Academic journal article Vanderbilt Journal of Transnational Law

Practitioners' Perception of Court-Connected Mediation in Five Regions: An Empirical Study

Academic journal article Vanderbilt Journal of Transnational Law

Practitioners' Perception of Court-Connected Mediation in Five Regions: An Empirical Study

Article excerpt

TABLE OF CONTENTS

  I. INTRODUCTION                                               999
     A. Summary of Findings                                    1001
 II. SURVEY DATA COLLECTION METHOD                             1002
     A. Court Mediation Costs                                  1004
     B. Rationale for Introducing Court Mediation Programs     1006
III. SURVEY FINDINGS: CONFIDENCE, FAIRNESS, AND EFFICIENCY     1007
     A. Confidence in Court Mediation Programs                 1007
     B. Fairness                                               1008
     C. Efficiency                                             1010
 IV. SURVEY FINDINGS REGARDING STRENGTHS AND CHALLENGES        1012
     OF COURT MEDIATION PROGRAMS
     A. Key Achievements in Mandatory and Voluntary Mediation  1013
        Programs
        1. Achievements--Mandatory Programs                    1013
        2. Achievements--Voluntary Programs                    1014
     B. Key Challenges of Mandatory and Voluntary Programs     1015
        1. Challenges--Mandatory Programs                      1016
        2. Challenges--Voluntary Programs                      1018
  V. SURVEY FINDINGS: PRACTITIONER SUGGESTIONS FOR IMPROVING   1019
     COURT MEDIATION PROGRAMS
     A. Enhanced Mediator Training                             1019
     B. Public Education                                       1021
     C. Financial and Organizational Resources                 1021
     D. Rewards and Incentives                                 1022
     E. Flexible Settlement Arrangements                       1023
     F. Access                                                 1023
     G. Ongoing Evaluation                                     1023
 VI. CONCLUSIONS                                               1024

I. INTRODUCTION

Drawing on a three-year empirical study, this Article explores the attitudes and perceptions of practitioners implementing court mediation programs in five regions of the world. The aim of the survey is to provide insights into the dynamics, challenges, and lessons learned from the perspectives of those directly engaged in the work of administering, representing, and mediating civil claims. It aims to respond to calls for data regarding the relative effectiveness within and between alternative dispute resolution (ADR) program types, including mandatory and voluntary programs, and for empirical studies of the effectiveness of ADR, especially outside of the United States. (1)

The principal finding of this Article, based on survey data and follow-up questions, is that from the perspective of the practitioner, both mandatory and voluntary mediation programs are perceived with relatively equal levels of confidence, perceptions of fairness, and of efficiency. While slight variation exists such that practitioners report higher levels of confidence in mandatory mediation programs (70 percent) as opposed to voluntary programs (64 percent), and higher perceptions of efficiency with respect to voluntary programs (77 percent) as opposed to mandatory programs (68 percent), both regard voluntary (81 percent) and mandatory (82 percent) mediation programs with relatively equal perceptions of fairness. (2)

The findings of this Article echo recent insights from scholars of civil mediation reform. In particular, the provision of high-quality mediation coupled with contextual understanding will have a positive impact on meaningful outcomes in increasingly complex forms of mediation. (4) Moreover, the relative advantages and disadvantages of mediation in a given jurisdiction vary according to the functioning of the underlying national civil litigation system.

The survey faces a number of limitations including the fact that it represents a small-n sample, and as such, the findings cannot be considered generalizable. In addition, as prior studies have noted, self-reported perceptions are subject to bias and statements may not always reflect actual practice. …

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