20 Cardozo Journal of Conflict Resolution 1063 (2019)
This article compares a recent five-year dataset (2013-2017) on mediation litigation trends with an earlier dataset (1999-2003) to make some general observations about mediation litigation trends over the last nineteen years, with a specific focus on enforcement of mediated settlements, the topic addressed by the Singapore Convention.
Part II of this article provides a general overview of U.S. mediation litigation trends, including a detailed description of how the databases were created and caveats about their use, a summary of raw numbers, and a review of the common mediation issues litigated in U.S. Courts. Principal conclusions include the fact that litigation about mediation has steadily increased between 1999 and 2017, a time period when new civil filings in state and federal courts have been more or less constant, or in some years declined. Disputes about enforcement of mediated settlements remain the most commonly litigated topic; however, disputing about enforcement has significantly declined overall in proportion to all litigated mediation disputes.
Part III offers a detailed examination of mediated settlement enforcement litigation, including types of enforcement disputes, defenses to enforcement, the enforcement-confidentiality connection, and significance of the subject matter of the underlying dispute. Principal conclusions include the fact that mediated settlements continue to be enforced at a very high rate—68% on average for the 2013–2017 time period. The frequency with which parties raise “traditional” contract defenses such as whether there was a meeting of the minds or mistake, as well as challenges to fundamental fairness of the process through fraud or duress, have declined. In their place are a panoply of procedural and jurisdictional defenses which have increased in number as mediation gets institutionalized in statutes and court rules. As was true in the original 1999–2003 dataset, cases involving mediator malfeasance are exceedingly rare, and with a 95% settlement enforcement rate, virtually always a loser for the challenging party. Surprisingly, cases raising both enforcement defenses and confidentiality issues were far less common in 2013–2017 compared to 1999–2003, and settlement enforcement far more likely in such cases in the recent time period.
Part IV applies lessons gleaned from the litigation data to evaluate the choices made by the drafters of the Singapore Convention. From my perspective as a chronicler of “mediations gone bad,” there is much to praise in the drafters’ efforts.
Coben, James, "Evaluating the Singapore Convention Through a U.S.-Centric Litigation Lens: Lessons Learned from Nearly Two Decades of Mediation Disuputes in American Federal and State Courts" (2019). Faculty Scholarship. 470.