Research on the New Mainstream—Early Mediation Initiative
The Early Mediation Initiative actually began in 2010 with a series of focus group meetings of lawyers and other professionals to discuss mediation, how it is used, and how its use can be improved in a wide variety of practice settings. These early focus group gatherings were co-sponsored by the WSBA and KCBA ADR Sections.
And one thing led to another as the focus discussions led to a WSBA ADR Section-sponsored study of how mediators actually operate; which led to discussions and more focus groups of how the mediation process could be better utilized; which led to a set of recommendations currently under consideration by the WSBA Board of Governors for early mediation; which leads to where we are today.
Hopefully, the future brings more opportunities for lawyers and litigants to settle their cases early and efficiently, utilizing modern settlement practices, with a wide-range of mediation services available. And, most importantly, what follows is a huge wave of opportunities for a new generation of mediators, with up to date communication/negotiation/listening skills and with modern sensibilities, to work in legal settings.
Some Detail--The WSBA ADR Section in 2012 commissioned an independent research project to identify those practices currently being used by mediators and lawyers to settle cases in Western Washington.
Three significant findings regarding mediation and its effects on the cost of litigation emerged from the survey:
1) Predominately, mediation occurs well into or even late in the litigation process—what may be called--the summit conference at the end of the case;
2) Early mediation has the potential to significantly reduce the cost of litigation; and
3) Lawyers frequently have pre-session contact with the mediator and such contact saves costs by making the mediation more efficient.
Our researcher interviewed more than thirty attorney/mediators whose combined experience in mediation exceeds 50,000 cases. An additional twenty trial lawyers from varied fields (e.g. family law, personal injury, employment and construction) with extensive experience representing clients in mediation were also interviewed. Our research set out not only to identify practices commonly used, but also to identify innovative practices that potentially reduce litigation costs. The resulting Survey Report, Mediation Practices in Law: A Survey of Northwest Mediators, by Andre Chevalier, contains a detailed explanation of how mediators operate, particularly with regard to early mediation and innovative use of pre-session contact. The Survey results led to a set of recommendations for early mediation adopted this year by the Escalating Cost of Civil Litigation Task Force and can be found online at the WSBA ADR Section website.
In 2011 the WSBA created a Task Force to assess the costs of civil litigation in Washington state courts and to recommend ways to control those costs. The Task force created an ADR Subcommittee. In 2014 with assistance from our Section and with input from our Survey, the ADR Subcommittee provided to the Task Force a set of recommendations for using early mediation. In 2015 these recommendations were adopted by the Task Force and included in their final report. The ADR recommendations and Field Notes can be found the ADR website along with links to the final Task Force Report.
Please contact me at bill@webermediation.com if interested in setting up an early mediation for your case.