Iowa Law Review Publishes Study Showing Litigant Preference of Mediation over Litigation in Civil Cases

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bigstock-US-government--wooden-judges--28918172A recent study[1] published in the Iowa Law Review reveals that people prefer mediation over litigation in civil cases.  Entitled “The Psychology of Procedural Preference: How Litigants Evaluate Legal Procedures Ex Ante,” the study was conducted by Donna Shestowsky, from the University of California, Davis – School of Law.

The sample used in the study included 400 litigants in 19 States.  When asked about their preferences, participants in the study stated that mediation was preferable over non-binding arbitration, due to a greater level of control and involvement on behalf of the disputants.  Participants also preferred a trial with only a judge presiding versus a trial in which a jury would determine the final outcome.

The study looked at four main variables, in particular, and focused on analyses concerning these variables.  According to the study’s abstract, the study determined: (1) litigants’ thoughts concerning the attractiveness of various legal procedures (e.g., Negotiation, Mediation, Non-binding Arbitration, Binding Arbitration, Jury Trials, Judge Trials); (2) how a litigant goes about assessing whether or not they will use each procedure that is available; (3) how these attraction ratings and “expected use” estimates compare for each procedure; and (4) whether factors relating to demographics, case type, relationship, and attitudinal elements predict a litigant’s attraction to each procedure.

The results of the study show that across each type of legal procedure, litigants prefer “Mediation, the Judge Trial, and Attorneys Negotiate with Clients Present to all other examined procedures.” These results are timely and important in today’s current legal climate, and show the trajectory that mediation as a form of alternative dispute resolution will likely take in the next few years, particularly in light of the economic and logistic difficulties caused by taking a case through the court system.

Additionally, as state governments continue to look for ways to cut their budgets in ways that will avoid taking necessary public services away from constituents, court systems are short staffed and finding it difficult to keep up with the volume of cases that are placed on the dockets each day in many jurisdictions.  In such, this study’s findings reveal yet another reason why state governments are pushing for expanding mediation programs to deal with issues such as foreclosures and other types of civil cases that tend to clog the courts.


[1] Shestowsky, Donna, The Psychology of Procedural Preference: How Litigants Evaluate Legal Procedures Ex Ante (January 13, 2014). Iowa Law Review, Vol. 99, No. 2, 2014; UC Davis Legal Studies Research Paper No. 363. Available at SSRN: http://ssrn.com/abstract=2378622.

February 13, 2014

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What You Should Know about Professional Malpractice Mediation

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What You Should Know about Professional Malpractice Mediation

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Mediators are useful in a myriad of situations, one of those being in the area of professional malpractice.  When someone in a professional capacity fails to perform his or her job within the ethical guidelines prescribed, lawsuits can be likely.  One way of avoiding a lawsuit and having all parties reach a place of mutual satisfaction is through the use of a mediator.

A mediator can be instrumental in solving issues in medical malpractice such as:

  • Failure to pursue a patient’s full medical history
  • Ignoring possible reactions to drug interactions
  • Prescribing “wrong” doses of medication
  • Improper administration of treatment, or treatment without consent
  • Insufficient medical records of treatment
  • Not communicating with the patient
  • Fraud

In cases of legal malpractice, the mediator can solve problems relating to:

  • Dishonesty
  • Acting outside of “Good Faith”
  • Treating the client in an unfair way
  • Improper actions taken against the client or actions undertaken without their consent
    • Breach of Attorney-Client Privilege
    • Unethical behavior
    • Fraud

There are other professional situations that can constitute a breach of contract.  Anything that is a direct violation of the ethical standards of a professional practice can create a situation in which mediation can become necessary for solving disputes.

Using a mediator keeps things confidential and outside of a court.  The mediator acts as a neutral third party and facilitates, rather than directs or controls, the process.  In creating an environment for discussion of the grievances, a mediator is able to decide in a fair and unbiased way, what the best course of restitution would be.

Many people, particularly in a professional capacity, prefer to have a mediator settle their disputes.  It keeps things between the aggrieved parties and the person or persons with whom they are having a dispute.  Mediation is also less time consuming than court, as well as being more affordable.

February 10, 2013

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February 6, 2014

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