.
28. Judges and attorneys both give high marks to mediation as a means for resolving civil cases.
29. Mediation more often produces the key outcomes that attorneys seek when using an ADR
process than does case evaluation.
30. Mediation was seen by attorneys to have several advantages over case evaluation, including
having the participants present and having more time with the case.
31. According to attorneys, litigants often feel frustrated by case evaluation because they don’t
get heard and don’t know how the panel determined the award amount.
32. Circuit court judges gave higher ratings to mediation than to case evaluation and expressed a
willingness to order mediation in place of or prior to case evaluation if it is shown to be more
effective. However, there was also support for the continued use of case evaluation.
33. Court administrators in the six circuit courts studied expressed mixed views of case
evaluation and mediation but strong support for flexibility in the use of ADR.
Conclusions and Recommendations
This study found evidence of the effectiveness of both case evaluation and mediation. However,
mediation appears to be more effective than case evaluation in disposing cases more quickly and
achieving settlements. Mediation (unlike case evaluation) was also considered to reduce costs for
both the court and the litigants. Judges and attorneys expressed a more favorable view of
mediation, but there was support for continuing case evaluation, particularly among judges.
Flexibility regarding the method and timing of ADR was deemed important.
The evaluators developed several recommendations, based on the findings of the study. They
include:
1. Given the evidence that mediation is generally more effective and preferred over case
evaluation, Michigan circuit courts should be encouraged to make mediation available and not
require case evaluation for case types for which it is not required by statute.
2. Michigan circuit courts should continue to offer both forms of ADR (case evaluation and
mediation) but provide more flexibility in choosing the most suitable method and timing for the
specific case.
3. Several suggested improvements to the case evaluation process are offered:
• The penalty for late submission of the summary should be increased to discourage late
submissions and allow more time for panel members to review the material.
• A reasonable page limit should be imposed for the summary and attachments.
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Case Evaluation and Mediation Effectiveness Study: Final Report
•
•
•
•
•
Circuit courts should ensure that specialty panels are made available and that attorneys
are aware of the options for specialty panels and paying for additional time with the
panel.
Panels should be required to share how they arrived at the award amount.
The Michigan Supreme Court or SCAO should clarify the 28-day rule to ensure that all
circuit courts and attorneys have the same understanding.
The Michigan Supreme Court or SCAO should issue guidelines for case evaluators to
ensure that panels clearly understand their role and what is expected of them.
ADR clerks should obtain litigators’ feedback about the case evaluators in order to
eliminate the ones who are not considered competent, prepared or fair.
4. Several suggested improvements to the mediation process are offered:
• Balance the general preference that mediation be voluntary with the need for some ADR
to be mandatory for most cases.
• Give parties a say in the selection of mediators.
• Allow cases to opt out if the size of the claim is too small or if there is no chance of
settling.
• Offering case evaluation as an alternative to mediation if the parties object to mediation.
• Make sure the right people are at the mediation table—those with authority to settle—
including the use of a show cause order if a party attends mediation without the necessary
authority.
• Strengthen the confidentiality rule in mediation to be certain that one can’t disclose the
numbers that are discussed in negotiations.
• ADR clerks should get feedback about mediators in order to eliminate those who are not
considered effective.
5. Courts could benefit from some guidance from SCAO regarding the maintenance of ADR
records and the confidentiality of such information.
6. Whatever changes are made to either case evaluation or mediation or to the approach to ADR
in Michigan’s circuit courts, these changes should be clearly explained and communicated to
court staff, attorneys and the public.
7. It is recommended that SCAO reach out to circuit courts throughout the state to discuss with
them the implications of the present study and any resulting changes that are being considered.
8. Follow-up research will be helpful to study the impact of any changes in the use of case
evaluation and mediation in Michigan.
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Case Evaluation and Mediation Effectiveness Study: Final Report
1. Introduction
Michigan’s circuit courts currently employ two primary means of alternative dispute resolution
(ADR)—case evaluation and mediation—to resolve civil claims involving money damages and
reduce the need for trials in many of these cases. As part of its deliberation of a number of
proposed court rule amendments to MCR.2.403 (Case Evaluation) and MCR 2.411 (Mediation),
the Michigan Supreme Court directed the State Court Administrative Office (SCAO) to conduct
a study of the efficacy of case evaluation. In September 2010, the SCAO contracted with
Courtland Consulting (Courtland) to evaluate the comparative effectiveness of non-domestic
civil case resolution in Michigan’s circuit courts. Because many courts also order mediation in
civil actions, the SCAO directed Courtland to include an assessment of mediation practices in the
study.
The focus of the study was on the use of case evaluation and mediation in civil cases seeking
awards of more than $25,000—which puts them under the jurisdiction of the circuit courts.
Courtland worked closely and collaboratively with the SCAO’s Office of Dispute Resolution to
determine the scope of the study and to ensure that it incorporated multiple data sources and
perspectives regarding the use of case evaluation and mediation in such cases.
1.1 Process Definitions
Case evaluation is a process through which a panel of three attorneys, appointed by a court and
not involved in the dispute, hears issues specified by the parties and then renders a monetary
evaluation of the case. The administration of the process is finely detailed by court rule, which
includes provisions for supplying briefs to panelists, timing of various events, payment of fees,
conduct of the hearing, and the effect of accepting and rejecting awards. Penalties may be
attached for not accepting the award if the rejecting party does not improve upon a trial verdict
by 10 percent over the award, and the other party(ies) accepted the award. With the exception of
the case evaluation award, which is sealed for a period of time, the court rules do not specifically
address the confidentiality of the case evaluation process.
MCL 600.4901-600.4969 mandates only referral of tort and medical malpractice cases to this
process. MCR 2.403(A)(1) expands the potential scope of case types to “any civil action in
which the relief sought is primarily money damages or division of property.” Courts vary
considerably in their use of this process, from referring virtually all general civil cases to
referring none, except upon request of the parties.
Additional information regarding the evolution of the case evaluation court rule can be found in
Appendix A.
Mediation is defined by court rule as “a process in which a neutral third party facilitates
communication between parties, assists in identifying issues, and helps explore solutions to
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Case Evaluation and Mediation Effectiveness Study: Final Report
promote a mutually acceptable settlement. A mediator has no authoritative decision-making
power.” 1
Judges may order any civil case to mediation “at any time.” 2 Unlike case evaluation, the
administration of the process, including requirements for briefs, style of mediation (e.g., face-toface or caucus style, and facilitative or evaluative) is left to the parties and the mediator to
determine. Notably, again unlike case evaluation where panelists are selected by the court, in
mediation, parties are afforded an opportunity to select their own mediator. Only if parties do
not select their own mediator does the court appoint one from a roster of persons who have met
the training and experiential requirements. With some exceptions, outlined in MCR 2.412, the
mediation process is confidential.
Additional information regarding mediation, and a comparison of differences between case
evaluation and mediation, can be found in Appendix A.
1.2 The Use of Case Evaluation and Mediation
Case evaluation and mediation can be used in combination as well as separately. Circuit courts
may include both processes in the scheduling order or determine that a second process is needed
if the first does not result in a settlement. There is variation among courts in the sequence of
these processes, with many ordering case evaluation first but some ordering mediation first.
The following diagram (Figure 1-1) illustrates the possible routes that cases can follow, the
decision points along the way involving case evaluation and/or mediation, and the various points
at which cases can be disposed prior to trial. Cases ordered to case evaluation first may settle
prior to case evaluation or be resolved by the parties accepting the case evaluation panel’s award.
If the award is not accepted by both parties, the case may be ordered to mediation. Some cases
ordered to mediation will settle prior to mediation being held. If not ordered to mediation, the
parties may voluntarily choose to participate in mediation. If mediation occurs (either voluntarily
or by court order), the parties may reach an agreement at the mediation table or settle later.
Those cases that are not settled or otherwise disposed will proceed toward trial.
1
2
MCR 2.411(A)(2)
MCR 2.410(A)(1); MCR 2.411(C)(1)
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Case Evaluation and Mediation Effectiveness Study: Final Report
Civil Case Filed,
Seeking Award of
More than
$25,000
End
End
Yes
Ordered to
CE?
Yes
Settled/
Dismissed
Prior to
CE?
Yes
No
Accept
Panel’s
Award?
Case Evaluation
Is Conducted
No
No
Ordered to
MED?
No
Yes
Parties Opt
for MED?
No
Settled/
Dismissed
Prior to
Trial?
Case Ordered
to Trial
No
Case Disposed
by Trial
Yes
Yes
End
Settled/
Dismissed
Prior to
MED?
No
Mediation
Is Conducted
Yes
Mutual
Agreement
Reached?
Yes
End
No
End
Figure 1-1 Use of Case Evaluation and Mediation in Case Disposition
1.3 Comparison with Other States
A review by the SCAO of the literature on state court systems indicated that no state other than
Michigan has statutorily mandated case evaluation for tort claims and medical malpractice
claims. Michigan’s case evaluation process appears to have no direct counterpart elsewhere.
The most similar ADR process is non-binding arbitration, which appears in the statutes and court
rules of at least 17 states, the District of Columbia, and federal district courts. Practices vary
across states on several dimensions: statewide or local, mandatory or voluntary, jurisdictional
amounts, types of cases included, and the application of sanctions. No state appears to have as
sweeping a sanction-based ADR process as Michigan’s case evaluation, which includes a wide
range of case types and a limitless award amount.
The SCAO’s summary of state court arbitration programs can be found in Appendix B. It
provides additional information about states’ programs and provides links to the relevant statutes
or court rules. The summary points out that evaluative studies of such programs are sparse and it
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Case Evaluation and Mediation Effectiveness Study: Final Report
is difficult to generalize from other programs that are not comparable to Michigan’s case
evaluation.
1.4 Purpose and Scope of the Current Study
This study was designed to evaluate the effectiveness of case evaluation and/or mediation in torts
and other civil cases where the relief sought is over $25,000. Although only torts are required by
statute to have case evaluation, many other case types are being ordered to case evaluation as
well. The SCAO was also aware of a growing use of mediation in civil cases, sometimes in
combination with case evaluation and sometimes without case evaluation. At least one circuit
court was in the process of discontinuing the use of case evaluation and was using mediation
alone at the time of this study.
The SCAO and Courtland collaborated to design the current evaluation study, which utilized
several research methods and data sources to assess the process and outcomes of civil cases
handled by the following categories of ADR:
•
•
•
•
Case evaluation only
Mediation only
Case evaluation and mediation
Neither
The central evaluation questions guiding the study included:
•
•
•
•
•
Do case evaluation and/or mediation reduce disposition times?
Do case evaluation and/or mediation increase the likelihood that cases will be
disposed through a settlement or consent judgment?
Do case evaluation and/or mediation reduce litigation costs for parties or courts?
What is the impact of these ADR processes on the courts?
How satisfied are attorneys and judges with these processes?
Additional research questions were addressed as the available data allowed, with further analyses
conducted where appropriate. Multiple data sources were used, including:
•
•
•
•
•
Statewide web-based survey of attorneys
Focus groups with attorneys in several locations throughout the state
Statewide web-based survey of circuit court judges
Case file review at six circuit courts
Interview/survey of the court administrators at those six circuit courts
The various data sources were well integrated and comparable questions were used with different
audiences in order to allow comparisons between respondent categories. The timing of the data
collection also enabled Courtland to use the responses from the survey of attorneys to help
develop the focus group questions and then to use the responses from attorneys to develop the
questions for the survey of judges. A full description of the data sources is provided in Chapter 2:
Methods and Data Sources.
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2. Methods and Data Sources
The study used multiple methods of data collection to obtain as complete a picture as possible of
the effectiveness of case evaluation and mediation in Michigan circuit courts’ civil cases
(including torts and other civil cases). Quantitative and qualitative data were obtained from
several sources, which are described in this chapter.
2.1 Statewide Survey of Attorneys
An online survey of attorneys was conducted by the SCAO from early January to mid-February
2011. The SCAO sent the link to members of the Michigan State Bar Association and sought the
participation of attorneys who litigate general civil cases and who have experience with case
evaluation and/or mediation in Michigan circuit courts. Responses were anonymous. The survey
included a series of questions about case evaluation and mediation and also asked if the
respondent would be willing to participate in a focus group.
Surveys were completed by 3,096 attorneys from all areas of the state; 66% had most of their
case evaluation or mediation experience in the southeast region (where most of the state’s cases
are filed). The following graphic shows their geographic distribution.
Upper Peninsula
2%
N. Lower Peninsula
5%
Mid-Michigan
7%
Western
8%
Southwest
5%
Eastern
7%
Southeast
66%
Figure 2-1. Attorney Survey Respondents by Region
Courtland was responsible for analyzing the survey data. Assistance with the content analysis of
responses to open-ended questions was provided by the SCAO. Results from the attorney survey
are provided in Appendix C (along with the survey questions) and incorporated into the study
findings that are presented in Chapter 3: Findings.
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2.2 Focus Groups with Attorneys
Six focus groups with attorneys were conducted by Courtland to enable the evaluators to obtain a
fuller understanding of some of the results from the attorney survey and to ask follow-up
questions. The focus group discussions also provided attorneys the opportunity to share various
perspectives on the relative value of case evaluation and mediation. The six locations were
selected to be as convenient as possible for attorneys from various areas of the state.
Attorneys who completed the online survey, indicated a willingness to participate in a focus
group to discuss case evaluation and/or mediation, and provided contact information were
invited to participate in a focus group. Due to the large number of eligible attorneys in the
southeast region, a random sample of 50 percent of that group was selected to receive invitations.
The SCAO issued invitations via e-mail to 366 attorneys in early April 2011 and provided them
with the locations and dates for the six focus groups to allow them to select the one that would be
most convenient for them.
Acceptances were limited to a maximum of 15-20 participants per focus group, in an effort to
obtain an optimum number of 8-12 participants per focus group. All focus groups were
conducted during the first week of May 2011.
A total of 47 attorneys attended the focus groups. The following topics were covered: selected
survey results regarding case evaluation; relative merits of case evaluation and mediation; the
cost of both processes; litigants’ point of view regarding both processes; and suggestions for
improvements to case evaluation, mediation, and other ADR processes. The combined findings
from the six attorney focus groups can be found in Appendix D.
2.3 Statewide Survey of Circuit Court Judges
After completing the attorney focus groups, Courtland developed a statewide online survey of
Michigan circuit court judges to obtain their perspectives and opinions about case evaluation and
mediation. The SCAO provided feedback regarding the survey questions and secured the
cooperation of six current or former judges to pilot-test the survey. Their suggestions were
incorporated into the final version of the survey that was launched on June 23, 2011.
The SCAO sent a memo to judges from all circuit courts inviting those who adjudicate nondomestic civil cases to complete the survey and providing them the URL for Courtland’s online
survey. To accommodate holiday schedules, the survey deadline was extended to July 15 and
SCAO sent out a notice and a reminder. Survey responses were anonymous. A total of 44
completed surveys were received. In one court, the court administrator indicated that the survey
was submitted on behalf of all their judges, so the number of judges participating in the survey is
greater than the number of completed surveys received.
The survey questions, along with the results, can be found in Appendix E.
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2.4 Review of Case Files from Six Circuit Courts
In 2011, Courtland researchers visited six circuit courts and reviewed the files of more than 400
civil cases that were disposed in 2010. The specific circuit courts were selected for participation
in the study with the goal of obtaining an appropriate mix of courts of varying sizes, location,
and different approaches to the use of case evaluation and mediation. The six participating courts
were:
•
•
•
•
•
•
Berrien County (Circuit 02 in SCAO region 2)
Grand Traverse County (Circuit 13 (Grand Traverse only) in SCAO region 4)
Isabella County (Circuit 21 in SCAO region 3)
Oakland County (Circuit 06 in SCAO region 1)
St. Clair County (Circuit 31 in SCAO region 1)
Wayne County (Circuit 03 in SCAO region 1)
Based on the information provided to Courtland by the court administrators, ADR clerks and
other court staff who assisted the researchers during the site visits, the following descriptions of
their case evaluation and mediation processes are offered:
Berrien. During the timeframe of cases in the present study, the scheduling orders
required a joint settlement plan to be completed by a certain date and included an agreed
upon or preferred method of ADR to be taken into consideration when determining which
ADR process to order. Berrien has changed its ADR approach in the past year. Currently,
the judge does an initial review of the case and mediation is ordered first. If there is no
settlement three weeks before the trial, then case evaluation is ordered.
Grand Traverse. For the cases in our study (disposed in 2010) both case evaluation and
mediation were used (either separately or in combination) with mediation the most
common process. The scheduling order included a date by which mediation should be
completed. The plaintiff and defendant were required to complete a pre-trial statement.
Grand Traverse is no longer ordering case evaluation—only mediation, as of November
2010. All cases are now ordered to mediation via the civil scheduling conference order.
The parties/attorneys confer and select a mediator or mediation service within 12 days of
the scheduling order. If they do not notify the ADR clerk of their selection within the 14
days allowed, the ADR clerk will randomly select a mediator and advise the
parties/attorneys.
Isabella. Case evaluation is scheduled at the end of discovery. Mediation (called
“facilitation”) is only conducted if the parties request it.
Oakland. This court issues computer-generated scheduling orders for civil cases 67-75
days after the filing of the complaint. All “N” (tort) and “C” (contract) cases are ordered
into case evaluation. Cases that reject an evaluation award at or under $25,000 are
ordered into mediation. Throughout the life of a case, the court also encourages
parties/attorneys to utilize ADR tools through the use of discovery masters for motions
and by ratifying requests to refer cases to mediation and arbitration.
A pilot program of civil early intervention conferences (EIC) began in 2010. It consists of
parties and their attorneys meeting with a voluntary attorney facilitator to discuss the
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issues in and progress of selected cases. They also investigate whether ADR is
appropriate for the case and what the most effective and efficient ADR process would be.
A small number of the cases included in this study had evidence of participation in EIC.
Oakland’s case management process is currently under internal review resulting from
budgetary staffing changes; it is anticipated that the EIC process will be reinstated.
St. Clair. This court orders or recommends all civil cases to ADR, which is not
scheduled until after discovery. Case evaluation is generally first. Mediation is conducted
if the case is not settled by case evaluation.
Wayne. The court mandates case evaluation for all cases involving a request for a
monetary award. Case evaluation occurs after the close of discovery. The scheduling
order allows a month for case evaluation to occur. A settlement conference is scheduled
42 days after case evaluation if the case has not settled. Mediation is used only upon
agreement of the parties or by order of a judge in an individual case.
Courtland, with input and feedback from the SCAO, developed a data extraction tool to gather
relevant and available information from selected case files. The tool was pilot-tested with 15
cases in one court (Oakland). Based on the pilot-test, adjustments were made before it was used
for case file reviews in all six courts. The data extraction tool can be found in Appendix F. It
facilitated data collection regarding the scheduling order, case evaluation dates and outcomes,
mediation dates and outcomes, trial dates and outcomes, disposition code and closure date, as
well as other ADR-related information. These data were entered into Courtland’s online database
for analysis.
The SCAO contacted the court administrators and obtained their cooperation in providing
Courtland with a stratified sample of cases (by case type and ADR category) that were disposed
during 2010. Generally the registers of action (ROAs) were provided to Courtland for a larger
number of cases than needed so the Courtland team could identify the cases eligible for detailed
file review for their site visits in 2011. The objective was to obtain sufficient numbers of torts
and other civil cases, as well as sufficient numbers of cases receiving the different variations of
these two ADR processes: case evaluation, mediation, both, or neither. A minimum target was
established to support the statistical analyses to be conducted: 300 eligible cases overall and at
least 50 in each of the four ADR categories.
Using the data extraction tool, detailed information was collected from a total of 396 cases. Of
these cases, 181 (46%) were torts (type “N” cases, which are civil damage suits); 215 cases
(54%) were other civil cases. The latter included both type “C” cases (contracts and other civil
matters) and “P” cases (less common types of proceedings). The following table shows the
number of useable cases obtained from each of the six courts and the ADR categories of those
cases for the purpose of this study.
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Table 2-1
Cases and ADR Categories by Court
ADR Process Conducted
CE Only
Mediation
Only
Both
Neither
Total
Berrien
27
10
2
25
64 (16%)
Grand Traverse
5
36
10
9
60 (15%)
Isabella
21
0
0
25
46 (12%)
Oakland
28
8
58
14
108 (27%)
St. Clair
37
0
2
15
54 (14%)
Wayne
38
1
0
25
64 (16%)
Total
156
55
72
113
396 (100%)
Court
2.5 Interview/Survey of Court Administrators in the Six Courts
A set of interview questions for court administrators was developed by Courtland, with guidance
provided by the SCAO. The purpose was to obtain a better understanding of how each of the six
courts uses case evaluation and mediation and to solicit the court administrator’s opinion about
how well those processes work. The interview questions located in Appendix G were e-mailed to
the court administrator after the initial conference call with the SCAO and Courtland, prior to the
site visit. The court administrator was given the option of being interviewed by telephone, in
person during the site visit, or to answer the questions and e-mail or fax the responses to
Courtland. All six court administrators chose to provide their responses in written form. Their
responses have been incorporated into the descriptions above and into the study findings in
Chapter 3: Findings.
2.6 Case Evaluation and Mediation Study Advisory Committee
In addition to the data sources described above, Courtland also obtained valuable feedback from
the Case Evaluation and Mediation Study Advisory Committee that was convened by SCAO. A
meeting held in Lansing on June 30, 2011 provided Courtland the opportunity to present the draft
preliminary findings from this study and facilitate discussion with the committee members. The
advisory committee offered some valuable suggestions regarding interpretation of results and
additional analyses that could be conducted.
The SCAO met with this same advisory committee prior to Courtland’s engagement to develop
the methodology and scope of the project. That meeting was held on June 28, 2010. The
following individuals are listed on the SCAO roster as members of the advisory committee:
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Case Evaluation and Mediation Study
Advisory Committee
Mr. Timothy Casey
Collins, Einhorn, Farrell, &
Ulanoff PC
Southfield
Ms. Victoria Courterier
46th Circuit Trial Court
Gaylord
Mr. Bernard Dempsey
Wayne Mediation Center
Dearborn
Mr. Jeffrey Donahue
White, Schneider, Young, &
Chiodini, PC
Okemos
Mr. Clifford Flood
State Bar of Michigan
Lansing
Honorable Michelle Friedman
Appel
45B District Court
Oak Park
Honorable Nanci Grant
6th Circuit Court
Pontiac
Dr. Larry Hembroff
Office for Survey Research - MSU
East Lansing
Honorable Paula G. Humphries
36th District Court
Detroit
Ms. Laura Hutzel
State Court Administrative Office
Lansing
Mr. Jim Inloes
State Court Administrative Office
Lansing
Mr. Jason Shinn
Lipson, Neilson, Cole, Seltzer, &
Garin PC
Bloomfield Hills
Honorable Jeanne Stempien
3rd Circuit Court - Civil Division
Detroit
Honorable Lisa Sullivan
Clinton County Probate Court
Saint Johns
Ms. Lisa Timmons
Mediation Tribunal Association
Detroit
Ms. Dani Liblang
Liblang & Associates, PC
Birmingham
Honorable Pamela L. Lightvoet
9th Circuit Court
Kalamazoo
Mr. James Vlasic
Bodman LLP
Troy
Mr. Thomas Waun
Waun & Parillo PLLC
Grand Blanc
Mr. Sheldon Miller
Law Offices of Sheldon L. Miller
Farmington Hills
Mr. Bob Wright
Miller, Canfield, Paddock, &
Stone PLC
Grand Rapids
Ms. Elaine Harding
Hom, Killeen, Seifer,Arene, &
Hoehn
Detroit
Honorable Pamela Harwood
Law Offices of Pamela R.
Harwood PLLC
Troy
Mr. Kevin Oeffner
6th Circuit Court
Pontiac
Ms. Bonnie Sawusch
Halpert, Weston, Wuori, &
Sawusch PC
Kalamazoo
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Case Evaluation and Mediation Effectiveness Study: Final Report
3. Findings
This chapter presents the findings from the case file review and incorporates results from the
other data sources to address the evaluation questions in this study. Complete results from the
statewide survey of attorneys can be found in Appendix C. A summary of the attorney focus
groups can be found in Appendix D. The complete results from the statewide survey of circuit
court judges can be found in Appendix E.
Note: The major findings of the study are presented throughout this chapter in bold.
3.1 Use of Case Evaluation and Mediation for Torts and Other Civil
Cases in Michigan
3.1.1 Extent to which Case Evaluation and Mediation Are Used
1. Michigan circuit courts are using case evaluation and mediation—the two types of
alternative dispute resolution (ADR) examined in this study—to dispose most tort
claims. Case evaluation is statutorily required by MCR 2.403 for tort claims, but
mediation is not. Although not required to do so by statute, the courts are also using
case evaluation and mediation to help dispose most of the non-tort civil cases filed in
Michigan.
In the statewide judicial survey, judges reported ordering or referring 90% of tort claims into
case evaluation under MCR 2.403. Mediation is also widely used under MCR 2.411, but less
frequently than case evaluation: 36% of torts are ordered or referred to mediation.
The judges reported ordering or referring 70% of non-tort civil cases to case evaluation and 30%
of them to mediation.
3.1.2 Trends in the Use of Case Evaluation and Mediation
2. While case evaluation is currently widely used in Michigan, some courts are moving
away from case evaluation toward a greater use of mediation. In addition, judges have
observed an increasing willingness by attorneys to participate in mediation.
Attorneys who participated in the focus groups indicated considerable variation in the use of case
evaluation and mediation from court to court, with some offering flexibility regarding the
specific ADR process and others showing little or no flexibility. The Early Intervention
Conference (EIC) ADR method that was piloted in the Oakland County circuit court was viewed
as a good model. The EIC involves parties and their attorneys meeting with a volunteer attorney
facilitator to discuss the issues in and progress of selected cases. They also investigate whether
ADR is appropriate for the case and what the most effective and efficient ADR process would
be.
Some circuit courts have been moving away from case evaluation toward a greater use of
mediation. This was most evident in Grand Traverse, one of the six circuit courts that
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participated in the case file review. Grand Traverse has not ordered case evaluation since fall
2010 and mediation is currently ordered for all civil cases (torts and non-torts). Another of the
six circuit courts, Berrien, has also changed its approach to ADR in the past year. They have
moved toward a greater reliance on early mediation, ordering case evaluation only if mediation
has not resulted in a settlement.
Circuit court judges who completed the statewide survey were asked about attorneys’ willingness
to participate in mediation without the court ordering it. Sixty-seven percent of the judges had
observed an increase in attorneys’ willingness to participate in mediation without a court order
over the past five years.
3.2 Overview of Cases Examined in the Current Study
This section presents summary descriptive statistics for the 396 civil cases examined in this
study. Sections 3.3 and 3.4 provide statistical analyses of these data examining the effects of case
evaluation and mediation on variables of interest such as settlement rates and time to disposition.
Section 3.7 uses case data to map the sequence of events for cases ordered to either case
evaluation or mediation and indicates where in the process each case was disposed and how it
was disposed. Case data are used again in Sections 3.8 through 3.10 to examine the use and
relative effectiveness of these two types of ADR for torts and non-tort civil cases.
3.2.1 Use of Case Evaluation and Mediation
Table 3-1 summarizes the extent to which case evaluation and mediation were ordered and/or
conducted for all 396 civil cases (torts and non-torts) that were examined in this study through
case file reviews. Of the 181 cases involving torts, judges ordered one or both forms of ADR to
be used in all but one of these cases. The case records revealed that case evaluation and/or
mediation was conducted for 86% of the torts and in 24% of these cases both methods were used.
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Case Evaluation and Mediation Effectiveness Study: Final Report
Table 3-1
Use of Case Evaluation and Mediation for Torts and Other Civil Cases
Torts
(n = 181)
N
Percent
Other
(n = 215)
n
Percent
Total
(n = 396)
N
Percent
Court Order for:
CE Only
Both CE & Mediation
Mediation Only
Neither
112
65
3
1
62%
36%
2%
<1%
120
59
13
23
56%
27%
6%
11%
232
124
16
24
59%
31%
4%
6%
Held or Conducted:
CE Only
Both CE & Mediation
Mediation Only
Neither
88
43
25
25
48%
24%
14%
14%
68
29
30
88
32%
13%
14%
41%
156
72
55
113
39%
18%
14%
29%
Source: Case file review
Records for the 215 non-tort cases examined in this study indicated that judges ordered one or
both processes for 89% of these cases and that case evaluation and/or mediation was held in 59%
of these cases. In 13% of the cases, both case evaluation and mediation were held.
3.2.2 Disposition of Torts and Other Civil Cases
Table 3-2 shows that of the 396 cases examined in this study, the most frequent type of
disposition—62% of the cases—was a settlement or consent judgment. Another 28% of the cases
were disposed either through dismissal or default. Six percent of the cases went to trial and 5%
were disposed through a court verdict.
Table 3-2
Disposition of Torts and Other Civil Cases
Trial Held
Torts
(n = 181)
N
Percent
14
8%
Other
(n = 215)
n
Percent
10
5%
Type of Final Disposition
Settlement/Consent Judgment
Dismissed/Default
Court Verdict
Summary Disposition
124
41
12
4
120
68
9
18
69%
23%
7%
2%
Source: Case file review
Page 21 of 107 | Courtland Consulting
56%
32%
4%
8%
Total
(n = 396)
N
Percent
24
6%
244
109
21
22
62%
28%
5%
5%
Case Evaluation and Mediation Effectiveness Study: Final Report
3.3 The Effect of Case Evaluation and Mediation on Rates of
Settlement/Consent Judgment
3. The use of one or both of these ADR processes greatly increased the percentage of cases
in which a settlement or consent judgment was achieved. The effect was particularly
strong for cases that used only mediation. Increasing the percentage of cases disposed
through settlement/consent judgment effectively reduced the percentage of cases
disposed through other means, such as dismissal/default, summary disposition, or court
verdict.
Examination of all 396 civil cases revealed that when neither case evaluation nor mediation was
held, a settlement or consent judgment was reached in less than half (45%) of the cases, (see
Figure 3-1). If case evaluation alone was held, the percentage of cases disposed through
settlement/consent judgment was higher at 62%. If a combination of case evaluation and
mediation was used, the percentage of cases disposed through settlement/consent judgment
increased to 69%.The highest percentage of cases disposed through settlement/consent judgment
(84%) was for cases in which mediation alone was held.
Statistical analyses 3 performed on these data indicated that using case evaluation (alone or in
combination with mediation) resulted in a significant increase in the percentage of cases
disposed through settlement/consent judgment. Cases that used only mediation had a
significantly higher rate of settlement/consent judgment than the others. As can be seen in Figure
3-1, when the percentage of cases disposed through settlement/consent judgment increases, there
are fewer cases that can be disposed through other means, such as dismissal/default, summary
disposition, or court verdict.
3
Statistical pair-wise comparisons were made between each of the ADR groups. These analyses found that the percentage difference between the
CE Only group (62% settlement/consent rate) and the Neither group (45%) was statistically significant (chi-square = 7.70, df = 1, p = .004);
however the difference between the CE Only group and the Both group (69%) was not (chi-square = 1.14, df = 1, p = .18). The 84% for the
Mediation Only group was significantly higher than the 69% for the Both group (chi-square = 3.24, df = 1, p = .05), and thus significantly higher
than for the other groups as well.
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All Civil Cases
100%
84%
80%
69%
62%
60%
45%
41%
40%
27%
18%
20%
11%
3%
4%
7%
14%
10%
3%
2% 0%
0%
Neither (n=113)
Settlement/Consent
CE Only (n=156)
Dismissed/Default
Both (n=72)
Med Only (n=55)
Summary Disposition
Court Verdict
Figure 3-1 Percentage of cases disposed through settlement/consent
judgment and other means by type of ADR used
Although it appears in Figure 3-1 that cases where case evaluation was held (either alone or in
combination with mediation) had higher rates of disposition through trial verdicts than other
cases, the statistical significance of these differences could not be tested due to the small number
of cases disposed in this manner. 4
3.3.1 Acceptance of Case Evaluation Panel Award
4. The case evaluation award amount was accepted in 22% of the cases examined in this
study. Very few awards (2%) were accepted within 28 days.
Of the 228 cases in which case evaluation was held, the panel award amount was accepted by all
parties within 28 days in only 5 (2%) of the cases. Award amounts were accepted in an
additional 46 cases (20%) beyond the 28 day period. As shown in Figure 3-2, 50 of the cases in
which the award was not accepted were later disposed following mediation; 107 were disposed
without the use of mediation; and 20 were disposed after the case went to trial.
4
Of the 21 court verdicts, there were 3 in the Neither group, 11 in the CE Only group, 7 in the Both group, and 0 in the Mediation Only group.
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Case Evaluation and Mediation Effectiveness Study: Final Report
5 Cases
(273 days)
2%
46 Cases
(424 days)
20%
Yes
Yes
Case
Evaluation
Held
228 Cases
(325 days)
Disposed through MED
50 Cases (480 days)
Accept
Within
28 Days?
No
Accept
After 28
Days?
No
Disposed without MED
107 Cases (466 days)
Disposed through Trial
20 Cases (630 days)
22% of
Cases
Disposed
Figure 3-2 Acceptance of case evaluation panel award: Cases disposed and average (mean)
age of case at each point in the process
Figure 3-2 displays the case award acceptance outcome and the court action disposing the case if
the case evaluation award was not accepted for the cases in which case evaluation was held. This
figure includes all 228 cases in which case evaluation was held.
Attorneys participating in the focus groups shared some reasons why awards are not accepted
during the 28 days but may be accepted later. One reason is that if a party accepts, it “shows your
cards.” It was suggested that the defense will sometimes reject the award initially but if the
plaintiff accepts it, the defense will then decide to accept it. Another attorney noted that it is very
rare for plaintiffs to accept within 28 days and that the defense is more likely to accept. Others
suggested that the attorneys may want to test a motion for summary disposition first. Generally,
the focus group participants indicated they were not surprised that the panel awards were not
being accepted within 28 days, particularly when sanctions are unevenly imposed. Several
pointed out that the threat of sanctions weighs more heavily on individual plaintiffs than on large
organizations. It’s seen as being very tough on “the shallow pocket” even though collecting the
sanction may not be easy.
3.3.2 Settlement at or Following the Mediation Event
5. Where mediation was held, nearly half of the cases (47%) were settled “at the table.”
Ultimately 72% of cases that went to mediation were disposed through a settlement or
consent judgment and without later using case evaluation or going to trial.
Of the 127 cases in which mediation was held, 60 cases (47%) were settled at the mediation
event. Thirty-one of the cases (24%) were later disposed through settlement/consent judgment.
As shown in Figure 3-3, 13 of the remaining cases were later disposed following case evaluation,
15 were disposed via dismissal/default (13) or summary disposition (2), and 8 were disposed
through trial.
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Case Evaluation and Mediation Effectiveness Study: Final Report
60 Cases
(359 days)
47%
31 Cases
(409 days)
24%
Yes
Mediation
Conducted
127 Cases
(323 days)
Yes
Disposed through CE
13 Cases (413 days)
Settled at
Mediation
Event?
No
Settled
Later?
No
Disposed without CE
15 Cases (441 days)
Disposed through Trial
8 Cases (653 days)
72% of
Cases
Disposed
Figure 3-3 Cases settled through mediation: Cases disposed and average (mean) age of case
at each point in the process
Figure 3-3 displays the mediation outcome and the court action disposing the case if a mediated
agreement was not reached for the cases in which mediation was held. This figure includes all
cases in which mediation was conducted, whether ordered or not. There is partial overlap with
cases included in Figure 3-2, since 72 cases included both processes.
The finding that 72% of the mediated cases were disposed through settlement/consent judgment
is consistent with the results from the attorney survey and comments made by attorneys
participating in the focus groups. A majority of attorneys viewed mediation as being effective in
prompting cases to settle. Fifty-nine percent of the surveyed attorneys estimated that mediation
prompts clients to settle often or more. Similarly, the surveyed judges estimated that 54% of the
cases that go through mediation settle as a direct result of the process.
3.4 The Effect of Case Evaluation and Mediation on Time to Disposition
6. The use of case evaluation—whether alone or in combination with mediation—
significantly increased the length of time a case was open. Using mediation alone had no
significant effect on time to disposition compared to cases that used neither of these
ADR processes.
A key evaluation question for this study was whether either case evaluation or mediation reduces
the length of time needed to dispose a civil case. Time to disposition was calculated for each case
by determining the length of time from the filing date to the date on which the case closed. As
shown in Figure 3-4, the average length of time needed to close a case when neither case
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Case Evaluation and Mediation Effectiveness Study: Final Report
evaluation nor mediation was used was 322 days. Although the average time to disposition for
cases that used mediation by itself was 295 days, this was not a significant reduction in time. 5
All Cases
Med. Only (n=55)
295
CE Only (n=156)
463
Both (n=72)
489
Neither (n=113)
322
0
100
200
300
400
500
Time to Disposition (Mean Days)
Figure 3-4 Average number of days needed to resolve civil cases by type of ADR used
Time to disposition increased significantly when case evaluation was used. Figure 3-4 indicates
that the average increased to 463 days when only case evaluation was used and to 489 days if
used in combination with mediation.
3.4.1 Length of Time before and after Case Evaluation/Mediation is
Conducted
7. Mediation was faster than case evaluation for disposing cases because it was
implemented sooner and because cases closed more quickly following mediation.
In order to understand why cases that used mediation were disposed sooner than those that used
case evaluation, the study examined the average length of time from case filing until one or both
processes were conducted, and then the average length of time to case closure. Table 3-3
summarizes the results of this analysis.
When mediation was the only process conducted, the mediation session was held on average 242
days from the date of filing and the cases closed about 53 days after mediation so that the whole
process took an average of 295 days to complete. In contrast, when only case evaluation was
used, it took 331 days on average just to complete this process and then another 132 days to
close the case for a total of 463 days. If case evaluation was held first without success followed
by mediation, it still took over 300 days on average to complete this first form of ADR and then
additional time to conduct the mediation.
5
An analysis of variance comparing mean days open for the four ADR groups found that cases closed significantly later for some groups (F =
27.08, df = 3, 395, p<.001). Post hoc comparisons between groups using the Tukey-B HSD statistic found the following: no significant
differences between the Neither cases and the Mediation Only cases in average time to disposition; a significant increase in time to disposition
(p<.05) if case evaluation was used either alone or in combination with mediation; and no significant difference between the CE Only group and
the Both group in average time to disposition
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Case Evaluation and Mediation Effectiveness Study: Final Report
Table 3-3
Average Number of Days from Filing to ADR to Closure
For 5 Categories of ADR Cases
N
Days from
Filing to 1st
ADR
Days from
1st ADR to
2nd ADR
Days from
Last ADR to
Closure
Total Days
Case Open
156
331
—
132
463
Mediation Only
55
242
—
53
295
Both – Mediation First
16
267
56
122
445
Both – CE First
56
307
111
83
501
113
—
—
—
322
Type of ADR Case
CE Only
Neither
Source: Case file review
As shown in Table 3-3, when mediation was the last process held, the cases closed on average 53
to 83 days after the mediation event. When case evaluation was the last process held, it took on
average an additional 122 to 132 days to close a case.
3.4.2 The Effect of Adjournments on Time to Disposition
8. Rescheduling a case evaluation panel hearing one time did not significantly increase the
time needed to dispose a case, but multiple adjournments increased time to disposition
significantly.
The study examined the extent to which adjournments during the ADR process affected time to
disposition. For those cases in which only case evaluation was ordered, 44% of the time the
panel hearing was rescheduled at least once (see Table 3-4). While rescheduling case evaluation
one time did not significantly increase the time needed to dispose a case, multiple adjournments
did increase time to disposition significantly—to an average of 600 days for two adjournments
and 728 days for three or more. 6
6
An analysis of variance comparing mean days open for the four time groupings within the CE Only group found that cases closed significantly
later when there were multiple adjournments (F = 31.21, df = 3, 229, p<.001). Post hoc comparisons using the Tukey-B HSD statistic found no
significant differences between the cases with no adjournments and those with one; however, those with two adjournments were open
significantly longer (p<.05) than the first two groups and the ones with three or more were disposed significantly later (p<.05) than all the others.
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Table 3-4
Average Number of Days from Filing to Closure by
Number of Adjournments for 3 Categories of ADR Cases
Times Adjourned by ADR
Case Type
n
Percent
Mean Days Case
Open
CE Only
None
Once
Twice
Three Times or More
128
69
21
12
56%
30%
9%
5%
369
460
600
728
Mediation Only
None
Once
11
3
79%
21%
313
479
Both CE and Mediation
None
Once
Twice
Three Times or More
82
24
12
6
66%
19%
10%
5%
327
439
561
541
Source: Case file review
Cases in which both case evaluation and mediation were ordered presented more opportunities
for adjournments since one or both could possibly be rescheduled; however only about a third
(34%) of these cases had at least one adjournment. A single adjournment did not significantly
increase the time to disposition but two or more did. 7
There were not enough cases for which only mediation was ordered to make statistical
comparisons between those with one adjournment and those with none.
3.4.3 The Use of Case Evaluation and Mediation Relative to Discovery
9. Most judges and attorneys agreed that case evaluation is most effective if it occurs after
discovery. For mediation, many judges and attorneys saw the value of using this form of
ADR during discovery as well. Relatively few in each group thought that either case
evaluation or mediation was effective when used prior to discovery.
When asked about the timing of case evaluation relative to discovery, 76% of the judges
indicated that case evaluation is most effective after discovery, with only 14% choosing during
discovery and 10% before discovery. Their responses about the timing of mediation were more
mixed: 52% after discovery, 35% during discovery, and 13% before discovery.
7
An analysis of variance comparing mean days open for the four time groupings within the Both CE and Mediation group found that cases closed
significantly later when there were multiple adjournments (F = 9.75, df = 3, 123, p<.001). Post hoc comparisons using the Tukey-B HSD statistic
found no significant differences between the cases with no adjournments and those with one; however, those with two or more adjournments
were open significantly longer (p<.05) than those with none.
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Respondents to the attorney survey had similar preferences regarding the timing of discovery and
these ADR processes. Case evaluation was reported to be most effective if it occurred after
discovery: 58% after discovery compared to 32% during discovery and 2% before discovery. 8
For mediation, the responding attorneys’ preferences were more mixed: 57% during discovery,
46% after discovery, and 10% before discovery.
3.4.4 Sequence When Both Case Evaluation and Mediation Are Used in a
Case
In the statewide survey of circuit court judges respondents from courts where both processes are
used were asked which sequence was most common. Thirty-eight percent of the respondents said
that mediation was usually held first, 28% said case evaluation was usually held first, and 34%
said both sequences were equally common.
The attorney survey asked them which sequence of case evaluation and mediation they preferred.
Their responses were mixed and did not convey a clear preference. In the attorney focus groups,
however, participants expressed a general preference for mediation to occur early in most cases.
The most common sequence suggested by focus group participants was early mediation, then a
summary disposition, followed by case evaluation if needed.
3.4.5 Impact of Case Evaluation and Mediation on Court Workload and
Costs
10. Using mediation to resolve civil cases generally reduces costs to the court. The impact of
case evaluation on court costs is less clear.
The court administrators who participated in this study pointed out that these two forms of ADR
(case evaluation or mediation) save money by avoiding the expenses associated with trials.
However, they made a distinction between the impacts on trial judges and the impact on
administrative staff, since they said it can be time-consuming for staff to manage the summaries
and payments for case evaluation.
Grand Traverse had determined that given how few cases were successfully resolved by case
evaluation—and the diminishing resources available—“the Court cannot justify the
administrative time to set panels, resolve conflicts, replace evaluators, set hearing dates, collect
and disburse regular and late fees as well as administer the responses.” 9 Other courts expressed
the view that if case evaluation results in a settlement, it can save costs incurred by the court in
the long run. As one court administrator indicated: “[Case evaluation] saves the time of judges or
their staffs in participating in settlement conferences where the parties are unfamiliar with each
other’s position and where the parties have not had objective feedback about the merits of their
case.”
8
Responses to these items on the attorney survey do not add to 100% because respondents were instructed to choose all that apply and could
choose more than one response.
Memorandum to 13th Circuit Court General Civil and Personal Injury Case Evaluators from Hon. Philip E. Rodgers, Jr., Circuit Court Judge and
Hon. Thomas G. Power, Circuit Court Judge. November 23, 2010.
9
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In the statewide judicial survey, circuit court judges were asked about the financial impact to the
court of managing the case evaluation and mediation processes. Regarding case evaluation, 50%
said it reduces the court costs, 27% said it increases the court’s costs, and 23% said it had no
impact. Regarding mediation, 63% said it reduces the court costs, 29% said it had no impact, and
only 8% said it increases the court costs.
3.5 Relative Costs of Case Evaluation and Mediation for Litigants
11. The study found little evidence that case evaluation either reduces or increases costs
substantially for litigants in civil cases.
Among the court administrators from the six circuit courts in the study, ADR was generally seen
as helping litigants to save the costs incurred if the case were carried to trial (both pretrial and
trial costs). As one court administrator explained: “It may seem like a trial avoidance technique,
but earlier case interaction helps parties avoid unnecessary costs that impede case resolution.”
Regarding direct costs of these processes, one court administrator compared the $75 per party fee
for case evaluation with the $200 – $300 per hour that a mediator typically charges and
suggested that case evaluation provides a reasonable return for the cost.
Judges were asked about the financial impact to the litigants of participating in case evaluation or
mediation. Case evaluation was viewed by 61% of the respondents as having no net impact on
litigants’ costs; 39% said it increases litigants’ costs; and none said it reduces their costs.
Mediation, in contrast, was seen by 60% of the respondents as reducing litigants’ costs. About a
third (35%) said mediation increases litigants’ costs and 5% said it had no net impact.
The attorney survey asked about litigation costs subsequent to the particular ADR process being
conducted. About a third (36%) indicated that case evaluation frequently (often, very often or
always) reduced subsequent litigation costs, compared to 54% that reported that mediation
frequently reduced subsequent litigation costs.
12. Although mediation initially is a more expensive option for litigants, the study found
evidence that it can ultimately reduce their overall costs.
The attorney focus groups provided participants an opportunity to discuss more fully the costs of
case evaluation and mediation and their impact on the litigants’ overall costs. They pointed out
that mediation is more successful in settling cases than case evaluation, so it saves money in the
long run, since more costs are incurred when the case remains open for a longer period of time.
When asked about the specific costs, very few focus group participants offered any cost
estimates. One attorney estimated that the number of billable hours to prepare the case evaluation
summary ranges from 5 to 25 hours. Another suggested that the defense attorney might charge
$3,000 to $5,000 to prepare for case evaluation while the plaintiff would only pay the $75 fee for
the panel. Compared to the direct cost of case evaluation ($75 per party for the standard panel),
the cost of mediation is higher (estimated at typically $750 to $1,000 for each party), although
some focus group participants said that the cost would depend on the specific case.
Overall, there was strong agreement among attorney focus group participants that while the
direct cost of mediation is higher than that of case evaluation, it usually saves money because it
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is a more productive process. It was suggested that early mediation can save money overall by
avoiding the costs of discovery. Some attorneys indicated that they typically submit the same
documents for both processes and that the same preparation would also be needed to prepare for
a trial. The relative cost may depend on when the case goes to ADR. A few participants pointed
out that while mediation saves money when the parties settle, the cost of mandatory mediation
can be a problem for parties if they don’t want to be there and they don’t settle. It was suggested
that case evaluation is less expensive and “sometimes that is all you need.” One participant
concluded that whichever process is used, “ADR moves the process faster and saves attorney
fees for the litigants.”
3.6 Disposition of Cases Following an Order for Case Evaluation and/or
Mediation
The case file review revealed that when case evaluation and/or mediation were ordered in a case
they did not always occur. Furthermore, when both forms of ADR were ordered, they were not
always held in the sequence in which they were ordered. In addition, some parties opted for
mediation even when it was not ordered. The following subsections describe how and when
cases were disposed when either case evaluation or mediation was supposed to be the first or
only form of ADR held.
3.6.1 When Case Evaluation is the First or Only Type of ADR Ordered
Among the 396 civil cases reviewed, 292 were identified in which case evaluation was either the
only type of ADR ordered by the court (232 cases) or it was ordered to be conducted first with
mediation to be conducted later if needed (60 cases). Figure 3-5 provides an overview of the
sequence of events for these cases and indicates where in the process each case was disposed and
how it was disposed. The average age of the cases at disposition is indicated in parentheses.
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S/C: 7 (359)
D/D: 3 (470)
10
Mediation
Held
10 Cases
(318 days)
S/C: 28 (368)
D/D: 30 (318)
SD: 9 (398)
67
Ordered to
Case
Evaluation
292 Cases
(113 days)
3
23% of
Cases
Disposed
Case
Evaluation
Held
212 Cases
(328 days)
S/C: 96 (459)
D/D: 42 (461)
SD: 6 (359)
144
12
76% of
Cases
Disposed
S/C: Settled/Consent Judgment
D/D: Dismissed/Default
S/C: 39 (469)
D/D: 10 (532)
SD: 1 (388)
50
Post-CE
Mediation
Held
56 Cases
(418 days)
6
Trial Held
21 Cases
(589 days)
93% of
Cases
Disposed
S/C: 2 (789)
D/D: 1 (330)
CV: 18 (621)
21
100% of
Cases
Disposed
SD: Summary Disposition
CV: Court Verdict
Figure 3-5 Case disposition when case evaluation is the first or only type of ADR ordered:
Cases disposed and average (mean) age of cases at specific points in the process
On average the order for case evaluation was issued 113 days after the case was initially filed. As
shown in the figure above, 67 of the cases (23%) were disposed without either case evaluation or
mediation being conducted. In 10 other instances, the parties opted to use mediation instead of
court-ordered case evaluation to resolve their cases.
Of the 212 cases in which case evaluation was held, 144 (68%) were disposed through this
process. Twelve cases proceeded to trial without mediation taking place. After case evaluation,
56 cases proceeded to mediation, with all but six cases being disposed without trial. Thus 93% of
the cases were disposed without going to trial: 70% by means of case evaluation and/or
mediation and 23% without using either process.
3.6.2 When Mediation is the First or Only Type of ADR Ordered
Figure 3-6 shows the process through which 77 cases were disposed in which mediation was
either the only type of ADR ordered by the court (16 cases) or it was ordered to be conducted
first with case evaluation to be conducted later if needed (61 cases). These cases were ordered to
mediation on average 95 days after the case filing date.
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S/C: 3 (341)
D/D: 1 (228)
4
S/C: 12 (237)
D/D: 6 (248)
18
Ordered to
Mediation
77 Cases
(95 days)
CE Held
4 Cases
(245 days)
S/C: 37 (270)
D/D: 6 (319)
SD: 1 (291)
44
Mediation
Held
55 Cases
(231 days)
23% of
Cases
Disposed
S/C: 8 (356)
SD: 1 (540)
9
Post-MED
CE Held
11 Cases
(309 days)
86% of
Cases
Disposed
S/C: Settled/Consent Judgment
D/D: Dismissed/Default
Trial Held
2 Cases
(451 days)
97% of
Cases
Disposed
CV: 2 (576)
100% of
Cases
Disposed
SD: Summary Disposition
CV: Court Verdict
Figure 3-6 Case disposition when mediation is the first or only type of ADR ordered:
Cases disposed and average (mean) age of cases at specific points in the process
Eighteen of the 77 cases (23%) were disposed without mediation or case evaluation taking place.
Case evaluation, instead of mediation, was used first to dispose four of the cases. Of the 55 cases
in which mediation was held, 44 (80%) were disposed through this process and case evaluation
was later held for the other 11. Two of the cases for which post-mediation case evaluation was
held later went to trial. Thus 97% of the cases were disposed without going to trial: 74% by
means of mediation and/or case evaluation and 23% without using either.
3.7 Effectiveness of Case Evaluation and Mediation for Torts
MCR 2.403 requires the use of case evaluation for torts; however, it is also widely used for nontort civil cases. Mediation is not required for either type of civil case but is frequently used for
both (see Table 3-1 in Section 3.2 for statistics on the usage of these two forms of ADR for torts
and non-tort cases). This section of the findings examines the effectiveness of case evaluation
and mediation—used separately or in combination—in producing settlements and consent
judgments for tort cases generally and specifically for three types of torts: no-fault auto, personal
injury auto, and other personal injury cases. It also examines the effects of using these two
methods of ADR on the length of time needed to dispose tort cases.
A subsequent section of the findings (Section 3.9) provides similar analyses for non-tort civil
cases. And another section (Section 3.10) provides statistical analyses comparing the relative
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effectiveness of using case evaluation and/or mediation to help dispose torts versus non-tort civil
cases.
3.7.1 Case Dispositions for Torts
Examination of the 181 tort cases reviewed for this study (see Table 3-1) revealed that case
evaluation was conducted for 72% of the cases, and in a third of these cases mediation was also
held. Fourteen percent of the tort cases received only mediation services and an equal percentage
of torts were disposed without either process being held. If both processes were conducted, case
evaluation was held before mediation in 77% of the cases.
13. The use of one or both of the ADR processes tended to increase the percentage of tort
cases in which a settlement or consent judgment was achieved. The effect was
particularly strong for cases that used only mediation.
As shown in Figure 3-7, when neither process was held a settlement or consent judgment was
achieved for just over half (52%) of the tort cases. If case evaluation was held, the percentage of
torts disposed through settlement/consent judgment increased to 65% for case evaluation-only
cases and to 72% if mediation was also held. Tort cases that used only mediation were disposed
through settlement/consent judgment 92% of the time.
Torts
100%
92%
80%
72%
65%
60%
52%
40%
40%
27%
14%
20%
4%4%
12%
7%
1%
4% 4%
2%
0%
0%
Neither (n=25)
Settlement/Consent
CE Only (n=88)
Dismissed/Default
Both (n=43)
Med Only
(n=25)
Summary Disposition
Court Verdict
Figure 3-7 Percentage of torts disposed through settlement/consent
judgment and other means by ADR process used
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Statistical analyses performed on the data in Figure 3-5 indicated that although using case
evaluation (alone or in combination with mediation) resulted in an increase in the percentage of
cases disposed through settlement/consent judgment, the increase was not statistically
significant. 10 However, cases that used only mediation had a significantly higher rate of
settlement/consent judgment than the others.
3.7.2 ADR Usage and Case Dispositions for Three Types of Torts
Of the 181 torts examined in this study, 66 were personal injury/automobile negligence cases, 55
were no-fault automobile insurance claims, and 32 were other personal injury claims. The
remaining 12 cases were distributed among three other categories of torts. Table 3-5 shows the
extent to which case evaluation and/or mediation were ordered and held for the three types of
torts for which there were a sufficient number of cases to perform statistical comparisons.
Table 3-5
Use of Case Evaluation and Mediation for Three Types of Tort Cases
No-Fault Auto
Insurance
(n = 55)
N
Percent
Personal Injury
Auto
(n = 66)
N
Percent
Other Personal
Injury
(n = 32)
n
Percent
Court Order for:
CE Only
Both CE & Mediation
Mediation Only
Neither
38
16
1
0
69%
29%
2%
0%
39
26
0
1
59%
39%
0%
2%
17
13
2
0
53%
41%
6%
0%
Held or Conducted:
CE Only
Both CE & Mediation
Mediation Only
Neither
34
6
6
9
62%
11%
11%
16%
25
22
11
8
38%
33%
17%
12%
12
8
7
5
37%
25%
22%
16%
Source: Case file review
Statistical analyses found no significant differences among the three groups in the extent to
which case evaluation and mediation were ordered: in all groups, the majority of cases were
ordered to case evaluation only with nearly all others ordered to both case evaluation and
mediation. The groups did differ significantly, however, in the extent to which each form of
ADR was held (chi-square=12.89, df=6, p=.05). The cases in the no-fault automobile insurance
group were much more likely to have used only case evaluation (62%) than the cases in the other
groups and much less likely to have used mediation either alone or in combination with case
evaluation.
10
Statistical pair-wise comparisons were made between each of the ADR groups. These analyses found that the percentage difference between
the CE Only group (65% settlement/consent rate) and the Neither group (52%) was not statistically significant (chi-square = 1.35, df = 1, p =
.18); nor was the difference between the Neither group and the Both group (72%) (chi-square = 2.80, df = 1, p = .08). The 92% for the Mediation
Only group was significantly higher than the 72% for the Both group (chi-square = 3.83, df = 1, p = .05), and thus significantly higher than for
the other groups as well.
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Table 3-6 indicates how cases were disposed for the three types of torts for which there were
enough cases to make statistical comparisons. The critical variable for this study was the extent
to which cases were disposed though settlement/consent judgment. For all three case types, over
70% of the cases were disposed this way and there were no significant differences among the
groups on the type of disposition.
Table 3-6
Disposition of 3 Types of Tort Cases
No-Fault Auto
(n = 55)
Pers Injury Auto
(n = 66)
Trial Held
n
1
Percent
2%
N
4
Percent
6%
Type of Final Disposition
Settlement/Consent Judgment
Dismissed/Default
Court Verdict
Summary Disposition
39
14
1
1
71%
25%
2%
2%
49
13
4
0
74%
20%
6%
0%
Other Pers
Injury
(n = 32)
n
Percent
4
13%
23
5
3
1
72%
16%
9%
3%
Source: Case file review
3.7.3 Time to Disposition for Torts
14. For tort claims, the use of mediation significantly reduces the number of days a case is
open when compared to cases that do not use any ADR process. On the other hand,
using case evaluation significantly increases the length of time a case is open.
For the 181 tort cases examined in this study, the average (mean) number of days needed to
resolve a case was 429 (standard deviation = 180, range: 115 to 1,284 days). As shown in Figure
3-8, the average length of time needed to close a case when neither case evaluation nor
mediation was used was 365 days. The average time to disposition for cases that used mediation
by itself was 271 days, which was a significant reduction in time. 11 When case evaluation was
held, either alone or in combination with mediation, the average time to disposition (more than
460 days) was significantly longer than if neither process had been used or if mediation had been
used alone.
11
An analysis of variance comparing mean days open for the four ADR groups found that cases closed significantly later for some groups (F =
11.53, df = 3, 176, p<.001). Post hoc comparisons between groups using the Tukey-B HSD statistic found the following: a significant difference
between the Neither cases and the Mediation Only cases in average time to disposition (p<.05); a significant increase in time to disposition
(p<.05) if case evaluation was used either alone or in combination with mediation; and no significant difference between the CE Only group and
the Both group in average time to disposition.
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Torts
Med. Only (n=25)
271
CE Only (n=88)
474
Both (n=43)
464
Neither (n=25)
365
0
100
200
300
400
500
Time to Disposition (Mean Days)
Figure 3-8 Average number of days needed to dispose torts by category of ADR used
3.8 Effectiveness of Case Evaluation and Mediation for Non-Tort Civil
Cases
3.8.1 Case Dispositions for Non-Tort Civil Cases
Case evaluation was conducted for less than half (45%) of the 215 non-tort civil cases examined
in this study, and mediation was conducted in 27% of the cases (see Table 3-1). Thirteen percent
of cases used both processes, while 41% used neither. When both processes were held, case
evaluation was performed first in 79% of the cases.
15. For non-tort civil cases, the use of one or both of the ADR processes significantly
increased the percentage of cases in which a settlement or consent judgment was
achieved. The effect was strongest for cases that used only mediation.
Figure 3-9 shows the percentage of non-tort cases disposed through settlement/consent judgment
and by other means by the type of ADR process used. The pattern of results was similar to the
one found for torts: compared to cases that did not use either of these forms of ADR, there was a
significant increase in the percentage of cases disposed through settlement/consent judgment
when case evaluation was used; and when only mediation was held, the percentage of
dispositions via settlement/consent judgment was significantly higher than for the other groups. 12
12
Statistical pair-wise comparisons were made between each of the ADR groups for non-tort civil cases. These analyses found that the percentage
difference between the CE Only group (59% settlement/consent rate) and the Neither group (43%) was statistically significant (chi-square = 3.75,
df = 1, p = .04); however the difference between the CE Only group and the Both group (66%) was not (chi-square = 0.38, df = 1, p = .35). The
77% for the Mediation Only group was not significantly higher than the 66% for the Both group (chi-square = 0.89, df = 1, p = .26), and thus
significantly higher than for the other groups as well.
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Non-Tort Cases
100%
77%
80%
66%
59%
60%
43% 41%
40%
27%
20%
24%
23%
14%
7% 7%
2%
3%
7%
0% 0%
0%
Neither (n=88)
Settlement/Consent
CE Only (n=68)
Dismissed/Default
Both (n=29)
Med Only
(n=30)
Summary Disposition
Court Verdict
Figure 3-9 Percentage of non-tort civil cases disposed through settlement/consent
judgment and other means by ADR process used
3.8.2 ADR Usage and Case Dispositions for Three Types of Non-Tort
Cases
Of the 215 non-tort civil cases examined in this study, 78 were cases involving contracts, 46
were housing/real estate cases, and 51 were general civil cases. The remaining 40 cases were
distributed among nine other civil case categories. Table 3-7 shows the extent to which case
evaluation and/or mediation were ordered and held for the three types of non-tort cases for which
there were a sufficient number of cases to perform statistical comparisons.
There were no statistically significant differences among the three groups in the extent to which
case evaluation and mediation were ordered. For example, across the three groups 49% to 59%
of the cases were ordered to case evaluation only and 4% to 6% were ordered to mediation only.
The groups differed significantly, however, in the extent to which one or both forms of ADR
were held (chi-square=14.39, df=6, p<.05). Over half of the cases (52%) in the housing/real
estate group were disposed without participation in either case evaluation or mediation—this
despite the fact that 87% had orders for one or both of these forms of ADR. Also, a greater
portion of the contract cases (23%) were disposed using only mediation than in the other two
groups (8% to 13%).
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Table 3-7
Use of Case Evaluation and Mediation for 3 Types of Non-Tort Cases
Housing/Real
Estate
(n = 46)
n
Percent
Contracts
(n = 78)
General Civil
(n = 51)
n
Percent
n
Percent
Court Order for:
CE Only
Both CE & Mediation
Mediation Only
Neither
27
10
3
6
59%
22%
6%
13%
38
30
3
7
49%
38%
4%
9%
29
15
2
5
57%
29%
4%
10%
Held or Conducted:
CE Only
Both CE & Mediation
Mediation Only
Neither
13
3
6
24
28%
7%
13%
52%
26
13
18
21
33%
17%
23%
27%
19
11
4
17
37%
22%
8%
33%
Source: Case file review
Table 3-8 indicates how cases were disposed for the three types of non-tort civil cases for which
there were enough cases to make statistical comparisons. The critical variable for this study was
the extent to which cases were disposed though settlement/consent judgment. Across the three
case types, 54% to 63% of the cases were disposed this way and there were no significant
differences among the groups on the type of disposition.
Table 3-8
Disposition of 3 Types of Non-Tort Cases
Trial Held
Housing/Real
Estate
(n = 46)
n
Percent
1
2%
n
5
Percent
6%
n
3
Percent
6%
Type of Final Disposition
Settlement/Consent Judgment
Dismissed/Default
Court Verdict
Summary Disposition
25
15
1
5
47
23
5
3
60%
30%
6%
4%
32
13
2
4
63%
25%
4%
8%
54%
33%
2%
11%
Contracts
(n = 78)
Source: Case file review
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General Civil
(n = 51)
Case Evaluation and Mediation Effectiveness Study: Final Report
3.8.3 Time to Disposition for Non-Tort Civil Cases
16. For non-tort civil cases, the use of only mediation did not reduce the average number of
days a case was open when compared to cases that did not use either ADR process. On
the other hand, using case evaluation significantly increased the average length of time
a case was open.
For the 215 non-tort civil cases examined in this study, the average number of days needed to
dispose a case was 383 (standard deviation = 197, range: 1 to 1,156 days). Figure 3-10 indicates
the average number of days these cases were open when case evaluation, mediation, or both were
held and when neither was held.
Non-Tort Civil Cases
Med. Only (n=30)
315
CE Only (n=68)
449
Both (n=29)
524
Neither (n=88)
309
0
100
200
300
400
500
600
Time to Disposition (Mean Days)
Figure 3-10 Average number of days needed to dispose non-tort civil cases
by category of ADR used
Statistical analyses 13 revealed that there was no significant difference in the average time to
disposition for cases that used only mediation compared to cases that did not use either process:
both closed on average a little over 300 days from case filing. These two groups of cases,
however, closed significantly sooner than cases that used case evaluation only (449 days on
average) or case evaluation combined with mediation (524 days). Despite a difference of 75
days, there was no significant difference in the average number of days open between the group
that used case evaluation only and the group that used both case evaluation and mediation. The
lack of significance was due in part to the high degree of variability within each group on the
number of days each case was open.
13
An analysis of variance comparing mean days open for the four ADR groups of non-tort civil cases found that cases closed significantly later
for some groups (F = 15.26, df = 3, 1209, p<.001). Post hoc comparisons between groups using the Tukey-B HSD statistic found the following:
no significant difference between the Neither cases and the Mediation Only cases in average time to disposition; a significant increase in time to
disposition (p<.05) if case evaluation was used either alone or in combination with mediation; and no significant difference between the CE Only
group and the Both group in average time to disposition.
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3.9 Comparisons on the Use of Case Evaluation and Mediation for Torts
and Other Non-Tort Civil Cases
17. Case evaluation, which under MCR 2.403 is required to be ordered for torts, was
widely used for these cases (72%). In contrast, less than half of the non-tort cases (45%)
used case evaluation even though it was ordered for most of these cases.
Statistical comparisons between the tort and non-tort civil cases on the use of ADR produced the
results summarized in Table 3-9. 14 These results show that case evaluation was ordered
significantly more often for torts (98% of the cases) than for non-tort cases (83%), which is
consistent with the fact that referral to case evaluation is required for the former but not the
latter. A more striking difference is in the percentage of cases for which case evaluation was
actually held: 72% for torts compared to 45% for non-tort cases. These findings indicate that
when case evaluation was ordered for a tort claim it was usually used by the parties to help
dispose the case. On the other hand, even though case evaluation was ordered in a high
percentage of the non-tort cases, it was used in fewer than half of the cases to dispose the case.
Table 3-9
Comparisons between Torts and Non-Tort Civil Cases
Torts
(n = 181)
NonTorts
(n =
215)
Level of Significance
ADR Ordered
Case Evaluation
Mediation
98%
38%
83%
33%
p<.001
ns
ADR Conducted or Held
Case Evaluation
Mediation
Neither
72%
38%
14%
45%
27%
41%
p<.001
p <.05
p<.001
Disposition
Settled/Consent Judgment
Dismissed/Default
Court Verdict
Summary Disposition
69%
23%
7%
2%
56%
32%
4%
8%
p<.001
ns
—
—
Source: Case file review
14
Chi-square statistics comparing torts and non-tort cases were computed for each of the variables listed in Table 3-9. The probability level (p
value) is listed for results that were statistically significant. Non-significant results are indicated by “ns,” and a dash indicates that the small
number of cases precluded making meaningful statistical comparisons.
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Case Evaluation and Mediation Effectiveness Study: Final Report
18. Although mediation was ordered to be used in over a third of both the tort and non-tort
cases, it was held significantly more often for torts (38%) than non-torts (27%).
As shown in Table 3-9, there was no statistical difference in the percentage of torts and non-tort
cases ordered to mediation; however, mediation was held significantly more often for torts (38%)
than non-torts (27%). This finding is consistent with the lack of use of case evaluation for many
of the non-tort cases after it was ordered.
19. The higher use of case evaluation and mediation in the tort cases probably accounts for
the significantly higher rate of cases disposed through settlement/consent judgment for
torts (69%) than non-tort cases (56%).
Further evidence of the lack of use of ADR for non-tort civil cases is the finding that 41% of
these cases were disposed without either case evaluation or mediation being held compared to
just 14% of the torts, a highly significant difference. The higher use of these two forms of ADR
in the tort cases probably accounts for the significantly higher rate of cases disposed through
settlement/consent judgment for torts (69%) than non-tort cases (56%).
Although a smaller percentage of torts (23%) were dismissed or disposed through a default
judgment than non-tort cases (32%), this difference was not statistically significant. The small
numbers of cases disposed through court verdict and summary disposition (less than 10 in some
instances) precluded making meaningful statistical comparisons between tort and non-tort cases
on these dispositions.
3.10 Perspectives on Case Evaluation
3.10.1 Panels and Awards
20. Limited available data suggests that a panel usually arrived at an award that was less
than the amount of relief sought by the plaintiff; however, if the panel award was not
accepted, the plaintiff had about an equal chance of receiving either more or less than
the award amount.
The case files and local ADR databases at the circuit courts usually did not contain specific
information on the amount of relief sought by the plaintiff or the final amount received by the
plaintiff. Most of the records just indicated that the plaintiff sought relief in excess of $25,000.
Thirty-eight of the 228 files for cases where case evaluation was held recorded the amount
sought; the average (mean) amount was $114,693 and the median was $43,738. The final amount
received was available for 59 of the cases; the average (mean) amount was $102,057 and the
median was $35,000. Only 18 case files had both the amount sought and the final amount: in one
case the amount received equaled the amount sought, in 8 cases it was less, and in 9 it was more.
Most of the files (154 of 228) listed the amount of award determined by the case evaluation
panel; the average (mean) award was $95,079 and the median was $30,000. Table 3-10 shows
that, for the 26 cases where both the amount requested by the plaintiff and the case evaluation
panel award were available from the file, in 85% of the cases the award was less than requested.
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Case Evaluation and Mediation Effectiveness Study: Final Report
Table 3-10
Case Evaluation Panel Awards
Panel Award Compared to
Plaintiff’s Request
(n=26)
Average amount sought
Mean
Median
Panel Award:
More than sought
Same as sought
Less than sought
Average difference from
amount sought
Mean
Median
$94,351
$38,927
15%
0%
85%
-$44,260
-$24,610
Plaintiff’s Final Dollar Amount Upon
Disposition Compared to Panel Award
(n=39)
Average amount received
Mean
Median
Plaintiff Received:
More than panel award
Same as panel award
Less than panel award
Average difference from
panel award
Mean
Median
$119,489
$35,000
41%
23%
36%
-$14,764
$0
Source: Case file review
In the 39 case files that contained both the final amount upon disposition and the panel award,
23% of the plaintiffs received the same amount as the panel award. The number who received
more (16 cases) was nearly the same as the number who received less (14 cases). Four of these
cases were disposed by a court verdict: in three instances the plaintiffs got less than the panel had
recommended and in one case the plaintiff got more.
21. Judges assigned high ratings to the quality of case evaluators, while attorneys expressed
more mixed views of the panels’ expertise.
Circuit court judges gave high ratings when asked about the quality of case evaluators who serve
on panels for cases in their courts: 31% excellent and 48% very good. Attorneys expressed a less
favorable view of panels’ expertise: 60% of the attorneys who completed the survey indicated
that panels had sufficient expertise to evaluate their cases often or more (31% often, 24% very
often and 5% always). Thirty percent said sometimes and 10% said rarely or never. Attorneys
had mixed feelings about whether the awards approximated their own valuation of the cases:
43% said sometimes, 33% said often or more, and 25% said rarely or never. Some respondents
raised concerns about some panels being unprepared or inexperienced, particularly where
specialty panels are not common. Attorneys who participated in the focus groups pointed out that
in some courts the panels have very little time to review the summaries (which they said can be
overly long, with unnecessary attachments) and too little time with the attorneys present
(generally 30 minutes, but only 15-20 minutes in some courts).
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Case Evaluation and Mediation Effectiveness Study: Final Report
3.10.2 Non-unanimous Awards
Based on responses to the survey of attorneys, over two-thirds (68%) have never or rarely
requested that a panel issue a non-unanimous award. Fewer than 10% have done so often or
more. For those who have requested non-unanimous awards, 48% said the panels issued nonunanimous awards often or more. When asked their reasons for requesting a non-unanimous
award, the most common reason was the nature of the claim. Many commented that they are
requested in no-fault, first party claims involving personal injury protection (PIP) benefits. They
expressed concern that a plaintiff accepting the award risks the loss of future PIP benefits, while
rejecting the award may result in sanctions. Another reason cited involved equitable relief
because the award cannot properly address such relief.
Due to the specific concerns raised by attorneys regarding PIP claims (case type NF), the
evaluators examined the patterns and outcomes of the 55 PIP (NF) cases in the case file review
compared to 126 other tort claims. There were no statistically significant differences in the ADR
methods ordered or conducted. There were 34 PIP cases that had case evaluation only and
another 6 with both case evaluation and mediation. Of the non-PIP tort cases, 54 had case
evaluation only and another 37 had case evaluation and mediation. No statistically significant
differences were found in the settlement rates or days open in comparing the two categories. The
case records reviewed did not typically specify whether the award was unanimous or nonunanimous: only 29 cases provided this information. Within that count, 7 of the 13 PIP cases
(54%) had panels that resulted in unanimous awards and 15 of the 16 non-PIP cases (94%) had
unanimous awards. The direction of this difference is consistent with attorneys’ indications;
however, given the small number of cases, it was not possible to do reliable tests of statistical
significance.
3.10.3 Use of Sanctions
In the statewide survey of judges, 50% of the respondents indicated that sanctions are applied
often or more (29% often, 9% very often, 12% always) when the parties do not accept the award
within 28 days and the case is ultimately disposed by bench or jury trial. Thirty-one percent said
sometimes, 17% rarely and 2% never.
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Case Evaluation and Mediation Effectiveness Study: Final Report
How often have the sanction provisions of MCR 2.403 been the
primary incentive for parties to accept the award?
Attorneys
7%
20%
31%
22%
17%
3%
22%
17%
3%
Judges
14%
44%
Never
Rarely
Sometimes
Often
Very Often
Always
Figure 3-11 The effect of sanction provisions on the acceptance of case evaluation
awards
When asked how often the sanction provisions have been the primary incentive for parties to
accept the award, 42% of the judges indicated often or more. As shown in the Figure 3-11,
respondents to the attorney survey offered very similar estimates. In the focus groups, attorneys
pointed out that sanctions are unevenly applied, however, and are a greater concern to individual
plaintiffs than to large organizations. They also indicated that despite the threat of sanctions,
some case evaluation awards are not being accepted—particularly when there is a concern about
future benefits (as with PIP cases).
In the case file review there was insufficient data regarding sanctions for any analysis to be
conducted.
3.10.4 Important Outcomes of Case Evaluation
22. Judges and attorneys considered the primary purpose of case evaluation to be arriving
at a number the parties can accept rather than providing a fair valuation.
When asked about the primary purpose of case evaluation, 71% of the respondents to the judicial
survey indicated that it is to “arrive at a number that the parties can accept (likely to produce a
settlement or resolution)” and only 21% chose “provide a fair valuation of the case (close to the
value a jury or judge might award).” Attorneys responded similarly to that question in their
survey: 78% and 21%.
23. According to the attorney survey results, case evaluation is not often achieving its
intended outcomes.
Several potential outcomes of case evaluation were listed in the attorney survey and respondents
were asked to rate how important each is and how often case evaluation provided that outcome.
The following bar graph shows the ratings for each outcome: the percentage rating it important
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Case Evaluation and Mediation Effectiveness Study: Final Report
or very important and the percentage rating its frequency as often, very often or always. The
outcomes are arranged in descending order of importance, as rated by the attorneys.
How often has case evaluation provided the following
outcomes and how important are these outcomes?
81%
Provided a fair valuation of
my cases.
38%
79%
The award helped address
client expectations.
44%
Generally reduced
subsequent litigation costs
for my clients.
78%
36%
Identified strengths or
weaknesses of my cases.
68%
33%
Awards have been the
primary impetus for my
clients' settling.
65%
36%
48%
Raised legal arguments not
previously considered.
2%
0%
10%
20%
30%
40%
Important/Very Important
50%
60%
70%
80%
90%
100%
Frequently
Figure 3-12 Attorneys’ ratings of outcomes for case evaluation
The most important outcomes were: 1) provide a fair valuation (81% important or very); 2) help
address client expectations (79%); and 3) reduce subsequent litigation costs (78%). All three
outcomes were considered important by approximately 80% of the attorneys. Providing a fair
valuation was the only outcome where the majority considered it very important: 54%. In regard
to the frequency with which those outcomes were achieved, the range was only 33% to 44%
often or more, except for raising legal arguments not previously considered: 2%.
An open-ended question on the attorney survey allowed respondents the opportunity to identify
additional outcomes. Most of the 3,096 survey respondents did not answer this optional question.
Of the 709 responses to this question, the most common category (176) was that case evaluation
impedes settlement, generally as a result of an unrealistic award that either hardens or further
polarizes the parties’ positions. Some added that the award can either confirm or create
unrealistic expectations. Another response category (115) was that case evaluation is a waste of
time that does not provide any worthwhile outcome. Some respondents added that the panel is ill
prepared or too inexperienced to properly evaluate the claim.
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Reflecting a more positive view of case evaluation, 136 respondents indicated that it can provide
parties with a better understanding of the case, defeat unrealistic expectations, or uncover
pertinent facts that had not been identified. Another group of comments noted that case
evaluation has served as a vehicle for settlement (106). In some cases it provides a starting point
for negotiations or leads the parties to agree to further ADR, whether binding arbitration or
facilitative mediation (36). A smaller number of respondents commented that case evaluation led
to a forced settlement due to the threat of sanctions (38). Some saw this as unjust, in that it
causes the party with fewer financial means to either accept a settlement it otherwise may not
have or face the threat of sanctions (20).
Attorneys who participated in the focus groups indicated that the purpose of case evaluation
seems to have changed over the years. Attorneys with many years of experience pointed out that
panels used to focus more on what the case is really worth, but more recently they seem to look
for a number they think both sides can live with. It was suggested that the case evaluation award
is “a hammer to encourage settlement rather than a realistic value to the case.”
3.10.5 Overall Opinion about Case Evaluation
24. While circuit court judges in Michigan generally have a high opinion of case evaluation
as a means to resolve civil cases, attorneys are less convinced of its effectiveness.
Both the attorney survey and the judicial survey asked respondents to indicate the extent to
which they agree or disagree with the following statement: “Overall, case evaluation is an
effective method for resolving civil cases.” The judges indicated a more positive view of case
evaluation, with 69% of them agreeing or strongly agreeing with that statement. In contrast, only
48% of the attorneys agreed. While 12% of the judges and 21% of the attorneys reflected a
neutral view, only 19% of the judges indicated a negative view of case evaluation compared to
31% of the attorneys. 15
15
Attorneys who had served as case evaluators were less likely to indicate a negative view of case evaluation than those who had not: 20% vs.
39%.
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Case Evaluation and Mediation Effectiveness Study: Final Report
To what extent do you agree or disagree with the following statement?
"Overall, case evaluation is an effective method for resolving civil cases."
Attorneys
11%
20%
21%
36%
12%
Judges
7%
12%
12%
Strongly Disagree
24%
Disagree
45%
Neutral
Agree
Strongly Agree
Figure 3-13 Overall assessment of case evaluation by attorneys and judges
25. Judges were much more likely to order case evaluation when it is not mandated than
attorneys would be to use case evaluation if it were not court ordered.
Judges expressed a more favorable view of case evaluation than attorneys when they were asked
similarly worded questions about using case evaluation when it is not required (see Figure 3-11).
Judges were asked how often they would order case evaluation if it was not mandatory for tort
claims and 83% indicated often or more. Only 7% indicated they would rarely or never order
case evaluation if it were no longer mandatory for tort claims. When asked whether they would
have used case evaluation voluntarily if it had not been ordered in their cases, only 35% of the
attorney survey respondents indicated they would have done so often or more. A larger number
(38%) indicated rarely or never.
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Case Evaluation and Mediation Effectiveness Study: Final Report
How often would you voluntarily use case evaluation if not ordered/mandatory?
Attorneys
17%
21%
26%
18%
14%
3%
Judges
2%
2%
5%
10%
32%
Never
Rarely
Sometimes
49%
Often
Very Often
Always
Figure 3-14 Willingness to use case evaluation if not required
3.11 Perspectives on Mediation
3.11.1 Perceived Quality of Mediators
26. Circuit court judges indicated very high ratings for the quality of mediators available in
their jurisdiction.
Judges were asked to rate the quality of mediators who are on the approved list for cases in their
court. The highest ratings of excellent or very good were chosen by 92% of the judges; only 3%
gave ratings of poor or unsatisfactory. The attorney survey did not ask a similar question;
however, 12 of the 228 comments (5%) explaining why attorneys sometimes object to mediation
related to mediators’ perceived lack of competence.
When asked for ratings of the mediation service provided by the Community Dispute Resolution
Program center in the area, the percentages were adjusted to remove those for whom it was not
applicable. The adjusted percentages were 83% of the judges rating them excellent or very good
and 3% rating them poor or unsatisfactory.
3.11.2 Frequency of Objections to Mediation
When asked how frequently their cases were ordered to mediation, 44% of the attorneys
surveyed indicated it was a frequent occurrence (often or more). Most of the attorneys (51%)
have never objected to mediation and another third (33%) said they have rarely objected. Those
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who have ever objected (49% of attorneys) indicated that the most common reasons were: “One
or more parties needed a legal finding by the court first” (63%) and “The amount in controversy
did not warrant the cost of mediation” (57%). A much smaller number (13%) indicated that “the
clients participated in mediation before filing the lawsuit.” Other reasons offered by attorneys
included: it was clear that the parties were not willing to settle; the particular type of claim was
not conducive to mediation; involuntary mediation is not conducive to settlement. Of the
attorneys who did object, 46% said that judges nevertheless often or more than often ordered
their clients to participate in mediation.
Judges estimated that they ordered or referred roughly one-third of the cases to mediation (36%
of torts and 30% of other civil cases). The judges also indicated that attorneys seldom object to
mediation: 71% said attorneys rarely or never object. The two most common reasons heard by
the judges were the cost of mediation and that there was no chance of settling. Judges indicated
that when attorneys objected, they frequently ordered their clients to participate in mediation
nevertheless: 63% of the judges said often or more.
3.11.3 Important Outcomes of Mediation
27. According to attorney survey results, mediation frequently achieves its intended
outcomes.
The attorney survey listed several possible outcomes of mediation and asked respondents to rate
them on two scales: how important each outcome is and how often mediation has provided that
outcome. The following bar graph shows the ratings for each outcome: the percentage rating it
important or very important and the percentage rating its frequency as often, very often or
always. The outcomes are arranged in descending order of importance, as rated by the attorneys.
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How
has mediation
provided the
following the
outcomes
and howoutcomes
important are
Howoften
often
has mediation
provided
following
these outcomes?
and how important are these outcomes?
85%
Mediation prompted my
clients to settle
59%
85%
The mediator helped
address client expectations
67%
85%
59%
Mediation prompted my clients to settle
Mediation reduced
subsequent litigation costs
The mediator helped address client expectations
82%
67%
54%
85%
82%
Mediators provided a fair
Mediation reduced subsequent litigation costs
valuation of cases
54%
80%
70%
Mediators provided a fair valuation of cases
Mediation identified
strengths and weaknesses
Mediation identified strengths and weaknesses of case
of case
71%
43%
Mediators proposed settlement terms not previously
Mediators proposedconsidered
settlement terms not
Mediators indicated how trial judge would likely rule
24%or decide
previously considered
case
Mediators indicated how
Mediation raised legal arguments not previously considered
trial judge would likely rule
or decide case
Mediators provided insights about juries in trial location
80%
70%
71%
43%
69%
24%
69%
53%
44%
53%
52%
44%
8%
47%
Mediation raised legal
arguments not previously
considered
52% 33%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90%100%
8%
47%
Mediators provided insights
about juries in trial location
33%
0%
10%
20%
Frequently
30%
40%
50%
60%
70%
80%
90% 100%
Important/Very Important
Important/Very Important
Frequently
Figure 3-15 Attorneys’ ratings of outcomes for mediation
The most important outcomes, according to the respondents, were: 1) prompt clients to settle
(85% important or very); 2) help address client expectations (85%); 3) reduce subsequent
litigation costs (82%); and 4) provide a fair valuation of the case (80%). Two of these outcomes
were considered very important by more than half of the attorneys: prompt clients to settle (53%
very important) and reduce subsequent litigation costs (52% very important).
For the four most important outcomes, 54% - 70% of attorneys indicated that they were achieved
frequently (often or more). Few attorneys thought that mediation frequently raised legal
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arguments not previously considered (8%), proposed settlement terms not previously considered
(24%) or provided insights about juries in the trial location (33%). The gaps between importance
and frequency on several outcomes are smaller for mediation than they are for case evaluation
(see Figure 3-12). Comparisons between case evaluation and mediation on the common
outcomes are included in Table 3-11.
The attorney survey included an open-ended question to allow respondents to note any additional
outcomes not listed above. Most of the survey respondents did not answer this optional question.
Of the 379 responses to this question, the largest category (111) indicated that mediation
facilitates settlements. Some attorneys pointed out that the mediator was able to craft a creative
solution that would not have been possible in case evaluation or a trial. The second largest
category (93) expressed opposition to court-ordered mediation, pointing out that some parties are
not willing to settle regardless and the process (and its cost) angers them. Another large group of
respondents (71) observed that mediation resulted in the parties acquiring a better understanding
of the case. Another 37 commented that mediation provided a mechanism for client participation.
A smaller group (21) remarked that mediation resulted in an unjustified additional cost to the
parties.
3.11.4 Overall Opinion About Mediation
28. Judges and attorneys both give high marks to mediation as a means for resolving civil
cases.
The attorney survey and the judicial survey asked respondents the extent to which they agree or
disagree with the following statement: “Overall, mediation is an effective method for resolving
civil cases.” Both groups indicated agreement with that statement. The judges were especially
positive (89% strongly agree or agree), compared to 77% of the attorneys. 16 There was very
little disagreement from either group: only about 6% of each group.
16
Attorneys who had served as mediators were more likely to indicate a positive view of mediation than those who had not: 85% vs. 75%. The
difference was most notable in the percentages of attorneys who strongly agreed: 44% of those who had been mediators and 24% of those who
had not.
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Case Evaluation and Mediation Effectiveness Study: Final Report
To what extent do you agree or disagree with the following statement?
"Overall, mediation is an effective method for resolving civil cases."
Attorneys
2%
5%
16%
47%
30%
Judges
3%
3%
5%
18%
Strongly Disagree
71%
Disagree
Neutral
Agree
Strongly Agree
Figure 3-16 Overall assessment of mediation by attorneys and judges
3.12 Perceived Pros and Cons of Case Evaluation and Mediation
3.12.1 Attorneys’ Perspective
29. Mediation more often produces the key outcomes that attorneys seek when using an
ADR process than does case evaluation.
Some of the attorney survey questions were nearly identical between the case evaluation section
and the mediation section of the survey. This makes it possible to directly compare the attorneys’
opinions regarding case evaluation and mediation on several indicators. The following table
includes the percentage of attorneys agreeing or strongly agreeing that case evaluation/mediation
is an effective method for resolving civil cases. While 77% of attorneys agreed with that
statement regarding mediation, only 48% agreed regarding case evaluation. The other
percentages in the table are derived from the questions about specific outcomes of case
evaluation/mediation. They represent the attorneys who rated the frequency of that outcome
being achieved as often, very often or always. For all outcomes, attorneys indicate that mediation
more frequently achieves them than does case evaluation.
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Case Evaluation and Mediation Effectiveness Study: Final Report
Table 3-11
Attorneys’ Assessments of Case Evaluation and Mediation
Case Evaluation
Mediation
Is an effective method
48%
77%
Provides a fair valuation
38%
60%
Addresses clients’ expectations
44%
67%
Prompts clients to settle
36%
59%
Reduces subsequent litigation costs
36%
54%
Identifies strengths or weaknesses
33%
43%
2%
8%
Raises new legal arguments
Most notable are the outcomes that were ranked highest by attorneys for importance: providing a
fair valuation of the case, addressing clients’ expectations, providing an impetus for clients to
settle, and reducing clients’ litigation costs. The majority of attorneys said that mediation
frequently produced these types of results. For these individual outcomes areas, the percentage of
attorneys who frequently obtained positive results using mediation ranged from 54% to 67%.
When asked how often they achieved these same results through case evaluation, the percentage
who said they frequently did so was much lower for every outcome area—only ranging from
36% to 44%.
30. Mediation was seen by attorneys to have several advantages over case evaluation,
including having the participants present and having more time with the case.
In the focus groups, attorneys were asked about these survey findings in which mediation
compared favorably with case evaluation on several indicators. There was a strong consensus
that mediation benefits from more time spent on each case. Having the parties present—not just
the attorneys, as in case evaluation—was also seen to be a major advantage. Parties have the
opportunity to be heard; the mediator can speak privately with both parties; and it is possible to
arrive at other concessions besides just a settlement amount. As one attorney put it, “The
mediator is not imposing something from the top but facilitating the parties to come to an
agreement.”
When asked what would happen if neither process were ordered, very few attorney focus group
participants indicated any willingness to go to case evaluation voluntarily. Those who did
indicated that case evaluation still serves a purpose with some cases, particularly when one or
both sides are unrealistic. Many more participants indicated that they would—and do—go to
mediation voluntarily.
Flexibility was the common theme heard from all of the attorney focus groups. Attorneys want
courts to avoid the “one size fits all” approach that seems to be common where automatic
scheduling orders dictate the timing and sequence of ADR.
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3.12.2 Litigants’ Perspective
31. According to attorneys, litigants often feel frustrated by case evaluation because they
don’t get heard and don’t know how the panel determined the award amount.
When asked about the litigants’ perspective on these ADR processes, attorney focus group
participants indicated that case evaluation doesn’t seem like justice to the litigants. They want to
be heard and mediation gives them that opportunity. Litigants often feel frustrated because they
accepted something they didn’t like or their case was “solved by an economic squeeze rather
than their day in court.”
Some focus group participants suggested that attorneys need to do a better job of explaining the
case evaluation and mediation processes and share the opposing attorney’s summary with them.
As one put it, “a lot of complaints are because of poor communication between the client and
attorney.” However, it was added that most lawyers do a good job of explaining the range of
options to their clients. Another concluded that “if the process is fair, the number is less
important.” Still, litigants have expressed frustration with the system overall and why it takes so
long to get their case resolved.
3.12.3 Judges’ Perspective
32. Circuit court judges gave higher ratings to mediation than to case evaluation and
expressed a willingness to order mediation in place of or prior to case evaluation if it is
shown to be more effective. However, there was also support for the continued use of
case evaluation.
When judges were asked about the cases in their docket that go through these processes, they
estimate that 54% of the cases where mediation was conducted settled as a direct result,
compared to 42% of the cases where case evaluation was held. The survey also asked judges: “If
mediation was demonstrated to be more effective than case evaluation in achieving a disposition
sooner after the ADR event, how often would you order mediation in place of or prior to case
evaluation?” A high percentage (84%) responded often or more (20% always, 41% very often,
23% often). Only 8% indicated rarely or never.
As noted in sections 3.11 and 3.12, judges gave higher ratings to mediation than to case
evaluation. However, their assessment of case evaluation’s effectiveness was more positive than
the attorneys’ assessment. Judges’ comments indicated considerable variation between courts
regarding the value of case evaluation and/or mediation. While some have a preference for
mediation, others expressed support for the continuation of case evaluation. One pointed out that
“many insurance companies do not participate in any meaningful ADR without being ordered to
do so and without the threat of sanctions. Another “would like to see case evaluation modified
and/or replaced with MCR 2.4.11.” Reflecting a balanced perspective, one judge stated: “Both
processes are of value to the resolution of cases.”
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3.12.4 Court Administrators’ Perspective
33. Court administrators in the six circuit courts studied expressed mixed views of case
evaluation and mediation but strong support for flexibility in the use of ADR.
Court administrators who contributed to this study expressed favorable opinions about ADR and
added some specific views of case evaluation and mediation. Regarding ADR overall, they
indicated that it helps lawyers work out a suitable compromise; enhances communication and
identification of issues; and encourages settlements. One court administrator added that:
At times the use of ADR can seem to be a trial avoidance technique. Ideally, through
earlier case interaction, courts will encourage attorneys and litigants to break from
traditional litigation patterns and explore ADR alternatives before the parties incur
unnecessary costs that impede case resolution.”
Favorable opinions about case evaluation from court administrators included:
Case evaluation as opposed to facilitative mediation has the ability to give the parties and
an actual figure that they can take away from the table. The award amount may or may
not settle or resolve the case, but it is a useful starting point for negotiations for
settlement, as it is often the first time a figure is thrown out after the complaints have
been filed and answered. Whereas mediation attempts to bring the parties to an agreement
which is often a compromise, you don’t always come away with a solid figure as you will
in case evaluation. Case evaluation is a highly effective tool (even without a settlement)
for getting feedback on your brief from other counsel, and a reality check to take back to
the client as to what to expect as an award in that jurisdiction.
One viewpoint expressed by a court administrator was that case evaluation may not be suited to
every type of case, particularly negligence and no-fault cases:
In each instance, mandated case evaluation and the rules accompanying case evaluation
frequently complicate the case process by compelling counsel to defend against case
evaluation issues, including the prospect of sanctions while working to resolve the actual
dispute.
In other courts there was support expressed for the value of mediation in moving cases toward
settlement. One advantage to mediation was that “solutions are created by the parties.”
Mediation was seen to result in higher settlement rates with less burden on the court than case
evaluation.
One court administrator concluded that having a broad range of ADR alternatives offered by the
court allows counsel to select the appropriate process for nearly all cases. In the following
chapter (Chapter 4: Conclusions and Recommendations) further discussion of this flexibility is
provided, including recommendations derived from analysis of multiple data sources.
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4. Conclusions and Recommendations
4.1 Conclusions
In addition to the specific findings presented in the previous chapter (Chapter 3: Findings), the
evaluators have drawn some general conclusions. These conclusions are based on analysis of the
multiple data sources used in this study.
1. Based on the case file review of 396 civil cases (tort and non-tort) in six circuit courts, both
case evaluation and mediation are effective in achieving settlements that help prevent cases from
going to trial. However, mediation appears to be more effective than case evaluation in disposing
of cases more quickly and in achieving settlements.
2. Judges and attorneys expressed more favorable views of the effectiveness of mediation
compared to case evaluation.
3. Judges had a more favorable view of case evaluation than did attorneys. It is clear that some of
the circuit courts will want to continue ordering case evaluation for at least some cases.
4. Mediation was considered to reduce the costs for both the court and the litigants. Case
evaluation was not viewed as reducing costs.
5. Flexibility in the selection of an appropriate ADR method and in the timing of when in the life
of the case it is held received support from attorneys in particular. Judges and court
administrators also indicated support for having a range of options available.
4.2 Recommendations
The following recommendations derive from the evaluators’ analysis of the study findings. The
recommendations are listed in order of importance. Where deemed appropriate, the evaluators
have incorporated some of the suggestions put forth by judges and attorneys who participated in
the study.
Recommendation 1:
Given the evidence that mediation is generally more effective and preferred over case
evaluation, Michigan circuit courts should be encouraged to make mediation available
and not require case evaluation for case types for which it is not required by statute.
Although only required by statute for tort claims, case evaluation is being ordered by many
courts for other (non-tort) civil cases as well. Courts currently have the flexibility to order
mediation for the latter category and should be encouraged to exercise it. The recent shift in
Grand Traverse (13th Circuit Court) to ordering only mediation for all civil cases (including
torts) may prove to be a useful model for other courts as well.
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Recommendation 2:
Michigan circuit courts should continue to offer both forms of ADR (case evaluation
and mediation) but provide more flexibility in choosing the most suitable method and
timing for the specific case.
While some judges and attorneys would prefer to eliminate case evaluation and only use
mediation, others emphasize that there is a continuing need for case evaluation for some
cases. Support was expressed for mandatory ADR but with involvement of the judge or ADR
clerk early in the case to do “triage” in order to determine which process would be best suited
to the case and when it should occur. There should also be a fast track for cases that are ready
to settle without either case evaluation or mediation.
Several circuit courts were mentioned by attorneys in the focus groups as already providing
some exemplary flexibility. These included Genesee, Jackson and Kent. Some of these courts
may be sources of best practices that could be shared with other courts as models. A pilot
program of Early Intervention Conferences in Oakland (6th Circuit Court) showed promise
and may be worthy of reinstating and expanding to other courts if funds are available.
Recommendation 3:
Make the following improvements to the case evaluation process to make it more
effective for the cases in which it is used.
a) It is recommended that the penalty for late submission of the summary be increased. This
should discourage late submissions and allow more time for panel members to review the
materials.
b) Lengthy summaries and unnecessary attachments make it challenging for the panel to be
prepared for the case evaluation. It is recommended that a reasonable page limit be imposed
for the summary and attachments.
c) Circuit courts should ensure that specialty panels are made available and that attorneys are
aware of the options for specialty panels and additional time with the panel. Attorneys
throughout the state can request additional time at an additional cost and specialty panels.
d) To make the case evaluation process more helpful—whether or not the award is
accepted—it is recommended that panels be required to share how they arrived at the amount
of the award. Based on information obtained through the attorney focus groups, some panels
provide that information, but many do not.
e) The Michigan Supreme Court or SCAO should clarify the 28-day rule to ensure that all
circuit courts and attorneys have the same understanding. The evaluators found that in some
courts no one accepts or rejects the award within that timeframe. It appears to be common for
both parties to wait to see what the other party’s decision is regarding the panel award, which
often means waiting until after the end of the 28-day period.
f) The Michigan Supreme Court or SCAO should issue guidelines for case evaluators in
order to ensure that panels clearly understand their role and what is expected of them. These
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guidelines should be made available to attorneys as well, to avoid possible
misunderstandings.
g) Based on feedback provided by attorneys and judges, steps should be taken to ensure that
the panels are highly qualified. ADR clerks should obtain litigators’ feedback about the case
evaluators in order to eliminate the ones who are not considered competent, prepared or fair.
Recommendation 4:
Make the following improvements to the mediation process to make it more effective
for the cases in which it is used.
Based on the multiple data sources analyzed in this study, the evaluators have fewer
suggestions for improvements to the mediation process.
a) A frequent comment from attorneys was that mediation should be voluntary, especially
given the cost. However, the general recommendation that some form of ADR be mandatory
presents a challenge to the indication that mediation is generally more effective when the
parties participate voluntarily. Some possible solutions include giving the parties a say in the
selection of mediators, allowing cases to opt out if the size of the claim is too small or if there
is no chance of settling, and offering case evaluation as an alternative to mediation if the
parties object to mediation.
b) Make sure the right people are at the table—those with authority to settle—including use
of a show cause order if a party attends mediation without the necessary authority.
c) Strengthen the confidentiality rule in mediation to be certain that one can’t disclose the
numbers that are discussed in negotiations;
d) ADR clerks should get feedback about mediators from litigators in order to eliminate those
who are not considered effective.
Recommendation 5:
Courts could benefit from some guidance from SCAO regarding the maintenance of
ADR records and the confidentiality of such information.
This will help the courts improve their record-keeping practices and make it easier to obtain
data in the future. It would be advisable to have some consistency across courts regarding
what information should be maintained and for how long. It would be helpful to build in a
way to automate the data collection in the future.
Recommendation 6:
Whatever changes are made to either case evaluation or mediation or to the approach
to ADR in Michigan’s circuit courts, the changes should be clearly explained and
communicated to court staff, attorneys and the public.
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There needs to be better education of attorneys and information to clients about the ADR
processes and how they work, in order to avoid confusion and frustration. This will be
particularly important if changes are made to the current rules and procedures and if parties
and their counsel are given a voice in determining the type and timing of ADR to be used in
their case.
Based on the evaluators’ observations, some of the information about current ADR practices
is not uniformly understood or conveyed accurately to staff. There were differences observed
between courts and inconsistencies between court practices as described by SCAO and what
was observed at some courts. For example, the 28 day period for acceptance or rejection of
the case evaluation award appears to be interpreted differently in some courts. There are
inconsistencies in practices and ADR record-keeping and misinformation about what is
allowed versus required.
Recommendation 7:
It is recommended that SCAO work with the circuit courts throughout the state to
communicate the implications of the present study and any resulting changes that are
being considered.
The present study was limited to case file review and court administrator interviews in six
circuit courts, in addition to the statewide surveys of judges and attorneys and attorney focus
groups. Given the diversity of courts throughout the state, it will be helpful hear from the
courts that did not participate in the study. To that end, SCAO should consider a follow-up
study that involves a greater sample of courts. Their perspectives on case evaluation and
mediation and their feedback about proposed changes will help the Michigan Supreme Court
and SCAO to make the best decisions.
Recommendation 8:
Follow-up research will be helpful to study the impact of any changes in the use of case
evaluation and mediation in Michigan.
Additional research is recommended to examine the best practices that are currently
underway in some circuit courts. It will also be helpful to examine the impact of any changes
that are implemented by the Michigan Supreme Court or SCAO as a result of the current
study.
A future study could be expanded to include more courts or focus on courts where specific
changes have been implemented. In addition, the inclusion of a larger number of cases would
facilitate comparisons by case type to determine which case types are most suitable for each
form of ADR. The evaluation instruments from this study could be adapted to the needs of a
future study and further automation of case file records by the circuit courts would facilitate
more efficient collection of case file data for analysis.
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Appendix A: Historical Background of Case Evaluation and
Mediation in Michigan
SCAO provided Courtland with the following historical background on case evaluation and
mediation in Michigan:
Case Evaluation
The history of MCR 2.403 and 2.404, the case evaluation court rules, can be traced back 40 years
to two actions by the Michigan Supreme Court. First, the Court adopted General Court Rule
501.1, applicable only to the Wayne County Circuit Court, which created authority for a
“mediation docket:” 17
Rule 501. Assignment of Cases for Trial; General Call of Calendar
.1 Pretrial Assignment and Mediation Docket. The circuit court may provide by rule a pretrial
calendar and a mediation docket and shall provide for placing actions upon the pretrial calendar
or mediation docket or otherwise assigning a time and place for pretrial hearing or mediation
without necessity of a request therefor. [April 2, 1971] 384 Michigan Reports XLiv, 1971
Simultaneously, the Court approved Wayne County Local Court Rule 21 regarding mediation.
The Wayne County Circuit Court sought approval of its mediation process to address what was
considered a backlog of civil cases. 18 The central features of the process, which remain intact
today, included:
o Authority of the court to order parties in certain case types to the process
o Presentation of the case in an abbreviated amount of time and without application
of the rules of evidence by counsel to a three-member panel 19
o Process for the disqualification of panel members
o Providing panel members with documentation in advance of the hearing
o Payment of a fee
o Sanctions if one party accepts and the other rejects if upon trial the rejecting party
does not improve upon the award by 10 percent
Notably, in this early rule, cases intended for mediation were limited to auto negligence, and then
only where matters included complex legal or factual issues:
17
References to case evaluation in citations appearing before 2000 use the word “mediation.” By adoption of MCR 2.410 and MCR 2.411, and
amendment of MCR 2.403 and MCR 2.404 in 2000, the former “mediation” process was renamed “case evaluation.”
18
“Settling Cases in Detroit: An Examination of Wayne County’s ‘Mediation’ Program,” American Bar Association Action Commission to
Reduce Court Costs and Delay, 1984. See also “Description of the Mediation Process,” Third Judicial Circuit, Mediation Tribunal Association,
(undated), circa 1986.
19
Originally, the third member was a judge “agreed on by the two attorney mediators. Rule 21.3
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Rule 21 20 Mediation
Certain cases may be selected and submitted to mediation. These shall be automobile negligence
cases of probable liability and not involving complex legal or factual issues. [284 Michigan
Reports LXXXii, April 2, 1971]
Several years later, in 1974, the Court approved Macomb County Circuit Court Rule 17 which
was closely patterned after the Wayne County Circuit Court rule. Here again, the mediation
process was limited to “automobile negligence cases of probable liability not involving complex
legal or factual issues,” but case eligibility was expanded to include “or other cases involving
only the question of damages.” 391 Michigan Reports LXiii, 1974. In publishing the local court
rule, the Court advised that it is “considering adoption of same or similar provisions as part of
the General Court Rules to be applicable to all circuit courts,” and invited comments.
In 1979, Wayne County Circuit Court Local Court Rule 21 was rescinded and replaced by Rule
403 [407 Michigan Reports CXXiv, 1979]. While keeping many of the same provisions of the
prior rule, the circuit court deleted the prior reference to automobile negligence cases, stating that
“[t]he court may submit any civil case to mediation when the relief sought is exclusively money
damages or division of property.” Rule 403.1
The Michigan Supreme Court adopted GCR 316 (Mediation) in 1980, making available
statewide a practice previously authorized only through local court rule. [408 Michigan Reports
LXX, 1980]. Simultaneously, the Court rescinded local court rules on the topic with the
exception of Wayne County Local Court Rule 403, which the Court exempted from GCR 316,
permitting it to practice under its local rule. GCR 316.1 further expanded the scope and
applicability of the process in stating that “[a] court may submit to mediation any civil case in
which the relief sought consists of money damages or division of property.” Notably, the term
“consists of” replaces the more limited term “exclusively” money damages or property.
With the adoption of the Michigan Court Rules in 1985, GCR 316 became MCR 2.403 and local
court rules were rescinded. Trial courts were allowed to retain local practices by submitting for
approval local administrative orders, and the Wayne County Circuit Court mediation practice
was continued through this mechanism.
Amendments adopted in 1987 included both those resulting from recommendations of a
committee appointed by the Court and those adopted in response to 1986 PA 178
[MCL600.4901-600. 4969], so called “tort reform” legislation. Specifically, MCL 600.4903 and
600.4951 required that all tort claims be mediated. In addition, MCL 600.4905 required that all
medical malpractice claims be mediated. The mediation process outlined in the legislation
closely resembled MCR 2.403, but in addition to mandating mediation in tort and medical
malpractice claims, required the participation of health care professionals on the mediation
panels and that panels be expanded for the participation of the health care professionals. In
adopting language mandating tort and medical malpractice mediation, the Court also provided
that a case may be removed from mediation for good cause shown. MCR 2.403(A)(2).
20
The rule was given the number “21” after consideration by the Court.
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Amendments adopted in 1987 also further refined the applicability of the mediation process: “A
court may submit to mediation any civil action in which the relief sought is primarily money
damages or division of property.” MCR 2.403(A)(1). [Emphasis added.]
MCR 2.403 was amended a number of times since, most notably in 1997 when the mediation
panel qualification and appointment process was separated out into new MCR 2.404, and in
2000, when the term “mediation” was re-named “case evaluation” to reflect common uses of the
terms.
Of the numerous amendments to the structure of the case evaluation process over the past 40
years, perhaps the component most evolved has been the intended target group of cases. In its
earliest days, the process was intended to help dispose of “auto negligence cases of probable
liability and not involving complex legal or factual issues.” Today, any civil action in which
“the relief sought is primarily money damages or division of property” can be ordered to the
process.
Mediation
In contrast to the four decades during which the Michigan Supreme Court has considered matters
related to case evaluation, mediation has a much shorter history. Until 2000, when the Court
adopted MCR 2.410 (Alternative Dispute Resolution) and MCR 2.411 (Mediation), mediation
had been regulated by court rule only in domestic relations actions pursuant to MCR 3.216. This
rule, originally numbered MCR 3.211 was approved for a one-year period in 1987 and was
extended and renumbered effective May 1, 1993.
Mediation, as defined in MCR 2.411, “is a process in which a neutral third party facilitates
communication between parties, assists in identifying issues, and helps explore solutions to
promote a mutually acceptable settlement. A mediator has no authoritative decision-making
power.” 21
The Michigan Supreme Court Dispute Resolution Task Force issued reports in both 1999 and
2000, recommending that the Court adopt new rules implementing a broad ADR court rule
(MCR 2.410) and a court rule pertaining only to mediation (MCR 2.411). The task force also
proposed amendments to MCR 2.403 (Case Evaluation) and MCR 3.216 (Domestic Relations
Mediation)
The primary differences between the case evaluation and mediation processes are reflected in the
following table.
21
MCR 2.411(A)(2)
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Table A-1
Comparison of Case Evaluation and Mediation by Feature
Feature
Case Evaluation
Mediation
Structure of process
Established by court rule
Determined by the parties and the
mediator
Scope of discussions
Civil claims involving primarily
money damages raised in pleadings
Any topic parties wish to raise
Selection of neutral
Panels are selected by the court
Mediator is selected by the parties
Participants in the process
Attorneys and panel members
Parties, attorneys, other participants
identified by the parties and the
mediator
Process goal
Two predominant goals: (1) to
provide a true valuation of the case;
(2) to provide a number around
which parties can negotiate.
Disposition of case by agreement of
the parties
Sanctions
May apply if a rejecting party does
not improve upon an award
following trial
Do not apply
Process duration
Established by court rule
Determined by the parties and
mediator
Process approach
Adversarial
Collaborative
Process cost
Established by court rule
Negotiated between the parties and
the mediator
Courts electing to use the authority to order persons to attempt mediation must have an ADR
Plan approved by the State Court Administrator. 22 Currently, 52 circuit courts, 26 probate
courts, and 36 district courts have approved ADR plans. 23
Many courts’ first exposure to mediation has been through affiliations developed with local
Community Dispute Resolution Program centers. Through this program, created by 268 PA
1988, the State Court Administrative Office administers grants to non-profit organizations which
in turn provide mediation services primarily to courts. The program was initiated in 1990.
Currently, 20 organizations provide services to courts across the state. 24
22
23
MCR 2.410(B)
A list of courts with approved ADR plans appears here: http://courts.michigan.gov/scao/resources/other/localadrlist.pdf
24
The Community Dispute Resolution Program 2010 Annual Report appears here:
http://courts.michigan.gov/scao/resources/publications/reports/CDRPAnnualReport2010.pdf
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Appendix B: Survey of Other States
Survey of State Court Arbitration Programs
“Case evaluation,” the statutorily mandated alternative dispute resolution process for tort
claims and medical malpractice claims, appears to exist only in Michigan. 25 A survey of other
state court systems’ ADR processes reveals no clear comparison. The ADR process most
resembling case evaluation is non-binding arbitration, and this process appears in the statutes and
court rules of at least 16 states, the District of Columbia, and federal district courts.
Among these states, practices vary significantly in: (1) whether programs are statewide
or local; (2) whether arbitration is mandatory or voluntary; (3) jurisdictional amounts, ranging
from $15,000 to $150,000; (4) types of cases, ranging from auto negligence and personal injury,
to unlimited civil case types; and (5) the application of sanctions, ranging from none to a
rejecting party’s paying up to 30 percent of the accepting side’s costs.
No state appears to have as sweeping a sanction-based ADR process, both in terms of the
scope of cases arbitrated, and a limitless award amount. With the exception of one state—New
Jersey—sanctions appear only in programs that have clear jurisdictional caps on the arbitration
award, and these are limited to auto negligence and personal injury cases. 26 All states limit nonbinding arbitration to money damage claims; no statutes reflect authority for the arbitration of
equitable claims.
Evaluation is sparse. The most comprehensive evaluation, a 2007 study of arbitration in
Arizona, incorporates limited data from a number of states. 27 Arizona’s arbitration system may
be one of just several states having features similar to Michigan’s case evaluation practice,
however the system was not viewed as particularly effective:
“…the program’s primary goals—providing faster and less expensive resolution of cases,
reducing the court’s workload, and maintaining or enhancing the satisfaction of users—
were not entirely being met.” Wissler, p. 96.
“…both in Arizona and in other jurisdictions, both in long-standing and in newly
implemented programs, and both currently as well as over a decade ago, court-connected
arbitration does not appear to have negative consequences, but also does not consistently
or substantially improve the effectiveness and efficiency of dispute resolution.” Wissler,
p. 97
While federal district courts may include arbitration in their case management plans, an
early evaluation (now 25 years old) of five districts courts including arbitration in case
management plans, suggested that the early efforts also did not result in significant case
management improvements:
25
MCL 600.4901-600.4969 mandates referral of tort cases to this process.
Some additional non-personal injury claims may be ordered into arbitration.
27
“Court-Connected Arbitration in the Superior Court of Arizona: A Study of Its Performance and Proposed Rule Changes,” Roselle L. Wissler
and Bob Dauber, Journal of Dispute Resolution, Vol. 2007 pp. 96-97.
26
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“Our statistical analyses of cases referred to mandatory arbitration detected no major
effect of arbitration on time to disposition, lawyer work hours, or lawyer satisfaction.” 28
General findings from the state survey include:
1. No other state has mandatory case evaluation of tort or general civil claims
2. The closest ADR process, non-binding arbitration, is mandated in a few states
3. A cap is typically placed on the amount in controversy for cases ordered to arbitration
4. No state included claims for equitable relief in either mandatory or voluntary
arbitration programs.
The following chart reflects primarily state court systems that have mandatory or
voluntary arbitration programs in the general jurisdiction trial courts. 29
Cite(s)
State/Court
Process
Arizona
Mandatory non-binding arbitration of money
damage claims under $65,000. Counties can
select whether to mandate arbitration, different
jurisdictional limits, and when cases are
arbitrated. Rejecting party must improve upon
award by 25% in trial de novo or pay opposing
side costs.
Mandatory arbitration of civil claims with
damages under $50,000 in jurisdictions with
16 or more judges. Courts with under 16
judges can opt in by local order.
Ariz. Rev. Stat. Ann. Sec. 12-133
http://www.azleg.state.az.us/ars/12/
00133.htm
Connecticut
Court may refer any civil action where the
reasonable expectation of damages is below
$50,000.
Conn. Gen. Stat. Sec 52-549u
http://law.justia.com/codes/connecti
cut/2009/title52/chap922b/Sec52549u.html
Delaware
Courts may order non-binding arbitration or
mediation; if parties do not stipulate to a
process, mediation is the default. No limit on
jurisdictional amount. No sanctions.
Del. Ct. C.P.R. 16
http://courts.delaware.gov/superior/
pdf/civil_rule16_rev_mar08.pdf
Florida
Courts may order non-binding arbitration. No
limit on jurisdictional amount. No sanctions.
Fla. Stat. Sec. 44.103-108
http://phonl.com/fl_law/rules/frcp/fr
cp1820.htm
California
Cal. Civ. Proc. Code Sect. 1141.1028
http://law.justia.com/codes/californi
a/2009/ccp/1141.10-1141.31.html
http://www.flcourts.org/gen_public/
adr/chapter44.shtml
28
“Just, Speedy, and Inexpensive? An Evaluation of Judicial Case Management Under the Civil Justice Reform Act,” Kakalik et al, RAND, The
Institute for Civil Justice, 1996, page 18.
29
The states appearing in the following table were originally identified in the study referenced in footnote 27.
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Georgia
Hawaii
Illinois
Minnesota
Nevada
New Jersey
North
Carolina
Local courts may adopt non-binding arbitration http://www.godr.org/files/ADR%20
as one of several ADR programs. No
Act.pdf
sanctions.
http://www.godr.org/files/CURRE
NT%20ADR%20RULES%20COM
PLETE%207-22-2011.pdf
Civil tort actions with probable award of less
Haw. Rev. Stat. Sec 601-20
than $150,000 may be ordered to non-binding
http://www.courts.state.hi.us/docs/c
arbitration. Sanctions are discretionary for a
ourt_rules/rules/har.htm
party not improving upon the award by 30%
following verdict.
http://codes.lp.findlaw.com/histatut
es/4/32/601/601-20
Courts may order mandatory non-binding
735 ILCS 5/2-1001A
arbitration; jurisdictional amount and sanctions Ill. Sup. Ct. R. 86-95
established locally.
http://www.cookcountycourt.org/rul
es/rules/rulespart18.html
Cook County (Chicago) has a mandatory
arbitration program for claims up to $30,000.
Court-Annexed Mandatory
Arbitration Annual Report—Fiscal
Year 2010.
http://courtadr.org/files/ManArbRpt
_Cook10.pdf
Courts may order binding or non-binding
Minn. Stat. Sec. 484.73-76
arbitration only upon stipulation of the parties. http://mncourts.gov/ruledocs/genera
Sanctions do not apply.
l/GRtitleII.htm#g114
Mandatory arbitration of money damage
NRS 38.258
claims not exceeding $50,000 in jurisdictions
http://www.leg.state.nv.us/courtrule
of 100,000 population. Program is optional for s/RGADR.html
jurisdictions of less population. Sanctions: for
awards under $20,000, rejecting party must
improve upon award by 20%; for awards over
$20,000, rejecting party must improve upon
award by 10%.
Following unsuccessful mediation, auto
N.J. Stat. Ann. Sec. 2A:23A-20
negligence and PI cases, as well as those
http://www.judiciary.state.nj.us/rule
stipulated to, may be ordered to arbitration
s/r4-21a.htm
where money damages do not exceed $20,000.
Minor sanctions, limited by court rule, may
http://www.judiciary.state.nj.us/civi
apply if rejecting party does not improve upon l/PersonalInjuryArbitrationStatute.p
award by 20%.
df
Courts may order money damage claims under N.C.Gen.Stat. Sec. 7A-37.1
$15,000 to arbitration after consultation with
http://www.ncga.state.nc.us/enacted
parties.
legislation/statutes/pdf/bychapter/ch
apter_7a.pdf
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Case Evaluation and Mediation Effectiveness Study: Final Report
Ohio
Oregon
Pennsylvania
Rhode Island
Washington
State
District of
Columbia
Superior
Court
Federal
District
Courts
Courts may adopt plans for mandatory
arbitration. Courts participating have limits on
arbitration of claims between $25,000 and
$100,000. No sanctions, but party appealing
from award may be required to pay the
arbitrator’s fees.
Mandatory arbitration of claims under
$50,000. Court may not order to arbitration if
parties stipulate to mediation. Sanctions:
plaintiff must improve upon a verdict by 10%;
defendant by 20%
Oh. Sup. R. 15
http://www.sconet.state.oh.us/Lega
lResources/Rules/civil/CivilProced
ure.pdf
Courts may adopt arbitration programs matters
where the amount in controversy is under
$50,000. No sanctions, but bond must be
posted for trial de novo.
Courts may adopt mandatory arbitration
programs. Sanctions are limited to the
payment of accepting party’s arbitration filing
fee.
Courts may adopt mandatory arbitration
programs for money damage claims up to
$50,000. Sanctions may be applied if a
rejecting party does not improve its position
following trial de novo.
Arbitration is voluntary as one option in the
court’s “multi-door” approach. Cases are
selected at a scheduling conference.
42 PA. Cons. Stat. Sec. 7361
http://www.pacode.com/secure/dat
a/231/chapter1300/chap1300toc.ht
ml
R.I. Gen. Laws Sec 8-6-5
http://www.rilin.state.ri.us/Statutes
/TITLE8/8-6/8-6-5.HTM
Courts may order arbitration with parties’
consent in cases with damages under
$150,000.
28 USC 654(A)(3)
http://law.justia.com/codes/us/title
28/28usc654.html
Page 68 of 107 | Courtland Consulting
Or. Rev. Stat. Sec. 36.400
http://www.leg.state.or.us/ors/036.
html
Wash. Rev. Code 7.06.010-080
http://apps.leg.wa.gov/rcw/default.
aspx?cite=7.06&full=true
http://www.dccourts.gov/dccourts/
superior/multi/arbitration.jsp
Case Evaluation and Mediation Effectiveness Study: Final Report
Appendix C: Results of Statewide Survey of Attorneys
1. Introduction
1.1 In what part of the state have you had the most case evaluation or mediation
experience?
66%
8%
7%
7%
5%
5%
2%
Southeast Michigan (Lenawee, Livingston, Macomb, Monroe, St. Clair, Oakland,
Washtenaw, Wayne)
Western Michigan (Ionia, Kent, Mecosta, Montcalm, Muskegon, Newaygo, Oceana,
Ottawa)
Eastern Michigan (Arenac, Bay, Clare, Genesee, Gladwin, Huron, Isabella, Lapeer,
Midland, Saginaw, Sanilac, Tuscola)
Mid-Michigan (Clinton, Eaton, Gratiot, Hillsdale, Ingham, Jackson, Shiawassee)
Southwest Michigan (Allegan, Barry, Berrien, Branch, Calhoun, Cass, Kalamazoo, St.
Joseph, Van Buren)
Northern Lower Peninsula (Alcona, Alpena, Antrim, Benzie, Charlevoix, Cheboygan,
Crawford, Emmet, Grand Traverse, Iosco, Kalkaska, Lake, Leelanau, Manistee, Mason,
Missaukee, Montmorency, Ogemaw, Osceola, Oscoda, Otsego, Presque Isle,
Roscommon, Wexford)
Upper Peninsula
Approximately two-thirds (66%) of the 3,096 respondents were from the Southeast region. The Upper
Peninsula (2%) had the fewest number of respondents.
1.2 What are your primary areas of litigation? Select all that apply.
40%
34%
33%
25%
18%
17%
16%
14%
9%
9%
8%
3%
3%
2%
9%
Commercial
Personal Injury
General Practice
Real Property
Insurance
Other Negligence
Labor and Employment
Probate
Consumer
Medical Malpractice
Products Liability
Environmental
Health Care
Intellectual Property
Other
36% of respondents reported having only one primary area of litigation; 59% reported 2 to 5 areas;
and 5% had more than 5 areas.
1.3 Do you primarily represent plaintiffs, defendants, or both equally?
25%
31%
44%
Plaintiffs
Defendants
Both Equally
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1.4 Have you served as a case evaluator in the past five years?
40%
60%
Yes
No
1.5 If yes, how many times have you served as a case evaluator in the past five
years?
60%
27%
6%
7%
1-10 times
11-20 times
21-30 times
More than 30
1.6 Have you served as a mediator in the past five years?
27%
73%
Yes
No
1.7 If yes, how many times have you served as a mediator in the past five years?
67%
15%
5%
13%
1-10 times
11-20 times
21-30 times
More than 30
40% of respondents (1,228) had served as case evaluators and 27% (817) had served as mediators
in the past 5 years. Almost half of the respondents had served as either a case evaluator or mediator
in the past 5 years, and 19% had served as both.
2. Case Evaluation
2.1 As a litigator, how many case evaluations have you participated in over the
past five years?
38%
23%
13%
26%
1-10 times
11-20 times
21-30 times
More than 30
2,607 of the 3,096 respondents (84%) had participated in at least one case evaluation in the past 5
years. The rest of the results presented in the Case Evaluation section of this report are based on the
responses of these 2,607 respondents unless otherwise noted.
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3. Case Evaluation
3.1 How frequently have you objected to case evaluation?
1%
3%
3%
15%
37%
42%
Always
Very Often
Often
Sometimes
Rarely
Never
Approximately 80% of respondents rarely or never objected to case evaluation.
3.2 If you have objected to case evaluation, how frequently has the judge
nevertheless ordered your clients to participate in case evaluation?
22%
17%
12%
16%
20%
15%
Always
Very Often
Often
Sometimes
Rarely
Never
Percentages above are based on the responses of 1,357 attorneys who had objected to case
evaluation.
3.3 How often have case evaluation panels had sufficient expertise to evaluate
your cases?
5%
24%
31%
30%
9%
1%
Always
Very Often
Often
Sometimes
Rarely
Never
Only 60% of attorneys said that panels had sufficient expertise to evaluate their cases often or more.
Ten percent indicated that panels rarely or never had sufficient expertise.
3.4 Generally, the awards have approximated my own valuation of the cases:
1%
8%
23%
43%
22%
3%
Always
Very Often
Often
Sometimes
Rarely
Never
Attorneys had mixed feelings about whether the awards approximated their own valuation of the
cases: a quarter said they rarely or never do, while 33% said they do often or more.
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3.5 How often have you requested that a panel issue a non-unanimous award?
1%
3%
5%
23%
27%
41%
Always
Very Often
Often
Sometimes
Rarely
Never
Less than 10% of attorneys have often requested a non-unanimous award (rating of often or above).
Reasons were provided by 780 survey respondents. The most common reason (334 respondents)
was the nature of the claim. Concerns were expressed about PIP benefits in particular (192
respondents). Equitable relief was mentioned by 61 respondents. The second most common
category was avoiding the threat of sanctions, mentioned by 150 respondents. The third most
common reason (64) was when there is a large disparity between the parties, in terms of their
positions or bargaining power.
3.6 If you have requested non-unanimous awards, how often did panels issue a
non-unanimous award?
18%
17%
13%
21%
23%
8%
Always
Very Often
Often
Sometimes
Rarely
Never
Percentages above are based on the responses of 1,397 attorneys who had requested a nonunanimous award.
3.7 How often do your clients accept case evaluation awards within 28 days of the
case evaluation hearing?
3%
15%
24%
40%
15%
2%
Always
Very Often
Often
Sometimes
Rarely
Never
3.8 In your opinion, the purpose of case evaluation is to provide an award
amount... (Select all that apply)
21%
78%
13%
8%
…that is close to the value a jury or judge might award
…that is likely to produce a settlement or resolution
…that responds to unrealistic expectations
…that serves other purposes
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3.9 How often would you have voluntarily used case evaluation if it had not been
ordered in your cases?
3%
14%
18%
26%
21%
17%
Always
Very Often
Often
Sometimes
Rarely
Never
3.10 How often has case evaluation provided the following outcomes and how
important are those outcomes?
Case evaluation has identified strengths and weaknesses of my cases.
2%
11%
20%
36%
25%
6%
How Often
Always
Very Often
Often
Sometimes
Rarely
Never
34%
34%
16%
9%
8%
How Important
Very Important
Important
Neutral
Unimportant
Very Unimportant
Case evaluation has raised legal arguments that I had not previously considered.
<1%
<1%
2%
22%
52%
23%
How Often
Always
Very Often
Often
Sometimes
Rarely
Never
22%
26%
22%
14%
16%
How Important
Very Important
Important
Neutral
Unimportant
Very Unimportant
Case evaluation has provided a fair valuation of my cases.
1%
10%
27%
43%
17%
2%
How Often
Always
Very Often
Often
Sometimes
Rarely
Never
54%
27%
13%
3%
3%
How Important
Very Important
Important
Neutral
Unimportant
Very Unimportant
The case evaluation process has generally reduced subsequent litigation costs for my
clients.
2%
15%
19%
36%
23%
6%
How Often
Always
Very Often
Often
Sometimes
Rarely
Never
46%
32%
14%
4%
3%
How Important
Very Important
Important
Neutral
Unimportant
Very Unimportant
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The award has helped address client expectations.
2%
16%
25%
35%
17%
4%
How Often
Always
Very Often
Often
Sometimes
Rarely
Never
39%
40%
15%
4%
2%
How Important
Very Important
Important
Neutral
Unimportant
Very Unimportant
Case evaluation awards have been the primary impetus for my clients’ settling.
1%
14%
21%
38%
21%
5%
How Often
Always
Very Often
Often
Sometimes
Rarely
Never
28%
37%
24%
7%
4%
How Important
Very Important
Important
Neutral
Unimportant
Very Unimportant
3.11 What other outcomes has case evaluation provided? (Open-ended)
A total of 709 respondents wrote in additional outcomes beyond the ones listed above. The most
common response (176) remarked that case evaluation impedes settlement, generally as result of
an unrealistic award that either hardens or further polarizes the parties’ positions. Some added that
the award can either confirm or create unrealistic expectations. Another response category (115)
was that case evaluation is a waste of time that does not provide any worthwhile outcome. Some
respondents added that the panel is ill prepared or too inexperienced to properly evaluate the
claim.
Reflecting a more positive view of case evaluation, 136 respondents indicated that it can provide
parties with a better understanding of the case, defeat unrealistic expectations, or uncover pertinent
facts that had not been identified. Another group of comments noted that case evaluation has
served as a vehicle for settlement (106). In some cases it provides a starting point for negotiations
or leads the parties to agree to further ADR, whether binding arbitration or facilitative mediation
(36). A smaller number of respondents commented that case evaluation led to a forced settlement
due to the threat of sanctions (38). Some saw this as unjust in that it causes the party with fewer
financial means to either accept a settlement it otherwise may not have or face the threat of
sanctions (20).
3.12 Relative to discovery, case evaluation has been most effective when it was
held: (Select all that apply)
2%
4%
8%
20%
58%
10%
Before Discovery
In Early Discovery
In Mid-Discovery
In Late Discovery
After Discovery
Rarely/Never
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3.13 Relative to mediation, case evaluation has been most effective when it was
held: (Select all that apply)
36%
28%
15%
Before Mediation
After Mediation
Rarely/Never
3.14 How often have the sanction provisions of MCR 2.403 been the primary
incentive for your clients to accept the award?
3%
17%
22%
31%
20%
7%
Always
Very Often
Often
Sometimes
Rarely
Never
3.15 To what extent do you agree or disagree with the following statement?
"Overall, case evaluation is an effective method for resolving civil cases."
12%
36%
21%
20%
11%
Strongly Agree
Agree
Neutral
Disagree
Strongly Disagree
Nearly half of the attorneys (48%) agreed that case evaluation is an effective method of resolving
civil cases, while 31% disagreed. The percentage of attorneys who strongly disagreed (11%) was
nearly equal to the percentage who strongly agreed that it is effective (12%).
3.16 Additional comments about case evaluation (open-ended)
There were a total of 1157 comments written in by attorneys. Respondents included: 358 who
agreed with the statement in question 3.15, 220 who were neutral, and 567 who disagreed. The
most common category overall (258) and within each subgroup involved problems with the
panels—that they were often unprepared or inexperienced and sometimes biased. An
additional129 comments indicated that panels don’t address the merits of the case. There were 89
comments that mediation is preferable to case evaluation. There were 78 comments about
sanctions and how they operate unfairly and 77 comments suggesting that case evaluation is a
waste of time and money. Other comments indicated that it is not suited to all claims (20)—
especially PIP cases—or offered various suggestions for improvement. Suggestions included that it
be voluntary, that fees be raised, that late filings be discouraged, and that case evaluation not be
scheduled too early.
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4. Mediation
4.1 As a litigator, how many mediations have you participated in over the past
five years?
55%
21%
8%
16%
1-10 times
11-20 times
21-30 times
More than 30
2,121 of the 3,096 respondents (69%) had participated in at least one mediation in the past 5 years. The
percentages above are based on the responses of these 2,121 attorneys, as are the rest of the results
presented in the Mediation section of this report, unless otherwise noted
.
5. Mediation
5.1 How frequently do you use mediation prior to filing lawsuits?
1%
3%
4%
17%
34%
41%
Always
Very Often
Often
Sometimes
Rarely
Never
A quarter of the respondents used mediation at least sometimes prior to filing lawsuits.
5.2 Post-filing, how frequently do you voluntarily (without court order) use
mediation in civil cases?
2%
13%
20%
34%
22%
9%
Always
Very Often
Often
Sometimes
Rarely
Never
About a third of the respondents (31%) rarely or never use mediation voluntarily; another third (34%)
sometimes use it voluntarily; and the remaining third (35%) use it often or very often without court
order.
5.3 How frequently are your cases ordered to mediation?
5%
18%
21%
36%
18%
2%
Always
Very Often
Often
Sometimes
Rarely
Never
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5.4 How frequently have you objected to mediation?
<1%
1%
3%
12%
33%
51%
Always
Very Often
Often
Sometimes
Rarely
Never
5.5 If you have objected to mediation, how frequently has a judge nevertheless
ordered your clients to participate in mediation?
13%
18%
15%
22%
20%
11%
Always
Very Often
Often
Sometimes
Rarely
Never
Percentages above are based on the responses of 944 attorneys who had objected to mediation.
5.6 If you have objected to mediation, what are the most common reasons offered
to the court for not participating in mediation? (Select all that apply)
13%
57%
63%
27%
The clients participated in mediation before filing the lawsuit
The amount of controversy did not warrant the cost of mediation
One or more parties needed a legal finding by the court first
Other reason cited
Percentages above are based on the responses of 944 attorneys who had objected to mediation.
Additional reasons were written in by 288 respondents. The most common reason given was that it
was clear the parties were not willing to settle (104). The next most common reason was that the
particular type of claim was not conducive to mediation (59). There were 38 who remarked that courtordered mediation is unnecessary, generally suggesting that involuntary mediation is not conducive
to settlement. Some attorneys (34) opined that mediation was ordered too early in the process to be
successful, as not enough discovery had been conducted to that point. Mediation was seen by 31 as
cost-prohibitive for many parties, who are either unwilling or unable to pay for the process. Only a
small number of respondents (12) criticized the mediators based on bias, incompetence, or
insufficient experience.
5.7 How often has mediation taken place when a summary disposition motion
was pending?
<1%
5%
14%
41%
23%
17%
Always
Very Often
Often
Sometimes
Rarely
Never
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5.8 In cases ordered to mediation, how often have you asked a judge to
recommend a mediator?
1%
3%
6%
25%
31%
34%
Always
Very Often
Often
Sometimes
Rarely
Never
5.9 How often has a judge appointed a mediator without allowing you and
opposing counsel an opportunity to stipulate to your own mediator?
1%
3%
5%
21%
30%
40%
5.10
Always
Very Often
Often
Sometimes
Rarely
Never
How often has mediation provided the following outcomes and how
important are those outcomes?
Mediation helped identify strengths or weaknesses of my cases.
5%
18%
19%
35%
17%
5%
How Often
Always
Very Often
Often
Sometimes
Rarely
Never
39%
32%
15%
9%
5%
How Important
Very Important
Important
Neutral
Unimportant
Very Unimportant
Mediation raised legal arguments that I had not previously considered.
<!%
3%
5%
31%
45%
16%
How Often
Always
Very Often
Often
Sometimes
Rarely
Never
23%
29%
21%
15%
11%
How Important
Very Important
Important
Neutral
Unimportant
Very Unimportant
Mediators have generally provided a fair valuation of my cases.
2%
24%
33%
30%
8%
3%
How Often
Always
Very Often
Often
Sometimes
Rarely
Never
49%
31%
13%
4%
3%
How Important
Very Important
Important
Neutral
Unimportant
Very Unimportant
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Mediators have proposed settlement terms that the parties or their attorneys have not
considered.
1%
7%
16%
47%
23%
6%
How Often
Always
Very Often
Often
Sometimes
Rarely
Never
28%
41%
20%
8%
3%
How Important
Very Important
Important
Neutral
Unimportant
Very Unimportant
Mediation has generally reduced subsequent litigation costs for my clients.
4%
24%
26%
33%
10%
3%
How Often
Always
Very Often
Often
Sometimes
Rarely
Never
52%
30%
12%
4%
2%
How Important
Very Important
Important
Neutral
Unimportant
Very Unimportant
Mediators have opined on how the trial judge assigned to my case would likely rule on
remaining motions or decide the case in a bench trial.
4%
18%
22%
32%
16%
8%
How Often
Always
Very Often
Often
Sometimes
Rarely
Never
15%
37%
27%
12%
9%
How Important
Very Important
Important
Neutral
Unimportant
Very Unimportant
Mediators have provided insights about experience with juries in the location of the trial.
2%
12%
19%
34%
21%
12%
How Often
Always
Very Often
Often
Sometimes
Rarely
Never
13%
34%
28%
15%
9%
How Important
Very Important
Important
Neutral
Unimportant
Very Unimportant
The mediator helped address client expectations.
8%
30%
29%
25%
6%
2%
How Often
Always
Very Often
Often
Sometimes
Rarely
Never
47%
38%
11%
3%
1%
How Important
Very Important
Important
Neutral
Unimportant
Very Unimportant
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Mediation prompted my clients to settle.
2%
27%
30%
32%
7%
2%
5.11
How Often
Always
Very Often
Often
Sometimes
Rarely
Never
53%
32%
11%
2%
2%
How Important
Very Important
Important
Neutral
Unimportant
Very Unimportant
What other outcomes has mediation provided? (Open ended)
There were 379 responses to this question. The largest category (111) indicated that mediation
facilitates settlements. Some attorneys pointed out that the mediator was able to craft a creative
solution that would not have been possible in case evaluation or a trial. The second largest
category (93) expressed opposition to court-ordered mediation, pointing out that some parties are
not willing to settle regardless and the process (and its cost) angers them. Another large group of
respondents (71) observed that mediation resulted in the parties acquiring a better understanding
of the case. Another 37 commented that mediation provided a mechanism for client participation. A
smaller group (21) remarked that mediation resulted in an unjustified additional cost to the parties.
5.12
10%
16%
18%
23%
46%
13%
5.13
43%
41%
5%
5.14
Relative to discovery, mediation has been most effective when it was held:
(Select all that apply)
Before Discovery
In Early Discovery
In Mid-Discovery
In Late Discovery
After Discovery
Rarely/Never
Relative to case evaluation, mediation has been most effective when it was
held: (Select all that apply)
Before Case Evaluation
After Case Evaluation
Rarely/Never
How often have the following factors resulted in continued litigation after
mediation?
Mediation occurred before CE; client wanted a valuation before discussing settlement.
1%
5%
6%
20%
27%
41%
Always
Very Often
Often
Sometimes
Rarely
Never
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The mediator terminated the process too early.
<1%
2%
3%
22%
41%
32%
Always
Very Often
Often
Sometimes
Rarely
Never
The mediator pressed my client too hard toward settlement.
1%
2%
5%
28%
41%
23%
Always
Very Often
Often
Sometimes
Rarely
Never
The mediator did not press my client hard enough toward settlement.
<1%
2%
6%
40%
35%
17%
Always
Very Often
Often
Sometimes
Rarely
Never
Parties appeared ready to settle, but opposing counsel was not.
<1%
6%
15%
37%
27%
14%
Always
Very Often
Often
Sometimes
Rarely
Never
The attorneys appeared ready to settle, but one or more parties were not.
<1%
11%
25%
47%
12%
4%
Always
Very Often
Often
Sometimes
Rarely
Never
Mediation occurred when a dispositive motion was pending.
1%
4%
11%
42%
24%
18%
Always
Very Often
Often
Sometimes
Rarely
Never
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Insufficient time was allowed for mediation.
1%
2%
4%
18%
47%
28%
Always
Very Often
Often
Sometimes
Rarely
Never
Persons with full settlement authority were not at the mediation.
1%
5%
8%
25%
34%
28%
5.15
30%
48%
16%
4%
2%
Always
Very Often
Often
Sometimes
Rarely
Never
To what extent do you agree or disagree with the following statement?
"Overall, mediation is an effective method for resolving civil cases."
Strongly Agree
Agree
Neutral
Disagree
Strongly Disagree
78% of the attorneys agreed with the statement – 30% strongly – that mediation is an effective
method for resolving civil cases. Only 6% disagreed.
5.16
Additional comments about mediation (open-ended)
There were 475 comments written in about mediation. The respondents included 324 who agreed
or strongly agreed with the statement in question 5.15, 80 who were neutral, and 65 who
disagreed or strongly disagreed. The largest category of comments (84) emphasized that
mediation is most effective when it is voluntary and when the parties can choose the mediator.
Some within that group said it should be voluntary because it is expensive and not appropriate for
cases with small damage amounts at stake. Another 53 remarked that mediation is only
successful to the extent there is a skilled mediator. The most common category among those who
disagreed that mediation is an effective method took the position that court-ordered mediation is
unnecessary (28), either because the same result could be obtained in a judicial conference or
the parties could reach a settlement without a mediator. Remaining comments generally offered
suggestions such as promoting increased awareness of mediation’s benefits, ordering it early in
the process to save the costs of discovery, scheduling it after discovery to be more successful,
promulgating a stronger ethical code (addressing confidentiality) for mediators, requiring
individuals with settlement authority to attend mediation, and lowering the costs associated with
mediation.
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Appendix D: Findings from Attorney Focus Groups
Introduction
Focus groups with attorneys were planned to enable the evaluators to obtain a fuller
understanding of some of the results from the attorney survey and to ask follow-up questions.
The focus group discussions also provided attorneys the opportunity to share various
perspectives on the relative value of case evaluation (CE) and mediation (MED).
Attorneys who completed the online survey conducted by SCAO in early 2011 and who
indicated a willingness to participate in a focus group to discuss CE and/or MED and provided
contact information were invited to participate in a focus group. Due to the large number of
eligible attorneys in the southeast region, a random sample of 50 percent of that group was
selected to receive invitations. SCAO issued invitations via e-mail to 366 attorneys on April 4,
2011 and provided them with the locations and dates for the six focus groups to allow them to
select the one that would be most convenient for them. Attorneys who were interested and
available were asked to reply by April 11, 2011.
Acceptances were limited to a maximum of 15-20 per focus group, in an effort to obtain an
optimum number of 8-12 participants per focus group. Confirmation letters, including a map and
directions to the specific location, were sent to those who were accepted. All focus groups were
conducted during the first week of May 2011. The following table shows the dates, times, and
locations for each focus group as well as the number of attorneys who participated.
Date
Time
Location
Number of
Participants
May 2
9:00 – 10:30 AM
Bloomfield Hills
15
May 2
3:00 – 4:30 PM
Detroit
12
May 3
3:00 – 4:30 PM
Gaylord, with videoconference
connection to Traverse City
3
May 4
9:00 – 10:30 AM
Flint
6
May 4
3:00 – 4:30 PM
Lansing
4
May 5
9:00 – 10:30 AM
Grand Rapids
7
The number of participants ranged from 3 to 15 for a total of 47 attorneys (including one
attorney who e-mailed his responses after missing the Grand Rapids focus group). Courtland
Consulting facilitated the discussions, which covered the following topics: selected survey
results regarding CE, relative merits of CE and MED, cost of CE and MED, litigants’ point of
view regarding CE and MED, and suggestions for improvements to CE and MED as well as
other ADR processes. The same set of questions was used in each location.
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This report combines the results from all six focus groups. The questions posed by the facilitators
are shown in italics. Participants generally had experience with multiple courts and most of their
responses regarding ADR were not limited to any one court. However, comments that were
directed to a particular court specifically are included where appropriate.
Selected Survey Results Regarding Case Evaluation
A1. In the survey, 78% indicated that the purpose of CE is to produce a settlement or
resolution. However, only 18% indicated that their clients “very often” or “always” accept CE
awards within 28 days of the CE hearing. Are they accepting after 28 days or not at all?
Attorneys shared some reasons why CE awards are not accepted during the 28 days but may be
accepted later. One reason given is that if you accept, it “shows your cards.” It was suggested
that the defense will sometimes reject the award initially but if the plaintiff accepts it, the defense
will then decide to accept it. In another focus group one noted that it is very rare for plaintiffs to
accept within 28 days and that the defense is more likely to accept. Experiences varied, possibly
due to the various types of cases handled by the participants. Others suggested that the attorneys
may want to test the motion for summary disposition first. Generally, the participants indicated
they were not surprised that the CE awards were not being accepted within 28 days, particularly
when sanctions are unevenly imposed. Several pointed out that the threat of sanctions weighs
more heavily on individual plaintiffs than on large organizations. It’s seen as being very tough on
“the shallow pocket” although collecting the sanction may not be easy.
There was more discussion and general agreement about why the CE awards are not being
accepted at all. A common reason given had to do with the type of case, particularly PIP cases
where there is “always an issue of future benefits.” It was suggested that generally defendants
don’t want a judgment against them; they would rather have dismissals. Many focus group
participants shared their concerns about the numbers the panels come up with and how difficult it
is for either side to accept a number that is not seen as reflecting the true value of the case.
A2. In the survey 81% of attorneys said it was important that CE provide a fair evaluation, but
only 38% indicated that it did so “often” or more. Do you agree that CE isn’t doing a very
good job of providing fair evaluations? Is there a problem with the panels or perhaps the
limited time they have reviewing a given case? (Open-ended comments raised concerns about
panel preparation and bias.) What about specialty panels? Are those automatically assigned or
do you have to request them?
Attorneys with many years of experience pointed out that CE panels used to focus more on what
the case is really worth, but more recently they seem to look for a number they think both sides
can live with. It was suggested that the CE award is “a hammer to encourage settlement rather
than a realistic value to the case.”
There were many criticisms expressed regarding the CE process and the preparation of the
panels. Much depends on the panel members and whether they have the necessary expertise.
Specialty panels are more available in some courts than in others and some courts (such as
Genesee) do a good job of setting up the panels for specific cases. In other courts some attorneys
aren’t aware that they can request a specialty panel. The summaries are often quite long, with
lengthy attachments, and the panel may only have the weekend to review them (as in Wayne).
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Some attorneys file the summary as late as possible in the hope of seeing the opposing attorney’s
summary first. This type of gamesmanship makes it difficult for the panel, even if the late fee of
$150 is paid. The amount of time the panel spends with each case was seen as a problem;
participants pointed out that the standard is 30 minutes, but 15 minutes is typical in Wayne.
Some attorneys pay extra for more time with the panel, but not all attorneys are aware they can
request that.
Relative Merits of Case Evaluation and Mediation
B1. Of the survey respondents, 77% agreed or strongly agreed that MED is an effective
method for resolving civil cases, compared to 48% for CE. MED compared favorably with CE
on all comparable outcomes: providing a fair valuation (60% often or more vs. 38%),
addressing client expectations (67% vs. 44%), and prompting clients to settle (59% vs.
36%).Why do you think that MED was rated as more effective than CE? Does it depend on the
type of case?
There was a strong consensus that MED benefits from more time spent on each case. Having the
parties present—not just the attorneys, as in CE—was also seen to be a major advantage. Parties
have the opportunity to be heard; the mediator can speak privately with both parties; and it is
possible to arrive at other concessions besides just a settlement amount. As one attorney put it,
“The mediator is not imposing something from the top but facilitating the parties to come to an
agreement.”
B2. CE was viewed as most effective after discovery (58%) rather than before (2%) or during
(32%). MED was viewed as most effective during discovery (57%) rather than before (20%) or
after (46%). Do you agree with that timing? Why does the preferred timing differ for CE and
MED?
Most, but not all, of the participants indicated a preference for early MED, then a summary
disposition and then CE if needed. Some pointed out that it depends on the type of case, since
more complex cases require more time to take depositions. It was suggested that early MED
(before discovery) may generally be better for plaintiffs than defendants. Another suggestion was
that early MED is often better because the parties are not yet invested in their positions.
B3. What would increase the efficacy of each ADR process?
Flexibility was the common theme heard from all of the focus groups. Attorneys wanted courts
to avoid the “one size fits all” approach that seem to be common where automatic scheduling
orders dictate the timing and sequence of ADR. Some attorneys praised the Early Intervention
Conference (EIC) pilot that was recently used in Oakland. In that model a volunteer attorney sits
with counsel and the parties to determine what would be best for that case. Others mentioned
Genesee, where counsel can talk to the judges to discuss what ADR would be best. Jackson was
also mentioned as giving choices about which form of ADR and when it should occur.
Suggestions regarding CE specifically included:
•
Impose a page limit on the summary and attachments;
•
Eliminate non-unanimous awards;
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•
Impose the sanctions;
•
Be allowed to select your own panel and the appropriate timing;
•
Would be more effective after the summary disposition.
Suggestions regarding MED specifically included:
•
Strengthening the confidentiality rule in MED to be certain that one can’t disclose the
numbers that are discussed in negotiations;
•
Allow excellent mediators to be on the court-approved list without the required training;
•
Weed out the mediators who are just in it for the money;
•
Some think that MED should always be voluntary (particularly due to the cost).
Cost of Case Evaluation and Mediation
C1. 54% of respondents indicated that MED reduced subsequent litigation costs often, very
often or always, compared to only 36% indicating the same about CE. Does that mesh with
your perception?
Focus group participants generally concurred with the survey results. They pointed out that MED
is more successful in settling cases than CE, so it saves money in the long run since the longer a
case is open the more it costs.
C2. What about the overall costs, including the costs of participating in CE and/or MED?
How much does CE typically add to the cost of the case for the client? How much does MED
typically add to the cost of the case for the client? If it is not possible to assign a dollar range,
what about the relative cost of CE vs. MED? Is one more expensive that the other?
Very few focus group participants offered any cost estimates; most limited their responses to the
relative costs. One attorney estimated that the number of billable hours to prepare the CE
summary ranges from 5 to 25 hours. Another suggested that the defense attorney might charge
$3,000 to $5,000 to prepare for CE while the plaintiff would only pay the $75 fee for the panel;
the cost for MED would typically be $750 to $1,000. Others said the cost depends on the specific
case.
Overall, there was strong agreement that while the direct cost of MED is higher than that of CE,
it usually saves money because it is a more productive process. It was suggested that early
mediation can save money overall by avoiding the costs of discovery. Some attorneys indicated
that they typically submit the same documents for CE and MED and that the same preparation
would also be needed to prepare for a trial. The relative cost may depend on when the case goes
to ADR. A few participants pointed out that while MED saves money when the parties settle, the
cost of mandatory MED can be a problem for parties if they don’t want to be there and they
don’t settle. It was suggested that CE is less expensive and “sometimes that is all you need.”
Whichever process is used, “ADR moves the process faster and saves attorney fees for the
litigants.”
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Litigants’ Point of View on Case Evaluation and Mediation
D1. A litigant who has experience with multiple cases has indicated that CE did not result in a
favorable outcome. This particular litigant did not feel that the panel gave consideration to the
merits of the case and the award only covered his attorney’s legal fees. Concerns were
expressed about the panel being unprepared and the attorney accepting the award without
consulting the client. When sanctions were awarded in the case, the defendant didn’t pay and
the attorneys didn’t follow up to enforce the judgment. How typical do you think these
concerns are for litigants in general? Do these types of concerns vary for plaintiffs and
defendants?
There was strong agreement among focus group participants that this was not at all typical. This
scenario was viewed to be very rare and not reflective of a systemic problem. They indicated that
they would never accept or reject an award without consulting the client.
D2. What have you heard from litigants about their perspective on CE and MED? Did they
understand the CE and/or MED processes available to them? Did they find the processes to be
fair? Did they think that they had adequate opportunity to be heard? Did they think their cases
took more or less time to be resolved?
The most common perception is that CE doesn’t seem like justice to the litigants. They want to
be heard and MED gives them that opportunity. Litigants often feel frustrated because they
accepted something they didn’t like or their case was “solved by an economic squeeze rather
than their day in court.” Some focus group participants suggested that attorneys need to do a
better job of explaining the CE and MED processes and share the opposing attorney’s summary
with them. As one put it, “a lot of complaints are because of poor communication between the
client and attorney.” However, it was added that most lawyers do a good job of explaining the
range of options to their clients. Another concluded that “if the process is fair, the number is less
important.” Still, litigants have expressed frustration with the system overall and why it takes so
long to get their case resolved.
Suggestions for Improvements to Case Evaluation and/or Mediation
E1. What changes would you like to see in Michigan’s use of these ADR methods in the
future? Why?
By far the most common suggestion was for more flexibility regarding the type and timing of
ADR to be used. There was a request for more involvement from the judge or the ADR clerk
early in the case to do “triage” in order to determine whether CE or MED would be best and
when it should occur. They would also like a fast track for cases that are ready to settle without
either CE or MED. It was mentioned that in Kent County the attorneys meet to come up with a
plan before the scheduling order. There was support for there being “different rules for different
types of cases” in contrast to the inflexible, computer-generated scheduling orders being used by
the larger courts. The conclusion was that there shouldn’t be a default to one specific ADR
process.
Although there was a clear preference for greater flexibility, there was much support for some
mandatory ADR. It was pointed out that “some attorneys are ignoring the rules and deadlines”
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and “you don’t want flexibility to result in a lack of accountability.” A minority view was
expressed that ADR is intended to be consensual and that litigants have a right to go to trial if
that is their preference.
Regarding CE, some of the specific changes suggested were:
•
Increase the CE filing fee and the penalty for late submission of the summary;
•
Panels should share how they arrived at the amount of award;
•
Need a court rule statement about the purpose of CE;
•
Need guidelines from the Supreme Court for case evaluators;
•
Greater use of specialty panels and educate attorneys and litigants about the options;
•
Limit the number of pages in the summary and the number of attachments;
•
Remove CE if parties are in agreement about MED;
•
Have option of extension beyond 28 days if there is a good reason;
•
ADR clerks should get feedback about case evaluators to weed out the bad ones.
Suggested improvements regarding MED included:
•
Pool of mediators should be expanded;
•
Make sure parties know they are not limited to the mediators on the court’s list;
•
Law schools need to do more training for mediators;
•
Make sure the right people are at the table—those with authority to settle;
•
Order to show cause if parties don’t show up with the necessary authority.
And finally, there were some suggestions that there be better education of attorneys and
information to clients about the ADR processes and how they work. That might help avoid some
of the frustration that litigants currently experience.
E2. If neither ADR process was ordered...How would you otherwise settle cases? Would you
voluntarily go to CE? Would you voluntarily go to MED? Would more cases go to trial?
Focus group participants indicated that if neither process were ordered they would generally find
a way to negotiate and settle without going to trial. Most didn’t think the number of trials would
increase but thought that cases might take longer to resolve. One attorney said he would “prepare
for trial but leave the door open to negotiation; cases have a way of settling without case
evaluation or mediation.” Some concern was expressed that it would overwhelm the courts if
there was no ADR, resulting in longer dockets.
Very few participants indicated any willingness to go to CE voluntarily. They indicated that CE
still has its purpose with some cases. Many more participants indicated that they would—and
do—go to MED voluntarily.
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Appendix E: Summary of Results from Statewide Survey of Circuit
Court Judges
This survey, developed by Courtland Consulting under the direction of SCAO, was conducted
between June 23, 2011 and July 15, 2011. A memo was sent to circuit court judges throughout
Michigan by SCAO with the URL to Courtland’s online survey. A total of 44 completed surveys
were submitted. In one court, the court administrator indicated that the survey was submitted on
behalf of the judges, so the number of judges participating in the survey is greater than the
number of completed surveys received.
The following summary shows each question in the survey and the analyzed results for each
question. Percentages are based on the number of respondents for each question.
1. In what part of the state is your circuit court located?
N Percent
8 (18%) Eastern Michigan (Arenac, Bay, Clare, Genesee, Gladwin, Huron, Isabella,
Lapeer, Midland, Saginaw, Sanilac, Tuscola)
13 (29%) Southeast Michigan (Lenawee, Livingston, Macomb, Monroe, St. Clair,
Oakland, Washtenaw, Wayne)
6 (14%) Southwest Michigan (Allegan, Barry, Berrien, Branch, Calhoun, Cass,
Kalamazoo, St. Joseph, Van Buren)
4
(9%) Western Michigan (Ionia, Kent, Mecosta, Montcalm, Muskegon, Newaygo,
Oceana, Ottawa)
4
(9%) Mid-Michigan (Clinton, Eaton, Gratiot, Hillsdale, Ingham, Jackson,
Shiawassee)
7 (16%) Northern Lower Peninsula (Alcona, Alpena, Antrim, Benzie, Charlevoix,
Cheboygan, Crawford, Emmet, Grand Traverse, Iosco, Kalkaska, Lake,
Leelanau, Manistee, Mason, Missaukee, Montmorency, Ogemaw, Osceola,
Oscoda, Otsego, Presque Isle, Roscommon, Wexford)
2
(5%) Upper Peninsula
44 (100%)
2. What ADR processes do you use? (Please indicate all that apply.)
N Percent
42 (96%) Case evaluation under MCR 2.403
37 (84%) Mediation under MCR 2.411 (includes what some call facilitation)
4
(9%) Other (not including pre-trial settlement conference): Arbitration (2);
mediation status conference for NH, NM, NP (not asbestos), CB cases only (1);
blank (1)
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3. Approximately what percentage of tort claims (case type N) in your docket do you
order (with a paper order) or refer (without order) to each ADR process?
a. Case evaluation under MCR 2.403
b. Mediation under MCR 2.411
c. Other
Ordered
(Mean)
85%
31%
0%
Referred w/out order
(Mean)
5%
5%
<1%
4. Approximately what percentage of non-tort civil cases (case types C and P) in your
docket do you order or refer to each ADR process?
a. Case evaluation under MCR 2.403
b. Mediation under MCR 2.411
c. Other
Ordered
(Mean)
65%
27%
<1%
Referred w/out order
(Mean)
5%
3%
<1%
5. Of those cases ordered or referred to an ADR process, what percentage actually result
in the process occurring?
a. Case evaluation under MCR 2.403
b. Mediation under MCR 2.411
c. Other (specify): Arbitration (n = 2)
Ordered
(Mean)
77%
77%
90%
Referred w/out order
(Mean)
43%
51%
0%
6. Are your answers to question # 5 estimates or based on court data?
N Percent
39 (93%) Estimates
3
(7%) Based on court data
42 (100%)
7. Of the cases in your docket that go through an ADR process, how many settle as a
direct result of participation in:
a. Mediation
b. Case evaluation
c. Other ADR
N
25
31
2
(Mean )
54% (estimated)
42% (estimated)
100% (estimated) (specify): Arbitration
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8. If case evaluation and mediation are both ordered or referred, what sequence is most
common in your court?
N Percent
9 (24%) Case evaluation followed by mediation
12 (32%) Mediation followed by case evaluation
11 (30%) Both sequences are equally common
5 (14%) Not applicable; our court does not order or refer both processes in one case
37 (100%)
Case Evaluation (The following questions pertain to case evaluation only.)
9. When do you order or refer parties to case evaluation?
N Percent
35 (83%) In the scheduling order
0
(0%) Subsequent to a hearing
4 (10%) Subsequent to settlement conference or pretrial
3
(7%) Other
42 (100%)
10a. Before case evaluation takes place, how often do attorneys in your circuit court object,
such as formally by motion or informally as in a settlement conference, to case
evaluation? (n = 42)
0%
2%
7%
17%
67%
1%
Always
Very often
Often
Sometimes
Rarely
Never
10b. When attorneys object to case evaluation before it takes place, what are the most
common reasons given?
37 responses were provided by 33 respondents. The most common reason (13) was that
the case was not appropriate for case evaluation. Another 11 specifically mentioned cases
seeking equitable relief. Other reasons included scheduling or timing issues (5), cost (4),
and cases that were unlikely to settle (4).
10c. When attorneys object to case evaluation before it takes place, how frequently have
you nevertheless ordered their clients to participate in case evaluation? (n = 39)
10%
31%
5%
31%
18%
5%
Always
Very often
Often
Sometimes
Rarely
Never
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11a. After case evaluation has taken place, how often do attorneys move to set aside an
award? (n =41)
0%
0%
2%
5%
63%
29%
Always
Very often
Often
Sometimes
Rarely
Never
11b. When attorneys move to set aside an award or informally object to the award in a
settlement conference, what are the most common reasons given for discounting the
award?
19 respondents answered this question, with 20 responses. The common reasons
included: improper procedure (7), panel qualifications or bias (5), new evidence (5), and
the amount of award (3).
11c. How often do you grant motions to set aside the case evaluation award? (n = 39)
0%
0%
0%
3%
51%
46%
Always
Very often
Often
Sometimes
Rarely
Never
12. How often do the parties accept case evaluation awards within 28 days of the award? (n
= 41)
0%
17%
29%
46%
7%
0%
Always
Very often
Often
Sometimes
Rarely
Never
13. When parties do not accept the case evaluation award within 28 days of the award and
the case is ultimately disposed by bench or jury trial, how often are sanctions applied?
(n = 42)
12%
9%
29%
31%
17%
2%
Always
Very often
Often
Sometimes
Rarely
Never
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14. How often have the sanction provisions of MCR 2.403 been the primary incentive for
parties to accept the award? (n = 36)
3%
17%
22%
44%
14%
0%
Always
Very often
Often
Sometimes
Rarely
Never
15. Do you use the case evaluation award in settlement discussions w/the parties? (n = 42)
17%
19%
7%
24%
24%
5%
Always
Very often
Often
Sometimes
Rarely
Never
16. In your opinion, which of the following is the primary purpose of case evaluation?
N Percent
9 (21%) Provide a fair valuation of the case (close to the value a jury or judge might
award)
30 (71%) Arrive at a number that the parties can accept (likely to produce a settlement or
resolution)
3
(7%) Other
42 (99%) (less than 100% due to rounding)
17. What is the financial impact to the court of managing the case evaluation process
compared to not using case evaluation?
N Percent
11 (27%) Case evaluation increases the court’s costs
How? 4 indicated court staff time and 1 indicated that it causes delays
20 (50%) Case evaluation reduces the court’s costs
How? 7 indicated that it avoids trials and 6 said it saves time of court staff
9 (23%) Case evaluation has no net impact on the court’s costs
40 (100%)
18. What is the financial impact of case evaluation for the litigants compared to not having
case evaluation at all?
N Percent
16 (39%) Case evaluation increases litigants’ costs
How? No responses were provided
0
(0%) Case evaluation reduces litigants’ costs
How? No responses were provided
25 (61%) Case evaluation has no net impact on litigants’ costs
41 (100%)
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19. When do you think case evaluation is most effectively conducted?
N Percent
4 (10%) Before discovery
6 (14%) During discovery
32 (76%) After discovery
42 (100%)
20. If case evaluation was not mandatory for tort claims (case type N), how often would you
nevertheless order the process? (n = 41)
49%
32%
2%
10%
5%
2%
Always
Very often
Often
Sometimes
Rarely
Never
21. Please rate the quality of the case evaluators who are available to serve on panels for
cases in your court. (n = 42)
31%
48%
17%
2%
2%
Excellent
Very good
Fair
Poor
Unsatisfactory
22. To what extent do you agree or disagree with the following statement: “Overall, case
evaluation is an effective method for resolving civil cases.” (n = 42)
45%
24%
12%
12%
7%
Strongly agree
Agree
Neutral
Disagree
Strongly disagree
23. If your response to the previous question was less than “strongly agree,” how could case
evaluation be made more effective?
12 respondents wrote in 16 responses. The most common category of suggestion (5)
called for better evaluators on the panels. 3 of the suggestions involved sanctions:
expanding them to non-unanimous awards or eliminating dissents to avoid sanctions. 2
suggested using case evaluation selectively as part of ADR. 2 indicated that lawyers need
to take the process more seriously or show a willingness to negotiate a settlement. The
remaining suggestions (1 respondent each) included: creating pre and post-discovery
evaluation; holding parties to stricter timelines; having a mandatory hearing or pretrial if
award is rejected; replacing case evaluation with 2.411 (mediation).
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Mediation (The following questions pertain to mediation only.)
24. When do you order mediation?
N Percent
20 (53%) In the scheduling order
2
(5%) Subsequent to a hearing
14 (37%) Subsequent to settlement conference or pretrial
2
(5%) Other
38 (100%)
25. How often do attorneys in your circuit court object, such as formally by motion or
informally as in a settlement conference, to mediation? (n =38)
0%
3%
3%
24%
55%
16%
Always
Very often
Often
Sometimes
Rarely
Never
26. When attorneys object to mediation, what are the most common reasons given?
23 responses were provided by 21 respondents. The most common category (12) was
there was no chance of settling. 8 respondents mentioned cost as the most common
reason. Other reasons (1 respondent each) included: case does not warrant; clients are out
of the area and do not want to attend; it is not binding.
27. When attorneys object to mediation, how frequently have you nevertheless ordered
their clients to participate in mediation? (n = 37)
14%
38%
11%
16%
5%
16%
Always
Very often
Often
Sometimes
Rarely
Never
28. In cases ordered to mediation, how often do attorneys ask you to recommend a
mediator? (n =39)
3%
8%
13%
36%
28%
13%
Always
Very often
Often
Sometimes
Rarely
Never
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29. In cases ordered to mediation, how often have you appointed a mediator without
allowing the attorneys to stipulate to their own mediator? (n = 38)
0% Always
0% Very often
0% Often
13% Sometimes
32% Rarely
55% Never
30. In cases ordered to mediation, how often have you appointed a mediator but allowed
the attorneys to stipulate later to another mediator of their own choosing? (n = 37)
13%
0%
3%
30%
24%
30%
Always
Very often
Often
Sometimes
Rarely
Never
31. Over the past 5 years, have you observed a change in attorneys’ willingness to
participate in mediation without the court ordering it?
N Percent
26 (67%) Attorneys have become more willing
2
(5%) Attorneys have become less willing
11 (28%) I have not observed any change
39 (100%)
32. What is the financial impact to the court of managing the mediation process compared
to not having mediation at all?
N Percent
3
(8%) Mediation increases the court’s costs
How? 1 mentioned delays; 1 mentioned staff time if they miss deadlines
24 (63%) Mediation reduces the court’s costs
How? 5 indicated avoiding trials; 5 said reducing the time for court staff; 1
said they don’t need to do case evaluation and cases often settle
11 (29%) Mediation has no net impact on the court’s costs
37 (100%)
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33. What is the financial impact to the litigants of participating in mediation compared to
not participating in mediation?
N Percent
13 (35%) Mediation increases the litigants’ costs
How? 3 indicated mediator’s fees (but 2 of them added that parties save
money if the case settles); 1 mentioned additional attorney fees
22 (60%) Mediation reduces litigants’ costs
How? 6 mentioned avoiding trials; 4 indicated lower attorney fees
2
(5%) Mediation has no net impact on litigants’ costs
37 (100%)
34. When do you think mediation is most effectively conducted?
N Percent
5 (13%) Before discovery
14 (35%) During discovery
21 (52%) After discovery
40 (100%)
35. Please rate the quality of the mediators who are on the approved list for cases in your
court. (n = 36)
42%
50%
5%
0%
3%
Excellent
Very good
Fair
Poor
Unsatisfactory
36. If your court refers cases to a Community Dispute Resolution Program center, please
rate the quality of service you believe the center delivers for your court’s litigants (n =
36)
22%
44%
11%
3%
0%
19%
Excellent
Very good
Fair
Poor
Unsatisfactory
Not applicable
37. To what extent do you agree or disagree with the following statement: “Overall,
mediation is an effective method for resolving civil cases.” (n = 38)
71%
18%
5%
3%
3%
Strongly agree
Agree
Neutral
Disagree
Strongly disagree
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38. If your response to the previous question was less than “strongly agree,” how could
mediation be made more effective?
4 respondents offered suggestions:
“I think it only works well when the attorneys agree that mediation would be helpful.”
“It’s only as effective as the parties are willing to compromise and negotiate a
settlement.”
“I don’t know that it can be. The reason I don’t strongly agree is because the cost as well
as the need for the parties to buy into the process limits the cases in which it can be
used.”
“Insurers, especially in medical malpractice cases, simply refuse to participate in any
meaningful way and there are no sanctions for such behavior.”
Overall Assessment of ADR (These questions pertain to both case evaluation
and mediation.)
39. If mediation was demonstrated to be more effective than case evaluation in achieving a
disposition sooner after the ADR event, how often would you order mediation in place
of or prior to case evaluation? (n = 39)
20%
41%
23%
8%
8%
0%
Always
Very often
Often
Sometimes
Rarely
Never
40. Do you have any additional comments or recommendations regarding ADR processes
that you would like to share with the Michigan Supreme Court and the State Court
Administrative Office?
Additional comments were offered by 6 respondents:
“Do NOT change the case evaluation rule. Many insurance companies do not participate
in any meaningful ADR without being ordered to do so and without the threat of
sanctions.”
“Increase late fees to encourage filing on time.”
“In this Court case evaluation is very effective on civil cases and mediation is somewhat
effective on divorce cases.”
“Would like to see case evaluation modified and/or replaced with M.C.R. 2.411.
“Both processes are of value to the resolution of cases.”
“MSC should require all courts to adopt a LAO allowing for mediation, case evaluation
and alternative means of dispute resolution.”
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Appendix F: Data Extraction Tool
CIVIL CASE FILE REVIEW DATA EXTRACTION TOOL
Review Date ____________
Reviewer ______________
CIVIL CASE SUMMARY
1. Court:
__Berrien __Grand Traverse __Isabella __Oakland __St. Clair __Wayne
2. Docket Number: _ _ _ _ -_ _ _ _ _ _-_ _
3. Filing Date: _______________ (mm/dd/yy)
4. Disposition Date: (JIS Courts) ___________ (mm/dd/yy)
5. Case Closure Date: (non-JIS Courts) _______________ (mm/dd/yy) (This is the date
that the order to close the case was filed. It will later be compared to CE acceptance date
or Mediation acceptance date to test 28 day rule.)
6. Final Disposition Filed (court code/description): _________(ABC/abcdef..) and the
(Courtland code – see list below) _________(ABC/abcdef..)
•
BV – Bench Verdict.
•
CJV– Consent Judgment -Voluntary.
•
CJE – Consent Judgment –Result of Case Evaluation (within 28 days)
•
DC – Dismissed by Court.
•
DF – Default Judgment.
•
DP – Dismissed by Party – With No Award.
•
JV – Jury Verdict.
•
SD – Summary Disposition.
•
ST – Settlement/Stip & Order
7. Amount of Relief Sought: $ ____________________ (if available)
8. Final Award Amount: $ ____________________ (if available)
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CASE EVALUATION DETAIL
9. Was Case Evaluation Held?__ No __ Yes
If Yes:
a. Was an Order Issued for Case Evaluation?
__ No __ Yes
b. Date of Order: _________________ (mm/dd/yy)
c. Initial Date Set for CE: _______________ (mm/dd/yy)
d. Number of Times CE Reset/Rescheduled? _____
e. Date Held: _______________ (mm/dd/yy)
f. Did CE result in a mutual agreement disposing of the case (at the table)?
__No __ Yes
g. Unanimous: __ No __ Yes
h. Was there an order disposing this case post 28 days from CE that could be attributed
to the mutual acceptance of the CE award amount? i.e., no other future events
occurred between CE and FINAL DISPOSITION.
__ No __ Yes
If No (to #9): Was a motion filed to remove the case from CE? __ No __ Yes
a. Was the motion granted? __ No __ Yes
b. Date of Order: _______________ (mm/dd/yy)
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MEDIATION DETAIL
10. Was the Mediation Conducted? (court ordered or not court ordered)
__ No __ Yes
If Yes (to #10): Was Mediation Court-ordered?
__ No __ Yes
a. Date of the Order: ________________ (mm/dd/yy)
b. Date Set for Mediation: _______________ (mm/dd/yy)
c. Number of Times Mediation Reset/Rescheduled: ____
d. Date Mediation Was Completed: _______________ (mm/dd/yy)
e. MSR (Mediator Status Report Filed?
__ No __ Yes
f. Did MED result in a mutual agreement disposing of the case (at the table)?
__No __ Yes
g.
Was there an order disposing this case post 28 days from MED that could be
attributed to the mutual acceptance of Mediation award amount? i.e., no other future
events occurred between MED and FINAL DISPOSITION.
__ No __ Yes
If No (to #10): Was a motion filed to remove the case from Mediation? __ No __ Yes
a. Was the motion granted? __ No __ Yes
b. Date of Order: _______________ (mm/dd/yy)
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TRIAL DETAIL
1. Was a Trial Conducted?
__ No __ Yes
If Yes:
a. Was the trial ordered?
b. __ Bench __Jury
c. Date of Order for Trial: _______________ (mm/dd/yy)
d. Original Trial Date: _______________ (mm/dd/yy)
e. Trial Held on: _______________ (mm/dd/yy)
f. Number of Times Trial Reset/Rescheduled _____
g. Date Trial Was Concluded: _______________ (mm/dd/yy)
h. Sanction Requested? (only if CE/Trial occurred)
__ No __ Yes
i. Was there an order disposing this case based on Trial (aka Verdict) post 28 days
from TRIAL that could be attributed to the TRIAL award amount? (i.e., no other
future events occurred between TRIAL and FINAL DISPOSITION)
__ No __ Yes
Case Types included in this study are:
(4) Civil Damage Suits (Torts):
ND – Property Damage, Auto Negligence. All complaints of property damage but
not personal injury involving the use of a motor vehicle.
NF – No-Fault Automobile Insurance. All claims for first-party personal protection
benefits and first-party property protection benefits under the no-fault automobile
insurance act.
NH – Medical Malpractice. All claims involving health care provider malpractice.
NI – Personal Injury, Auto Negligence. All complaints of personal injury, or
personal injury and property damage, involving the use of a motor vehicle.
NM – Other Professional Malpractice. All claims involving professional malpractice
other than health care provider malpractice.
NO – Other Personal Injury. All other claims involving liability for personal injury
not otherwise coded.
NP – Products Liability. All claims involving products liability.
NS – Dramshop Act. All claims involving liability under the liquor control code.
NZ – Other Damage Suits. All other claims for damages.
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(5) Other Civil Matters:
CB – Business Claims. All claims involving partnership termination and other
business accountings.
CC – Condemnation. All condemnation proceedings.
CD – Employment Discrimination. All complaints of employment discrimination.
CE – Environment. All environmental matters such as zoning, pollution, etc.
CF – Forfeiture Claims. All claims of interest in property seized under the
Controlled Substance Act which may be subject to forfeiture.
CH – Housing and Real Estate. All housing, real estate, foreclosure, land contracts,
and other property proceedings (except landlord-tenant and land contract
summary proceedings).
CK – Contracts. All proceedings involving contractual obligations not otherwise
coded.
CL – Labor Relations. All labor-management matters except employment
discrimination.
CP – Antitrust, Franchising, and Trade Regulation. All complaints regarding
unlawful trade practices including but not limited to pricing and advertising of
consumer items, regulation of watercraft, restraint of trade and monopolies,
Consumer Protection Act, Farm and Utility Equipment Franchise Act, franchise
investment law, motor vehicle dealer agreements, and the Motor Fuel Distribution
Act.
CR -- Corporate Receivership. All corporate receivership proceedings.
CZ – General Civil. All other civil actions not otherwise coded.
PC – Proceedings to Restore, Establish, or Correct Records. All proceedings to
restore, establish or correct records which are assigned a new case number (not
brought under an existing case).
PD – Claim and Delivery. All complaints to recover personal property which are
assigned a new case number (not brought under an existing case).
PR – Receivers in Supplemental Proceedings. All proceedings appointing a receiver
which are assigned a new case number (not brought under an existing case).
PS – Supplemental Proceedings. All supplemental proceedings which are assigned
a new case number (not brought under an existing case).
PZ – Miscellaneous Proceedings. All other matters assigned a new case number
(not brought under an existing case), including the following matters: grand jury
and multi-county grand jury.
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Appendix G: Court Administrator Interview Questions
Court Administrator: ____________________________________________________________________________
Circuit Court: _____________________________________________________ Date: _______________________
COURT ADMINISTRATOR INTERVIEW QUESTIONS
Courtland Consulting is working under contract with SCAO to evaluate the comparative effectiveness of civil case
resolution. As we examine selected case files from six circuit courts, we are interested in learning more from each of
the six court administrators about how cases are handled. We also want to obtain your perspective on the ADR
processes. These questions were developed to be used as part of an interview to be conducted in person or by
telephone. However, you are welcome to prepare your responses in written form and submit them via e-mail if you
prefer. We appreciate your assistance and value your input.
1. What ADR processes are used by this court? (Please indicate all that apply.)
o
o
o
o
Case evaluation under MCR 2.403
Mediation under MCR 2.411
Arbitration
Other (explain). Note: if your court uses the word "facilitation" to refer to mediation
under MCR 2.411, please identify that for us.
2. Do you have any reports that you use to monitor ADR that you can share with us?
3. How are torts and other civil cases referred to one or another process?
o
Do you know the % of cases that are “ordered” or simply “recommended” by the
judge to one or more ADR process?
o
Do attorneys interpret judges’ comments/recommendations about going to ADR as an
order, even though there is no signed order?
o
Do you know how many cases (or %) ordered or recommended to case evaluation
and/or mediation/facilitation actually result in the process occurring?
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4. When are key events (e.g., case evaluation, mediation, trial) in a case scheduled (i.e., is
there a scheduling order and/or do they occur throughout the case)?
5. Please tell me about your court’s adjournment policy and practice.
Case Evaluation
6. How many case evaluators are on the roster?
7. Are there subpanels that specialize in particular types of cases?
If yes, which ones?
8. How are cases assigned to a panel?
9. How many cases per day per panel?
10. How are case evaluators paid?
11. How much time does the panel for each case allot?
a. How much time does the panel spend with the parties’ attorneys?
12. Does the court track disposition dates within 28 days of award?
13. How frequently are sanctions sought in case evaluation?
Mediation (if applicable)
14. How does the court determine whether or not to recommend/order mediation?
15. How are cases referred to particular mediators?
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a. Does the judge play any role in identifying and/or selecting the mediator?
16. If the court has a roster, how many mediators are on the roster?
a. How frequently is a mediator assigned?
17. If case evaluation and mediation are both ordered, what sequence is most common?
Why?
a. Does it vary with the type of case?
b. What sequence do you prefer? Why?
Estimated Cost and Workload Impact of ADR
18. What efficiencies do case evaluation and mediation offer the court that may not occur if
neither process was used?
19. From a case flow perspective, how do you think either process promotes better docket
management?
20. What do you see as the impact on the court workload of the ADR processes?
21. In your opinion, does ADR result in reduced costs for the court? (Court costs may
include: case screening time, scheduling, noticing, rescheduling, notifying parties of
awards, time spent convening and managing panels.)
22. What efficiencies does ADR offer the litigants that may not occur if neither process was
used?
23. In your opinion, does ADR result in reduced costs for the litigants? (Litigant costs
include attorney time spent writing a brief, service on other parties, attendance at case
evaluation or mediation, time discussing purpose of processes with parties, time
discussing whether to accept award.)
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Overall Assessment of ADR
24. What do you see as the pros and cons of the ADR processes offered by your court?
25. Are some case types more amenable to earlier disposition through case evaluation and
mediation/facilitation than others?
26. Are there any indirect benefits of ADR for cases not disposed as a direct result of the
ADR process?
27. Are there any particular questions that you think that judges should be asked in our online
survey of judges?
28. Is there anything about offering and managing these processes that you would like SCAO
and the Court to know?
29. Do you have any additional comments or recommendations regarding ADR processes?
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