Study: Mediation favored; style fitting litigants’ status may be better

A novel Indiana study finds judges, lawyers and mediators broadly agree that mediation is likelier than trial proceedings to provide fair and satisfactory results for couples in family law cases. Researchers also suggest that mediators may be able to further improve outcomes by tailoring their styles to fit litigants’ circumstances.

Quintanilla

Indiana University Maurer School of Law professors Victor D. Quintanilla and Amy G. Applegate in September presented findings culminating a multiyear research project to annual meetings of the Indiana Association of Mediators and the Indiana State Bar Association. Their research polled nearly half the state’s trial judges and more than 100 attorneys and mediators. The researchers said the study is the first of its kind.

Among the findings, Quintanilla said, “Judges, lawyers and mediators’ expectations are powerfully shaped by whether parties are represented or not, and judges, lawyers and mediators anticipate a form of social dilemma and challenges for unrepresented parties who are litigating against represented parties at trial.”

The study also found those surveyed believed mediation provided “greater fairness, outcome satisfaction, and lower cost” than trials, he said. “They expect that the parties, regardless of their represented status, will have much more favorable experiences during mediation as compared to trial.”

Applegate

Applegate, who teaches mediation and practices as a mediator, said that while conclusions can’t be drawn yet from the survey, results suggest that mediators may have a preferred style of handling cases that may not always be the best fit for the parties before them. “It’s a really interesting discussion we’re going to be having,” she said.

“People really need to focus on this question and be thoughtful and be mindful: “‘What do these parties need me to do?’”

A facilitative mediator, for example, works toward a negotiated outcome that the parties create, but typically does not offer opinions or predict what might happen if the case were to go to trial. An evaluative or directive mediator directs the parties’ negotiations and more actively evaluates the parties’ proposals and how they might fare in court.

The study found, for instance, that when neither party was represented, an evaluative approach was perceived to better satisfy the litigants. However, when both parties had lawyers, a facilitative style was perceived to be far preferred.

“I would recommend mediators consider what the parties need when figuring out how to mediate a case,” Applegate said.

Loyd

Indiana Association of Mediators President Megan Wells said the study revealed some unexpected results. Among them, she said mediators were surprised by data showing that judges perceived little difference in fairness for litigants whether or not they were represented by counsel.

Views from the bench

Johnson Circuit Judge Mark Loyd said the study — which included videos using professional actors as litigants, judges and lawyers to stage court scenarios that participants viewed to score their perceptions — grew from efforts launched years ago by the Indiana Judicial Center’s Alternative Dispute Resolution Committee. “I found it to be a broader and more interesting research project than I ever thought it could be,” he said.

Loyd said the study will further educate judges on the effectiveness of ADR, but it also may impact not just choices of mediation styles depending on the status of litigants, but also other forms of ADR that might better suit a given situation. He noted that in his court, he’s had success using nonbinding arbitration in certain instances.

“There are those cases that have an emotional flame to them, whether it’s custody or otherwise, where the parties say, ‘Judge, we’re not going to be able to mediate this,’” he said. Rather than wasting time, money and effort on a mediation unlikely to succeed, nonbinding arbitration allows the parties to present their case and await an arbitrator’s ruling. Parties have 20 days to accept or reject the decision. If either party rejects, the decision is sealed so the judge won’t be prejudiced in any future proceedings.

Loyd said the use of private judges is another ADR option he wishes more litigants would consider. “If you want a full-day divorce hearing in Johnson Circuit Court, right now you’re looking at a February or March setting,” he said. “If you want a private judge, you can probably get your hearing next week.”

Magistrate Judge Tim A. Baker of the U.S. District Court for the Southern District of Indiana said it’s clear in his experience mediation works in federal court, where fewer than 2 percent of all disputes go to trial. “Parties like it because it’s quick. It’s fair, and it brings a resolution to a dispute that probably none of the parties really want to be involved in.”

Baker isn’t involved in the IU survey, but he participated with other state and appellate judges in a recent Indianapolis Bar Association program in which they discussed what judges expect in mediation. “It’s a skill and an art,” he said of mediating, with the keys being attorneys who’ve prepared themselves and their clients, and who can move between litigating and mediating.

“Mediation and settlement has been with us awhile, but it’s not really been a skill law schools have stressed as much as maybe they should have,” Baker said. The toughest cases for him are those in which opposing counsel haven’t communicated before mediation. “Lawyers often come in and they’re in different universes.

“The goal is to get them in the same ballpark. … When that happens, it’s like two magnets that start to attract. The posturing goes away, and both sides can see a settlement right there, and they can reach out and grab it.”

Baker

While the benefits of ADR have been long recognized, the researchers said the study could give practitioners new insights into best practices.

“The way the study was designed allowed all participants leeway for discretion and the power to decide what should happen in a dispute, and getting at their own preferences for how to handle these cases and what should happen,” Quintanilla said.

“This was, and continues to be, an important research project being done by a community of judges, attorneys and mediators in the state that is leading the way,” Applegate said. “This kind of research is first in class.”•