James Coben and Peter N. Thompson, Disputing Irony: A Systematic Look at Litigation About Mediation, 11 Harvard Negotiation Law Review 43 (Spring 2006)
Welcome to the Mediation Case Law Project at Hamline University School of Law. This site is devoted to examining the lessons that can be learned from "failed mediations". Whether you are a mediator, a lawyer representing clients in mediation, or a mediation consumer, the phenomena of litigation about mediation is something you ignore at your peril. For a systematic examination of mediation litigation trends, please read Disputing Irony: A Systematic Look at Litigation About Mediation, 11 Harvard Negotiation Law Review 43 (Spring 2006), authored by Hamline Professors James Coben and Peter Thompson.
On this web site you will find the following tools:
- A database containing all mediation cases reported on Westlaw where U.S. state or federal judges were forced to decide a disputed issue about mediation (1,223 cases between 1999 and 2003; an additional 800+ cases from 2004 and 2005 are soon to be coded and added to the database). You can download the database (its a searchable excel file) and quickly find cases about particular mediation subjects in specific jurisdictions.
- Written summaries of the most significant mediation cases (1999 to today), organized in a variety of user-friendly ways (by type of mediation dispute; alphabetical; by year).
- Teaching videos produced by Professor James Coben and the Minnesota State Bar Association. Each video, typically less than three minutes in length, focuses on a single reported mediation case and attempts to illustrate what went wrong at the mediation that resulted in litigation. The videos are wonderful teaching tools - suitable for academic classes, mediation training, or continuing education courses.
A Quick Review
Realizing that there was a treasure trove of data in the large body of judicial reflection on mediation, we decided to systematically try to analyze mediation case law. As described in more detail when you click on the database link above, we ended up compiling 1223 state and federal court mediation decisions available on the Westlaw databases "allstates" and "allfeds" for the years 1999 through 2003. In this five-year span when general civil case loads were relatively steady or declining nationwide, mediation litigation increased ninety-five percent, from 172 decisions in 1999 to 335 in 2003.
The mediation issues being litigated are quite diverse. We expected, and indeed found, large numbers of opinions about mediation confidentiality (152), enforcement of mediated settlements (568), duty to mediate (279), and sanctions (117). However, we did not anticipate the significant number of decisions addressing mediation fee and cost issues (243), ethics/malpractice (98), the intersection between mediation and arbitration (88), the procedural implications of a mediation request or participation (50), or acts or omissions in mediation as a basis for independent claims (20).
We were surprised by how frequently courts consider evidence of what transpired in mediations. There are over 300 opinions in the database in which courts considered mediation evidence without either party raising confidentiality issues. Moreover, mediators offered testimony in sixty-seven cases, with objections raised only twenty-two times, and the evidence was precluded in only nine cases. This rather cavalier approach to disclosure of mediation information is certainly at odds with the conventional wisdom positing that confidentiality is central to the mediation process.
Equally surprising was the dearth of cases addressing mediator misconduct, which was asserted as a contract defense only seventeen times in five years. Either the concern about coercive mediators is unwarranted or the litigation process does not provide an appropriate forum to address this issue. Most of the enforcement cases raised traditional contract defenses. One general conclusion to be drawn from the dataset is that in litigation, existing legal norms force defects in the mediation process to be framed in terms identical to those used to address issues that plague unfacilitated party-bargaining. Thus, when parties attempt to enforce mediation settlements in court, the litigation focuses on typical contract issues, such as claims of unenforceable agreements to agree, failure to have a meeting of the minds, fraud, changed circumstances, and mistake.
