Originally from World Arbitration And Mediation Review (WAMR)

Preview Page

MEDIATION LITIGATION TRENDS:

1999–2007
By James R. Coben and Peter N. Thompson*

I. INTRODUCTION
In the Spring of 2006, we published the results of our national study on
the reported judicial opinions addressing mediation issues from 1999 to
2003.1 Our article was entitled Disputing Irony: A Systematic Look at
Litigation About Mediation. We, of course, found it ironic and unfortunate
that mediation, a process designed as an alternative to litigation, can, in
some circumstances, encourage rather than eliminate additional litigation.
The study was designed to address a number of issues. First, to what extent
does the mediation process create as opposed to resolve subsequent
litigation? Where is this litigation taking place, and what issues are being
litigated? What can we learn from the litigated cases about the fairness of
the mediation process and about the proper roles and conduct for counsel
and for the mediator? Finally, how are the courts dealing with the conflict
between the need for confidentiality in the mediation process and the need
for evidence when mediation conduct becomes an issue in subsequent
litigation?2
II. 1999–2003 FINDINGS
We reached the following conclusions based on the 1999–2003 data:
• Litigation involving mediation issues increased at a rapid rate from
172 opinions in 1999 to 335 in 2003, a ninety-five percent increase.3
• Although there was litigation involving mediation throughout the
country, most of the litigation in this five-year period took place in a
few states with Texas (178 state and federal opinions), California
(134 state and federal opinions), and Florida (112 state and federal
opinions) leading the way.4