Article Summary: Repair in Mediation
In his article, Is Legal Mediation a Process of Repair - or Separation? An Empirical Study, and Its Implications, Dwight Golann, Professor at Suffolk University Law School, addresses the differing ways in which law school texts and civil litigators perceive the purposes of mediation. According to Golann, law school texts tend to focus on mediation as a method to repair damaged relationships. By contrast, civil litigators view mediation as a means to facilitate distribution of monetary resources. To assess the veracity of these views, Golann conducted an empirical study to determine how often mediation helps repair relationships, how often mediation leads to a settlement with integrative terms that do not involve a future relationship, and what factors affect whether or not relationship repair is likely. Golann selected cases (excluding those involving domestic relations or collective bargaining agreements) in which parties had filed legal proceedings and the dollar amount claimed was between $50,000 and $5,000,000. Golann also selected experienced commercial mediators (mediators with professional practices), leaders of the Society of Professionals in Dispute Resolution, and mediators assigned cases from court connected programs to mediate the cases in an effort to "maximize the likelihood that the survey would find repairs of relationships."
Golann examined 60 cases involving 32 mediators. The survey sample evidenced an overall settlement rate of 73%. Only 17% of the settlement agreements resulted in relationship repair, however, and only 47% included integrated terms, defined as terms that went beyond a monetary payment but did not result in relationship repair. The mediators indicated that a variety of factors affect relationship repair, including: the relative value of the relationship and the alternatives to the relationship; the stage of the dispute at which mediation occurs; party and counsel attitudes; and whether advance planning took place prior to the mediation.
According to Golann, the uniqueness of the relationship, the attractiveness and availability of other alternatives, the potential for harm to a party's reputation if the relationship is broken, the transaction costs associated with terminating the relationship and beginning a new one, the sunk costs (costs that have already been expended and will not be repaid if the relationship is broken), and the potential that similar problems may accompany any new relationship are all factors that can affect the value of the relationship and ultimately the potential for relationship repair.
Timing of Referral
The timing of referral to mediation can also affect the potential for relationship repair because, as time passes, parties are more likely to file formal complaints. The filing of a formal complaint may result in harsh feelings between the parties. In addition, as time continues to pass, parties are more likely to replace their old relationships with new ones, lessening the need for repair of the relationship involved in the dispute.
Party and Counsel Attitudes
The parties' and attorneys' personalities may also affect the potential for relationship repair. If neither the party nor the attorney believes that relationship repair is important, it is unlikely to occur. To achieve repair, the parties must be willing to listen to each other and try and understand why each party feels the way that it does.
Finally, Golann contends that if the mediator is able to meet with the parties prior to the mediation sessions, the mediator may be able to build a relationship with the parties. During these planning sessions, the mediator may help the parties overcome any hostility that they may have toward relationship repair, gain an understanding of the dispute prior to the mediation sessions, and plan in advance for any additional resources that may be needed to effectuate successful negotiation (i.e. accountants, family members, etc).
While the survey results offer limited support to the theory that mediation repairs relationships, they do establish that relationship repair through mediation is possible and that certain factors affect the likelihood of repair. Golann's results may affect the views taken in both the legal education and civil litigation worlds. The study suggests that civil litigators should recognize the possibility that mediation could facilitate relationship repair, while legal educators should recognize that relationship repair is not necessarily the underlying focus of most mediations. This study, while helpful, is only an attempt to begin analyzing relationship repair in the context of mediation. As Golann concluded, "[m]ore inquiry, and more thinking, on these topics remain to be done."
Dwight Golann, Is Legal Mediation a Process of Repair-or Separation? An Empirical Study, and Its Implications, can be found in 7 Harv. Negot. L. Rev. 301 (2002)