If You Build It Will They Come? An Empirical Study of the Voluntary Use of Mediation, and Its Implications

A generation ago American litigants did not often go to mediation voluntarily. Advocates of the process predicted, however, that as disputants became more familiar with mediation, they would opt to use it more often. But is this true? Virtually no data exists about how often litigants voluntarily choose to mediate legal disputes, whether mediation use varies in different kinds of cases, and what motivates litigants’ decisions whether to mediate or not. This article presents information gathered from lawyers in 175 cases. The study focused on the most common types of litigation in courts of general jurisdiction, tort and contract cases, and also complex litigation.The study revealed surprising patterns. Litigants elected to mediate two-thirds of tort cases, but only one-quarter of contact cases and less than half of complex business disputes. The cases that went to mediation in all three categories closed more slowly than cases that did not, and most parties opted to begin with a joint session, a format inconsistent with reported trends. The article argues that lawyers now make individualized decisions whether to mediate, based on differences in the nature of the parties, issues, and frequency of adversarial events in each type of litigation. It argues that the special nature of parties and issues explain the high rate of mediation of tort cases, while the much lower rate of contract mediation stems from the fact that most cases are essentially collection actions. It finds large differences in level of adversarial activity between cases that go to mediation and those that do not. The article goes on to analyze the implications of the results for court mediation programs and lawyers’ future use of private mediation