Article Summary: Disputing Irony: A Systematic Look at Litigation About Mediation [1]

The most recent edition of the Harvard Negotiation Law Review includes an innovative study of reported state and federal decisions about mediation from 1999-2003 by Hamline University Professors James R. Coben and Peter N. Thompson. The article, entitled Disputing Irony, A Systematic Look at Litigation About Mediation, provides a basic status report of mediation today—including how mediation statutes are being interpreted by the courts and how effective current statutes and rules are in creating and maintaining a fair and effective mediation process. The data also illustrates the extent to which the mediation process, frequently lauded as an alternative to litigation, has actually created additional litigation.

As the authors intended, their study of the cases in the database provides unique insight into the extent to which mediation has resulted in subsequent litigation, the mediation issues being litigated in the courts, and how judges are balancing the "need for confidentiality in the mediation process" against "the need for evidence when mediation conduct [and communications] become an issue in subsequent litigation." [2]  Their research also revealed some surprising results. For example, there was some evidence that scholarly concerns regarding the mediation process, such as mediator malpractice and the need for the confidentiality of mediation communications, did not appear to align with practitioner and mediation consumer concerns.

The first substantive analysis of the database discusses issues surrounding confidential mediation disclosures. This section includes several examples where a party or mediator contested the disclosure of confidential mediation communications. The authors surprisingly note that few of the decisions in which confidentiality was not upheld involved balancing between "the pros and cons of compromising the mediation process." [3]  The many different contexts in which confidentiality disclosure issues have arisen are also discussed in this section. For example, their statistics demonstrated mediation communications are frequently used in court to prove or rebut contractual defenses such as fraud, mistake, or duress.

However, despite a considerable amount of litigation about confidentiality, the data revealed a surprising lack of concern by parties regarding such confidentiality. In fact, the article reports that 30% of all of the decisions in the database included uncontested mediation disclosures by mediators and others. As the authors note, this data is particularly notable given the amount of scholarly research on the critical importance of confidentiality to the mediation process.

The research also demonstrated that the most commonly litigated mediation issue is the enforcement of mediated settlement agreements. Through reference to multiple cases involving claims of fraud, misrepresentation, undue influence, mistake, unconscionability, and other defenses, Coben and Thompson document the general lack of success parties have had in using traditional contract defenses to avoid the enforcement of mediated settlement agreements. To avoid such litigation and honor self-determination, the authors recommend that mediators and counsel take steps to ensure that all parties are fully aware of the binding and final nature of mediation settlement agreements before entering into them. They also suggest further consideration of a previous recommendation to provide parties with a specified period of time following mediation settlement agreements in which parties can exercise a right to rescind the contract. [4]

Another section of the article discusses litigation regarding the conduct of participants, including attorney misconduct and actions against the mediator. As with the other parts of the article, the authors group the cases into sub-categories to help glean useful information, render practical advice, and encourage further research. For example, the database contained ten claims in which the parties complaint focused on the mediator's attempts to "coerce the parties to settlement" by focusing on the negative consequences of a failure to settle during mediation, a practice known in the field as "reality testing." As Coben and Thompson note, "[i]t is clear that the perspectives of the judges and mediators about the propriety of this settlement technique may be different from the perspectives of the parties." [5]  It is this kind of insight into prior mediation problems, provided in each section and subsection of the study which makes this article particularly useful to practitioners. By allowing mediators and counsel to learn from the misperceptions of previous mediation participants, they can be more cognizant of how their actions may be perceived by parties and perhaps modify their own conduct to avoid the risk of subsequent litigation.

At the conclusion of the article, the authors discuss "lessons learned" from their research, including a list of suggestions for the 10 best practices for mediators, lawyers, and consumers to avoid future litigation about mediation. For example, because of the frequency of third-party impact cases in the database, Coben and Thompson recommend that mediation participants consider the impact their agreements will have on third-parties. Additionally, given the plethora of cases on the duty to mediate and sanction opinions regarding attendance and authority, the article reminds mediators and lawyers to be diligent in ensuring that the decision-makers with authority are in attendance throughout the entire mediation process.

However, this summary only provides a small glimpse into the various types of cases, trends in mediation decisions, and Coben & Thompson's "lessons to be learned" from these "failed mediations." To gain the full insight this study has to offer, readers are strongly encouraged to read the full text of this article in the most recent issue of the Harvard Negotiation Law Review. The full citation for the article is: James R. Coben & Peter N. Thompson, Disputing Irony: A Systematic Look at Litigation About Mediation, 11 Harv. Negotiation L. Rev. 43 (2006).

[1] The full text of this article can be found in the latest edition of the Harvard Negotiation Law Review: James R. Coben & Peter N. Thompson, Disputing Irony: A Systematic Look at Litigation About Mediation, 11 Harv. Negotiation L. Rev. 43 (2006).

[2] Id. at 47. After discussing the different ways courts have approached this issue, the authors recommend, at a minimum, that states and the federal government codify the actions that courts have taken anyway—"allowing third parties to get access mediation evidence…when the mediation defines their legal rights." Id. at 136.

[3] Id. at 66.

[4] Coben & Thompson, supra note 1, at 136 ( citing Nancy L. Welsh, The Thinning Vision of Self-Determination in Court-Connected Mediation: The Inevitable Price of Institutionalization?, 6 Harv. Negot. L. Rev. 1, 5 (2000)).

[5] Id. at 96.