Mitchell Hamline Open Access

We searched the Westlaw databases "allstates" and "allfeds" for the term "mediat!" for the years 1999 to 2005 and found a total of more than 13,000 entries. After reviewing the Westlaw summary results list for each entry, we excluded opinions which merely referred to mediation or a mediator. We read each of the remaining cases, but discovered that many did not involve a significant mediation issue. Some of the opinions used the term mediation or mediator, but upon closer analysis were found to involve a neutral that acted as an arbitrator, or even as a judge. Such cases were not included in the database. We selected 2219 cases that implicated mediation issues and included them in the database. For each of these cases, the authors completed a questionnaire that reported information on a number of variables.

The 2219 cases were placed in one of nine subject matter categories:

• Personal Injury/Tort
• Contract/Commercial
• Family Law
• Employment (including harassment and discrimination claims)
• Estate
• Malpractice
• Tax/Bankruptcy
• IDEA Claims
• and Other

The specific issues addressed in each case were reported and separated into the following categories:

• enforcement of an alleged mediation agreement
• mediation sanctions
• duty to mediate
• mediation confidentiality
• mediation ethics or malpractice in the conduct of the mediation
• mediation/arbitration issues
• fees
• condition precedent
• or other

Many of the cases involved more than one issue. For example, numerous cases involved the issue of whether compliance with a statutory or contractual mediation clause was a condition precedent and created a duty to mediate before bringing suit. When the case involved an enforcement issue, a number of other issues relating to defenses raised were reported.

Most litigated issues about mediation are handled at the trial level, usually without any reported opinion. As would be expected, most of the opinions in our database came from appellate courts (1537, including 166 state supreme court cases), although we did find 682 trial court opinions. Most of the trial court opinions (565) were from federal courts.

Related articles available at Social Science Research Network (SSRN):

Disputing Irony: A Systematic Look at Litigation About Mediation Coben, James Richard and Thompson, Peter N., Disputing Irony: A Systematic Look at Litigation About Mediation (2006). Harvard Negotiation Law Review, Vol. 11, p. 43, Spring 2006.

Mediation Litigation Trends: 1999-2007 Coben, James Richard and Thompson, Peter N., Mediation Litigation Trends: 1999-2007 (September 9, 2011). World Arbitration & Mediation Review, Vol. 1, No. 3, p. 395, 2007.