We ADR junkies have become fond of quoting a statistic that “98% of all cases settle.” Trouble is, it isn’t true. I’ve said it in trainings, so I’m responsible for perpetuating this lie. We wandered into this innocently enough. For some years now, courts, including Michigan’s State Court Administrative Office, have released statistics indicating that fewer than 5% of all civil cases actually go to trial that results in a verdict. In our zeal to promote ADR, we assumed this meant that the other 95% settled. But of course that’s not true; any litigator will tell you about their motion practice and of how many cases are disposed of by summary disposition. In addition, there are default judgments (which don’t go to trial) and any number of reasons why a case might be dismissed before trial.

So I’m trying to choose my words more carefully. It’s fair to say that “most cases are resolved short of a trial.” It’s also fair to say that many more cases are settled than are resolved by verdict. But I’ve wondered, just how many cases are settled, as opposed to dismissed?

Now we have some data based on Michigan circuit court cases to answer that question. As part of its research on the effectiveness of case evaluation and mediation, the study commissioned by the State Court Administrative Office culled nearly 400 civil (non-domestic) cases from around the state to analyze how a case ends. Here’s what they learned (see 23 of the Report):

O Where neither case evaluation nor mediation was used, 45% of all cases still settled. We’ve always known that, even without a mediator’s intervention, some percentage of cases would settle on their own. This is also a sign that, contrary to some mediators’ concern, lawyers are still able to negotiate settlements and have not surrendered all their negotiation skills to the mediator.

O When the case went to mediation, a whopping 84% settled in mediation, and none of the rest went to trial.

O A portion of all cases filed are disposed of via summary disposition, and a higher proportion are dismissed by default or some other reason. Of cases not ordered to case evaluation or mediation, 11% are resolved by summary disposition, 3% by trial verdict, and 41% are dismissed for some other reason, including a default judgment. Cases that went to ADR had proportionately lower summary disposition rates. Thus, it’s fair to say that a case has no more than a 1-in-10 chance of being dismissed by summary disposition.

O Interestingly, when a case went both to case evaluation and mediation, it was more likely to end up in court: 10% of those cases went to trial verdict, whereas none of the cases that went only to mediation ended up in court.

We can’t say, “Most cases settle.” An accomplished litigator in one of our trainings said in his mediator opening statement, “Most cases settle, so it’s not a matter of whether your case will settle, but when.” I thought that was very effective, so I’ve used it in my mediations. But now I need to modify it: “Most cases that get this far, settle …”

We can say that most cases that go to case evaluation and/or mediation settle. We can say that very few cases go to trial. We can say that cases are more likely to be settled—through negotiation, mediation or case evaluation—than disposed of by any other means, such as a dismissal, default judgment or summary disposition.

ADR is effective. We just need to be careful not to over-sell it.

New Standards of Conduct for Mediators were proposed by Michigan’s State Court Administrative Office last week. They can be viewed at by clicking on the title above, or by going to this web-site:  http://courts.michigan.gov/scao/features/mailings/2011/11-10-11/MediatorStandardsOfConduct.pdf.

 The public comment period runs through the end of February 2012. I hope many people comment on them, because they break new ground and could be a significant contribution to the field of mediation nationally.
These Standards break new ground in that they apply to both general civil and domestic relations mediators. We could not find a set of Standards of Conduct for Mediators that did this, so we basically developed our own. I had the privilege of serving on the sub-committee that developed these standards, and on the larger committee that refined them for general approval, both convened by the State Court Administrative Office.
The American Bar Association joined with the Association for Conflict Resolution and with the American Arbitration Association to develop the Model Standards of Conduct for Mediators; these were first published in 1994, and revised in 2005. Michigan’s current Standards of Conduct for Mediators are based on these Model Standards. However, they do not address some of the ethical issues that arise in divorce mediation, so divorce mediators are advised to consult the Model Standards of Practice for Family and Divorce Mediation, which were first developed by The Association of Family and Conciliation Courts in 1984, and thoroughly revised in 2000 by a consortium of family mediation organizations, including the ABA’s Family Law Section, the Academy of Family Mediators and the AFCC.
Our sub-committee, comprised of Zena Zumeta, Barbara Johannessen, Susan Butterwick and myself—all mediators and mediation trainers who do both domestic and general civil mediations—yearned for one set of Standards that would cover all aspects of mediation. Not only is it cumbersome to be familiar with two sets of Standards, but some cases – such as child neglect placement or adult guardianships — do not clearly belong under either Standards. Barb J gets credit for undertaking the daunting task for overlaying the two sets of Model Standards to try to develop a common thread. We ultimately opted to adhere to the format of the general civil Model Standards, with its nine categories, incorporating many of the principles from the Family and Divorce Mediation standards.
We followed some “guiding principles” as we developed these standards:
• Adhere to Model Standards language as much as possible; unless we had a good reason to alter the language, we retained the Model Standards phrasing. Thus, many portions of these Michigan Standards mimic the Model Standards, including the first sentences of most of the nine major Standards.
• Knowingly redundant; some principles apply to more than one topic so we mentioned the same principle in two locations. For example, the requirement that the mediator continually assess whether a party is physically or emotionally unsafe is found under both “Competence” (IV.B.) and under “Quality of the Process” (VI.A.4.a)
• Distinguish between “parties” and “participants;” the mediator owes a slightly different obligation to the decision-makers in the mediation than to the other people who attend the mediation so we carefully determined where that line was. Thus, the Standard on Self-determination applies only to parties (Standard I), whereas the Standard on Impartiality (Standard II) applies to all participants.
• Distinguish between “shall” and “should.” In general, the first sentence of each standard is the “shall” – the ethical principle – and subsequent provisions flesh out the principle with both “shall” and “should.” Thus, a mediator shall conduct a mediation impartially, and should neither give nor accept a gift from a party (II.A.2).
• Everything in this set of standards is part of the standard itself, in contrast with the Model Standards, which include both principles and commentary.
• Everything is stated as a standard, and not simply a suggestion. Thus, for example, we omitted the observation in the Model Standards (I.A.2.) that a mediator should make parties aware of the importance of consulting outside experts.
• Omit general statements; e.g., we omitted this statement found in the Model Standards: “The role of a mediator differs substantially from other professional roles.”
The one aspect of these Proposed Standards that differs significantly in format from the Model Standards is Standard VI, “Quality of the Process.” In the Model Standards, this Standard simply enumerates a variety of topics 1 through 10, dis-connected from one another. We chose to organize the principles in this section under several sub-headings: Diligence and timeliness; Participants and participation; Procedural fairness; Safety and appropriateness of mediation; and the Role of the mediator. We did this to make these Standards “user-friendly,” so that a mediator who needs specific advice can more readily find it in the Standards.
While these proposed Standards contain much more information than Michigan’s current Standards, which are only two pages long, they do not depart significantly from either set of Model Standards in substance. However, for general civil mediators who have never consulted the Family and Divorce Mediation standards, the provisions relating to safety and well-being of participants, and reporting suspected abuse, will be unfamiliar.
The most challenging aspect of these Standards for the committee concerns the role of the mediator: when a mediator offers to propose a resolution, is the neutral still acting as a mediator, or is the neutral now serving in another role, namely, as an arbitrator? The proposed Standards advise a mediator to undertake an additional role carefully, mindful of maintaining impartiality and party self-determination (VI.B).
Michigan mediators would do well to review these proposed Standards carefully, to consider whether these articulate the Standards of Conduct that should guide Michigan mediators. Some courts’ ADR Plans (such as Kent and Grand Traverse) permit a court to remove a mediator from the court roster for failing to adhere to the Standards of Conduct for Mediators, so these Standards may not be merely advisory.
It is hoped that these Standards set a high bar for the unregulated “profession” of mediators, instilling public confidence in mediators and making us proud to be practitioners of this wonderful process.

Kudos to Ameneh Bahrami. She chose not to exact retribution on the man who attacked her, even though she had the legal system behind her. A few years ago, Ms. Bahrami rejected repeated marriage proposals from a fellow university student named Majid Movahedi. In retaliation, Movahedi threw acid into her face, severely disfiguring and blinding her. She had Movahedi prosecuted, and he was convicted. What makes this story even more interesting is that this occurred in Iran, and Ms. Bahrami is Muslim. Islamic Sharia law permits “qisas,” familiar to readers of the Hebrew Scriptures as “eye for an eye” retribution-in-kind. In this case, that was literally the sentence: the court ordered that five drops of sulfuric acid be placed in each of Movahedi’s eyes. Last week, when the deed was supposed to be done, Ms. Bahrami stopped it at the last minute, announcing that she had instead forgiven her attacker, and did not want revenge.
She has not released him from the consequences of his actions. She believes the man has not changed and is still dangerous, and wants him to spend his life in prison. She is also requesting financial compensation, as her future economic prospects are grim. (Read more at http://www.guardian.co.uk/world/2011/jul/31/iran-acid-woman-pardons-attacker)
Exacting retribution is a basic human instinct of our fallen nature: you hurt me, so I want you to hurt too. In fact, I may want you to hurt even more than you hurt me, so Levitical law – which permits “an eye for an eye, a tooth for a tooth” – is actually a limitation on man’s insatiable desire for revenge. The most powerful way to stop the revenge cycle is forgiveness, exemplified by, and made possible through, Jesus Christ. Christians agree with this notion, but often in our hearts we still want revenge. This Muslim woman is a humbling example to us. She said she was motivated by the Koran: “The Koran gives you the right to retribution. But this very Koran also encourages you to pardon, since pardoning is one of the highest moral standards.” Christians have an even stronger reason to forgive: not only is it commanded by our holy book, the Bible, but it is exemplified in our God, Jesus Christ.  May Ameneh Bahrami’s pardon of her attacker serve as a reminder to all of us to rid our hearts of any desire for revenge. Consequences, yes; vengeance, no.