One of the most interesting mediation articles I’ve read was called “Disputing Irony” by Prof. James Coben, 11 Harvard Neg. L. Rev. 43, 98 (2006). He and his team at Hamline Law School surveyed all the U.S. appellate court cases, state and federal, 1999-2003, that mentioned “mediation,” to see why cases that should have ended in mediation were still being litigated (the “disputing irony”). Almost half of these cases involved an attempt by one party to get out of the mediated agreement, where the question was enforceability. Another portion addressed concerns about confidentiality; in many cases, testimony regarding statements made in the mediation came into the trial court proceeding as evidence, without objection.
Professor Coben has continued to monitor litigation about mediation, and earlier this year he compared what he observed 2013-2017 to what he saw 1999-2003, when mediation was just catching on in U.S. courts. “Litigation About Mediation: A Case Study in Institutionalization,” 28 Dispute Resolution Magazine 18 (January 2022). The first obvious change is the increase in the number of cases; in 1999, they found 172 cases, but by 2017, it was 891. Twenty years ago, questions about enforceability comprised 47% of the cases; more recently, it had decreased to 39%. He found that the likelihood that a settlement will be enforced in the face of an alleged defense increased from 57% to 69% of the time. But, interestingly, standard contract defenses like fraud, mistake, and duress have declined, while procedural defenses have increased.
Concerns about confidentiality declined, suggesting to Prof. Coben that “confidentiality frameworks for mediation are working sufficiently and predictably for parties.”
Questions about fees, costs and sanctions all declined, while procedural questions like whether the court had jurisdiction increased.
Most notably for mediators, litigation about mediators continues to be virtually non-existent. Of the few cases asserting mediator misconduct, none has succeeded.
As his title implies, Prof. Coben sees all of this as a sign that mediation has become institutionalized as part of the ADR landscape.