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Docket Management 101: Case Referral

By Nancy Neal Yeend and Eileen Pruett

2/20/2009

Timing

With respect to timing of DR processes, especially mediation, it is well documented that the earlier the referral the higher the settlement rate. Studies of small claims, county and justice courts found that pre-hearing mediation sessions, as opposed to “same-day as trial mediation,” experienced higher settlement rates. Pre-hearing programs that provided mediation in advance of the court date experienced settlement rates of between 75 and 92 percent; however, mediation programs that provided services on the day of the hearing only averaged 50 percent settlement rates. ¹⁴

In a study of custody and visitation cases, it was found that when mediation preceded a preliminary court hearing, parties were four times as likely to opt for mediation than if asked to participate in mediation after the hearing. In addition, the cases mediated earlier averaged higher settlement rates and required fewer court hearings per case. ¹⁵

These statistics are mirrored in other court programs. The earlier the mediation is scheduled, the higher the settlement rate. Even at the appellate level this phenomenon is observed. The national settlement rate average for appellate cases is generally in the range of 36 to 42 percent.¹⁶ When a case reaches the appellate level, there is a significant amount of history associated with the case, and yet when these cases are immediately referred to mediation, settlement rates are significantly above the national average. California’s First District Court of Appeals enjoys nearly a 60 percent settlement rate ¹⁷ and the Nevada Supreme Court program averaged approximately 55 percent over a nine year period.¹⁸

The age of the case, the length of time it has been pending, and the proximity of a firm trial date are additional timing related factors that cases share across jurisdictions as well. Conventional wisdom postulates that the point at which some, presumably enough, but not all discovery is completed is the “right time” for mediation. Discovery scheduling “should be made with an eye toward when and how dispute resolution might be used.” ¹⁹ On the other hand, when key players know the important facts and engage in early mediation, they can make decisions and agreements with less formal discovery. Small claims, eviction, rent escrow, consumer loans, other business cases and property damage auto accident claims are other examples of cases that benefit from early mediation. ²⁰

Participants

Selection criteria cannot be developed in a vacuum. In addition to considering the types of cases and timing, the litigants need to be considered as well. Individuals who have had a history of cooperation and who have had the ability to communicate directly with one another in the past typically make better candidates for mediation.

The ability of the parties to actively participate in face-to-face discussions is an important factor influencing mediation settlement rates. Jurisdictions that cover large geographic areas and that do not require the plaintiff and/or defendant to attend have lower settlement rates than jurisdictions that require party attendance. Lower settlement rates were noted when mediation sessions were conducted via telephone.²¹ Selecting cases where everyone is required to attend is beneficial to any DR program, as the probability for resolution is generally greater when face-to-face mediation occurs.

Court

A primary selection criterion that is influenced most by the level of the court is self-represented parties. Small Claims, Magistrate, Justice and County courts, or courts with lower dollar case value limits typically permit self-represented parties to actively participate in DR programs. Most trial courts permit self-represented parties to participate in mediation, or at least consider self-represented litigant participation. Foreclosure cases and contract cases involving self-represented defendants are new types of cases being resolved in mediation.²² It is rare for an appellate court to permit self-represented litigant participation. ^{23 and 24}

Appellate courts are more likely to limit the types of cases that may participate in a DR program. This is especially true in mandatory appellate programs. In alphabetical order, only cases involving criminal, habeas, juvenile, parental rights, prisoner, restraining orders, self-represented litigants, tax appeals, and worker compensation²⁵ are more likely to be excluded from appellate DR programs. Historically, many appellate courts prohibited custody and other family matters from participating in DR programs; however, that trend reversed in the past several years.²⁶ 

Goals

Finally, case selection criteria may depend on the goals and original purpose for establishing the court DR program. If the goal of the court is case management, then cases may be selected arbitrarily: odd/even case number, every third case, etc. Other factors may not even be considered due to expediency. With arbitrary selection a certain percentage of cases will settle, and if not resolved completely, at least the parties may narrow the issues and focus on future discovery, negotiations or trial.

In several studies conducted between 1995 and 2002, the type of case was not an accurate predictor of settlement. Similarly, the amount in dispute was also not a factor influencing settlement rates.²⁷Courts that selected by case type, versus those that selected cases on a random basis, experienced similar settlement rates. Parallel studies involving small claims and appellate programs yielded similar conclusions.

For example, personal injury and business cases referred to mediation in a court with a jurisdictional limit of $15,000 resolved at similar rates and were not dependent upon existing or ongoing relationships among the parties.²⁸ There are a very few studies that identified slightly higher settlement rates for cases involving family and probate issues over personal injury and employment.²⁹

In DR programs that have goals relating to conserving litigant resources, preventing future disputes and/or improving the public’s perception of the court, the case selection criteria may be viewed differently. A court might select cases that are typically time consuming and costly to litigate, referring them to mediation with the hope that the case will settle, thus conserving participant resources. Cases typically selected with this goal include probate, custody and child protection cases. The goal of preventing future disputes often leads to selection of cases where there is a likelihood of an on-going relationship, such as neighbor-to-neighbor and employment. If the goal is to improve public perception of the court, then business-to-business cases and programs that reach out to underserved sectors of the community are good choices.

Summary
Just as mediation is more art than science, selection of cases is not an exact science.  Sometimes disputes that no one thinks will be resolved in mediation are; and sometimes those that look as if they should settle easily do not. Even so, considering basic case selection criteria and additional factors can guide dispute resolution program design and case selection.  The exercise of reviewing case selection criteria and additional factors in light of dispute resolution program goals offers an opportunity to fine tune the program to fit the needs of participants and the court. Clarity about those needs should inform timing decisions as well.  

Authors:

Nancy Neal Yeend: civil mediator over 25 years, faculty member of the National Judicial College for 15 years, teaching mediation and how to create and evaluate court and agency-connected DR programs, and authored seminal study of national trends in state appellate DR. (nancy@svmediators.com)

Eileen Pruett: manager of the Small Claims Division and Dispute Resolution Department for the Franklin County Municipal Court, Columbus, Ohio. For 13 years she worked for the Supreme Court of Ohio helping trial and appellate courts establish and maintain quality mediation services.  She also mediates a variety of civil cases and trains mediators. (PruettE@fcmcclerk.com)

Checklist
General Selection Criteria

• Did one or more of the parties and/or counsel request mediation?
• Did one or more of the parties and/or counsel acknowledge previous negotiations?
• Are there continuing relationships among the parties that should be preserved?
• Are there complex factual or technical issues?
• Do parties have reasons to pursue a quick resolution to the case?
• Is finality important to the litigants?
• Are there experienced counsel?
• Are the parties sophisticated or have previous experience with litigation?
• Are parties and/or counsel effective communicators?
• Are there unrealistic assessments of potential outcomes by one or more parties and/or counsel?
• Can parties afford extensive discovery and can discovery be limited?
• Are litigation costs a significant percentage of the amount in dispute?
• Will the mediation process be cost and time effective?
• Are there internal pressures to settle—time constraints?
• Is litigation unaffordable?
• Is a lengthy trial likely?
• Does the case involve routine property damage claims?
• Is the case straightforward and easy to settle?

Further Review Required

• Is there a history or threat of violence?
• Is there a history of substance abuse?
• Are the cognitive abilities of one or more of the parties in question?
• Are one or more of the parties self-represented?
• Have the parties previously participated in another dispute resolution process?
• Is there a need for public sanctions?
• Is outcome uniformity statutorily required?

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