Executive Summary
Introduction and Background
This is a report about five court-annexed civil mediation programs in
This report was prepared to fulfill that statutory mandate. It describes the results of a 36-month study of these five separate mediation programs. The findings reported below focus primarily on the pilot programs’ impact in five areas:
(1) the trial rate;
(2) the time to disposition;
(3) the litigants’ satisfaction with the dispute resolution process;
(4) the litigants’ costs; and
(5) the courts’ workload.
Overview of Findings
Based on the criteria established by the Early Mediation Pilot Programs legislation, all five of the Early Mediation Pilot Programs were successful, resulting in substantial benefits to both litigants and the courts. These benefits included reductions in trial rates, case disposition time, and the courts’ workload, increases in litigant satisfaction with the court’s services, and decreases in litigant costs in cases that resolved at mediation in some or all of the participating courts.
Mediation referrals and settlements—A very large number of parties and attorneys were exposed to and educated about the mediation process through participation in the five Early Mediation Pilot Programs. More than 25,000 cases filed in 2000 and 2001 were eligible for possible referral to mediation in the five Early Mediation Pilot Programs. More than 6,300 unlimited civil cases and almost 1,600 limited cases participated in pilot program mediations. On average, 58 percent of the unlimited cases and 71 percent of the limited cases settled as a direct result of early mediation. The mandatory and voluntary pilot programs generally followed the expected pattern: a higher percentage of cases were referred to mediation in the mandatory programs than in the voluntary programs, but a lower percentage of cases reached settlement in the mandatory programs than in the voluntary programs. However, the referral, mediation, and settlement patterns in the San Diego (mandatory) and Contra Costa (voluntary) programs were similar to each other, suggesting that mandatory mediation programs may be able to achieve high resolution rates when courts consider party preferences in making referrals to mediation, as they did in the San Diego pilot program, and that voluntary mediation programs may be able to achieve high referral rates when courts urge parties to consider mediation and provide some financial incentive to use the court’s mediation program, as they did in the Contra Costa pilot program. The low percentage of limited cases that stipulated to mediation in
Trial rate—In San Diego and Los Angeles, where the courts had relatively short times to disposition and there were good comparison groups, the study found that the pilot programs reduced the proportion of cases going to trial by a substantial 24 to 30 percent. By helping litigants in more cases reach resolution without going to trial, these pilot programs saved a substantial amount of court time. In
Disposition time—All five pilot programs had some positive impact on reducing the time required for cases to reach disposition. The largest reductions in average disposition time occurred in those courts that had the longest overall disposition times before the pilot program began. In all the programs, there were indications that dispositions accelerated around the time that the mediation took place, which was largely attributable to cases settling earlier at mediation than similar cases that were not in the program. There were also indications that early case management conferences and early referrals to mediation played important roles in improving time to disposition. However, the study also found that not settling at mediation resulted in longer disposition times. Overall, these results suggest that careful assessment of cases for referral to mediation is important and that early case management conferences and early mediations are important elements to incorporate into the program to improve disposition time; however, courts that have relatively long disposition times are more likely to experience dramatic reductions in disposition time as a result of implementing an early mediation program than courts with relatively short disposition times.
Litigant satisfaction—All five pilot programs had positive effects on attorneys’ satisfaction with the services provided by the court, with the litigation process, or with both. The levels of satisfaction with the courts’ services reported by attorneys who participated in the San Diego, Los Angeles, Fresno, and Contra Costa pilot programs were 10 to 15 percent higher than those reported by attorneys in nonprogram cases.1 Similarly, attorneys’ satisfaction with the litigation process was about 6 percent higher in program cases in the San Diego, Fresno, Contra Costa, and Sonoma pilot programs than in nonprogram cases. 2 Attorneys’ satisfaction with the outcome of their cases was linked to whether those cases settled at mediation—attorneys were more satisfied with the outcome in cases that settled and less satisfied in cases that did not. Attorneys were also generally more satisfied with the litigation process when their cases settled at mediation. However, attorneys whose cases were mediated were more satisfied with the services provided by the court regardless of whether their cases settled at the mediation. These results indicate that the experience of participating in pilot program mediation increased attorneys’ satisfaction with the services provided by the court, even if the case did not resolve at mediation. In all five of the pilot programs, both parties and attorneys who participated in mediations expressed high satisfaction with their mediation experience; their highest levels of satisfaction were with the performance of the mediators. They also strongly agreed that the mediator and the mediation process were fair and that they would recommend both to others.
Litigant costs— In the Contra Costa pilot program, estimated actual litigant costs were 60 percent lower and average attorney hours were 43 percent lower in program cases than in nonprogram cases. In the San Diego, Contra Costa, and Fresno pilot programs (where it was possible to break down program cases into subgroups based on their different experiences in the pilot program) the study found that the estimated actual litigation costs incurred by parties, hours spent by the attorney in reaching resolution, or both were lower in program cases that settled at mediation than in similar nonprogram cases. The percentage savings in litigant costs calculated through regression analysis were 50 percent in the Contra Costa pilot program; savings in attorney hours were 40 percent in the Contra Costa pilot program, 20 percent in the
Court workload—The pilot programs in San Diego, Los Angeles, Fresno, and Sonoma reduced the number of motions, the number of other pretrial hearings, or both in program cases. The reductions were substantial, ranging from 18 to 48 percent for motions and from 11 to 32 percent for other pretrial hearings. Reductions in cases that settled at mediation were even larger, ranging from 30 to 65 percent, compared to similar nonprogram cases. In Fresno, because of special conferences required under pilot program’s procedures, these decreases were offset by increases in the number of case management conferences in program cases.3 However, in the San Diego, Los Angeles, and Sonoma programs, these reductions resulted in overall savings in court time. The total potential time savings from reduced numbers of court events were estimated to be 479 judge days per year in San Diego (with an estimated monetary value of $1.4 million), 132 days in Los Angeles (with an estimated monetary value of approximately $400,000), and 3 days in Sonoma (with an estimated monetary value of approximately $9,700). These estimates suggest that early mediation programs can help courts save valuable judicial time that can be devoted to other cases requiring judges’ attention. In addition, survey results indicate that there were fewer postdisposition compliance problems and fewer new proceedings initiated in program cases, suggesting that the pilot programs not only reduced court workload in the short term but also may have reduced the court’s future workload.
Summary of Findings Concerning
There is strong evidence that the mandatory pilot program in
Mediation referrals and settlements—7,507 cases that were filed in 2000 and 2001 (5,394 unlimited and 2,112 limited) were referred to mediation, and 5,035 of those cases (3,676 unlimited and 1,358 limited cases) were mediated under the pilot program. Of the unlimited cases mediated, 51 percent settled at the mediation and another 7 percent settled later as a direct result of the mediation, for a total resolution rate of approximately 58 percent. Among limited cases, 62 percent settled at mediation and another 14 percent settled later as a direct result of the mediation, for a total resolution rate of approximately 76 percent. In survey responses, 74 percent of attorneys whose cases did not settle at mediation indicated that the mediation was important to the ultimate settlement of the case.
Trial rate—The trial rates for both limited and unlimited cases in the program group were reduced by approximately 25 percent compared to those cases in the control group. This reduction translates to a potential saving of more than 500 days per year in judicial time that could be devoted to other cases needing judges’ time and attention. While this time savings does not translate into a fungible cost saving that can be reallocated to other purposes, its monetary value is equivalent to approximately $1.6 million per year.
Disposition time—The average time to disposition for unlimited cases in the program group was 12 days shorter than that for cases in the control group and 10 days shorter for limited cases in the program group. The median time to disposition was 19 days shorter for unlimited cases in the program group and 25 days shorter for limited cases in the program group. For unlimited cases, program and control-group cases were disposed of with similar speed from filing until about the time of the case management conference, when the pace of dispositions for program-group cases quickened and the percentage of program-group cases reaching disposition exceeded that of control-group cases. For limited cases, program-group cases were being disposed of faster than control-group cases well before the time of the early case management conference, suggesting that the possibility of attending the conference and being referred to mediation may have increased dispositions. Program-group cases, both unlimited and limited, were disposed of fastest around the time of the mediation. Comparisons with similar cases in the control group confirmed that when program-group cases were settled at mediation, the average disposition time was shorter, but also indicated that when cases were mediated and did not settle at the mediation, the disposition time was longer.
Litigant satisfaction—Attorneys in limited program-group cases were more satisfied with the court’s services than attorneys in limited control-group cases. Attorneys’ levels of satisfaction with the court’s services, the litigation process, and the outcome of the case were all higher in both limited and unlimited program-group cases that settled at mediation than in similar control-group cases. Attorneys in program-group cases that went to mediation and did not settle at mediation were also more satisfied with the court’s services than attorneys in similar control-group cases. This suggests that participating in mediation increased attorneys’ satisfaction with the court’s services, regardless of whether their cases settled at mediation. Both parties and attorneys who participated in pilot program mediations expressed high satisfaction with their mediation experience, particularly with the performance of the mediators. They also strongly agreed that the mediator and the mediation process were fair and that they would recommend both to others.
Litigant costs—Estimates of actual attorney time spent in reaching resolution were 16 percent lower in program-group cases that settled at mediation than for similar cases in the control group. Comparisons between program-group cases that settled at mediation and similar control-group cases also suggested that litigant costs were lower in program-group cases that settled at mediation. Eighty-seven percent of attorneys whose cases resolved at mediation estimated some savings in both litigant costs and attorney hours from using mediation to reach settlement. Average savings estimated by attorneys per settled case was $9,159 in litigant costs and 50 hours in attorney time, for a total estimated savings of $24,784,254 in litigant costs and 135,300 attorney hours in 2000 and 2001 cases that settled at mediation.
Court workload— The pilot program in
Summary of Findings Concerning
There is strong evidence that the mandatory pilot program in
Mediation referrals and settlements—560 unlimited cases that were filed between April and December 2001 were referred to mediation, and 399 of these cases were mediated under the pilot program. Of the unlimited cases mediated, 35 percent settled at the mediation and another 14 percent settled later as a direct result of the mediation, for a total resolution rate of approximately 49 percent. In survey responses, 78 percent of attorneys whose cases did not settle at mediation indicated that the mediation was important to the ultimate settlement of the case.
Trial rate—The trial rate for unlimited civil cases in the program was reduced by approximately 30 percent compared to cases in the control groups. This reduction translates to a potential savings of more than 670 days in judicial time that could be devoted to other cases needing judges’ time and attention. While this time saving does not translate into a fungible cost saving that can be reallocated to other purposes, its monetary value is equivalent to approximately $2 million per year.
Time to disposition—The overall average time to disposition for program-group cases was approximately 19 days shorter and the median time to disposition was 23 days shorter, than for cases in the control departments. The disposition rate in the program group was higher than that in either control group for the entire study period. The pace of dispositions rose for program cases, reaching the fastest pace both around the time when case management conferences were held and when mediations were completed in the program group, suggesting that both the case management conference and the mediation may have increased dispositions. Among cases that settled at mediation, cases in the pilot program took less time to reach disposition than like cases in either control group that settled in the 1775 program. Among cases that did not settle at mediation, program-group cases took more time to reach disposition than like cases in either control group under the 1775 program.
Litigant satisfaction—Attorneys in program-group cases were more satisfied with the court’s services than attorneys in control-group cases. Attorneys whose cases settled at mediation under the pilot program were also more satisfied with both the outcome of the case and with the services of the court compared to attorneys in cases that settled at mediation under the 1775 program. However, attorneys whose cases did not settle at mediation under the Early Mediation Pilot Program were less satisfied with outcome of the case than attorneys whose cases did not settle at mediation under the 1775 program. Both parties and attorneys who participated in pilot program mediations expressed high satisfaction with their mediation experience, particularly with the performance of the mediators. They also strongly agreed that the mediator and the mediation process were fair and that they would recommend both to others.
Litigant costs—In cases resolved at mediation, 75 percent of attorneys responding to the study survey estimated some savings in both litigant costs and attorney hours from using mediation to reach settlement. Average savings per settled case estimated by attorneys was $12,636 in litigant costs and 66 hours in attorney time. Based on these attorney estimates, the total estimated savings in litigant costs in all 2001 cases that were settled at mediation was $1,769,039 and total estimated savings in attorney hours was 9,240. There was also evidence that both litigant costs and attorney hours were lower in program cases that settled at mediation under the Early Mediation Pilot Program compared to like cases in the control departments that settled at mediation under the 1775 program; both litigant costs and attorney hours were approximately 60 percent lower in program-group cases that settled at mediation compared to similar cases in the control groups.
Court workload—The pilot program in
Comparison of Mandatory Pilot Program Mediation and Voluntary Mediation in Los Angeles—The statutes establishing the Early Mediation Pilot programs required the Judicial Council report to compare court-ordered mediation under the pilot program with voluntary mediation in Los Angeles county. In comparisons between cases valued over $50,000 referred to mediation under pilot program (court-ordered referrals) and cases valued at over $50,000 referred to mediation under the Civil Action Mediation program established by Code of Civil Procedure sections 1775 -1775.16 (voluntary referrals) in Los Angeles, the study found lower trial rates, disposition time, and court workload in those cases valued over $50,000 referred to mediation under pilot program compared to the 1775 program. The trial rate for these pilot program cases was approximately 31 percent lower than in these 1775 program cases, disposition time was approximately 20 to 30 days shorter in the pilot program cases, and there were 10 percent fewer court events on average in these pilot program cases. Results of the study also suggested that attorneys satisfaction with the court’s services and the litigation process may have been higher in those cases valued over $50,000 referred to mediation under pilot program than under the 1775 program. However, it is not clear whether these differences were due to the mandatory referrals to mediation in the pilot versus the voluntary referrals under the 1775 program or due to other differences between these two programs, such as the pilot program’s earlier case management conferences and mediations.
Summary of Findings Concerning
There is strong evidence that the mandatory pilot program in
Mediation referrals and settlements—Almost 1,300 cases that were filed in 2000 and 2001 (871 unlimited and 414 limited) were referred to mediation, and more than 700 of these cases (514 unlimited and 214 limited) were mediated under the pilot program. Of the unlimited cases mediated, 47 percent settled at the mediation and another 8 percent settled later as a direct result of the mediation, for a total resolution rate of approximately 55 percent. Among limited cases, 58 percent settled at mediation and another 3 percent settled later as a direct result of the mediation, for a total resolution rate of approximately 61 percent. In survey responses, 67 percent of attorneys whose cases did not settle at mediation indicated that the mediation was important to the ultimate settlement of the case.
Trial rate—Because a large proportion of the cases being studied had not yet reached disposition, there was not sufficient data to determine whether the pilot program in Fresno had an impact on the trial rate.
Disposition time—For unlimited cases filed in 2001, the average time to disposition in the program group was 39 days shorter than in the control group and the median time to disposition was 50 days shorter. For limited cases filed in 2001, the average time to disposition for cases in the program group was 26 days shorter than for cases in the control group and the median time to disposition was 6 days shorter. The results of regression analysis that accounted for case type differences suggest that the average time to disposition in the program group was 40 days shorter than in the control group for both unlimited and limited cases. For both unlimited and limited program-group cases, starting at about the time of the pilot program mediations occurred on average, the pace of dispositions outstripped that of cases in the control group, suggesting that the mediations contributed to shortening the time to disposition. Comparisons with similar cases in the control group indicate that when program-group cases were settled at mediation, the average disposition time was shorter, but when cases were mediated and did not settle at the mediation, the disposition time was longer.
Litigant satisfaction—Attorneys in both unlimited and limited program-group cases were more satisfied with both the litigation process and the court’s services than attorneys in control-group cases. Attorneys’ satisfaction with the court’s services, the litigation process, and the outcome of the case were all higher in program-group cases that settled at mediation than in similar control-group cases. While attorneys whose cases did not settle at mediation were less satisfied with the outcome of the case, they were still more satisfied with both the litigation process and the services provided by the court than attorneys in like cases in the control group. This suggests that participating in mediation increased attorneys’ satisfaction with both the litigation process and the court’s services, regardless of whether the case settled at mediation. Both parties and attorneys who participated in pilot program mediations expressed high satisfaction with their mediation experiences, particularly with the performance of the mediators. They strongly agreed that the mediator and the mediation process were fair and that they would recommend both to others.
Litigation costs—There was evidence that both litigant costs and attorney time were reduced when cases resolved at mediation. Eighty-nine percent of attorneys whose cases resolved at mediation estimated some savings in both litigant costs and attorney hours from using mediation to reach settlement. Average savings estimated by attorneys per settled case was $9,915 in litigant costs and 50 hours in attorney time, for a total estimated savings of $3,619,136 in litigant costs and 24,455 in attorney hours in all 2000 and 2001 cases that settled at mediation.
Court workload—Unlimited program-group cases filed in 2001 had 13 percent fewer motion hearings than cases in the control group, and limited program-group cases had 48 percent fewer motion hearings. However, this decrease in motions was offset by an increase in the number of case management conferences and other pretrial hearings in pilot program cases so that, overall, there was an increase in the total number of pretrial court events in the program group and a small increase in the judicial time spent on program cases during the study period. The increase in the number of case management conferences for program cases was understandable given court procedures (since changed) that required conferences in all program cases that did not settle at mediation and in most program cases when the parties wanted their case removed from the mediation track. The court’s procedures did not generally require case management conferences in other cases. Unlimited program-group cases that settled at mediation had 45 percent fewer court events overall compared to similar cases in the control group. This overall reduction stemmed from reductions in motion and other hearings; there were 80 percent fewer motion hearings and 60 percent fewer other hearings in unlimited program cases that settled at mediation compared to like cases in the control group.
Summary of Findings Concerning Contra Costa Pilot Program
There is evidence that the voluntary pilot program in Contra Costa reduced disposition time and litigant costs and increased attorney satisfaction with the litigation process and the services provided by the court.
Mediation referrals, mediations, and settlements—1,650 cases that were filed in the
Trial rate—No statistically significant reduction in the trial rate was found either in comparisons between cases filed before and after the program began or in comparisons between cases in which the litigants stipulated to mediation and those in which they did not. However, this does not necessarily indicate that the pilot program had no impact on the trial rate; there were limitations associated with the comparisons that made it difficult to evaluate whether the program affected trial rates.
Disposition time—There was evidence that the pilot program decreased disposition time. Pre-post program comparisons suggested that the median disposition time for cases filed after the pilot program began was shorter than the median disposition time for cases filed before the program began. These comparisons also showed that the disposition rate for post-program cases was higher than that for pre-program cases for the entire 34-month period studied, but most noticeably between 6 and 12 months after filing, when it ranged from about 1.5 to 3 percent higher than that for pre-program cases. Comparisons between disposition rates in cases in which the litigants have stipulated to mediation and cases in which they did not showed that while nonstipulated cases began to resolve earlier than stipulated cases, from 9 to 18 months after filing, stipulated cases were disposed of at a faster pace than nonstipulated cases and ultimately more stipulated than nonstipulated cases had reached disposition by the end of 18 months after filing. The pace of dispositions for stipulated cases was fastest at 9 months after filing, about the time that mediations took place, suggesting that mediations increased the pace of dispositions among stipulated cases. Comparisons with similar stipulated and nonstipulated cases confirmed that when cases were settled at mediation, the average disposition time was shorter, but also indicated that when cases were mediated and did not settle at the mediation, the disposition time was longer.
Litigant satisfaction—Attorneys in which the litigants have stipulated to mediation cases were more satisfied with the overall litigation process and services provided by the court than attorneys in cases in which the litigants did not stipulate to mediation. They were, however, less satisfied with outcome of the case compared to attorneys in nonstipulated cases. Attorneys’ levels of satisfaction with the court’s services, the litigation process, and with the outcome of the case were all higher in stipulated cases that settled at mediation than in similar nonstipulated cases. Attorneys in stipulated cases that went to mediation and did not settle at mediation were also more satisfied with the court’s services than attorneys in similar nonstipulated cases. This suggests that participating in mediation increased attorneys’ satisfaction with the court’s services, regardless of whether their cases settled at mediation. Both parties and attorneys who participated in pilot program mediations expressed high satisfaction with their mediation experience, particularly with the performance of the mediators. They also strongly agreed that the mediator and the mediation process were fair and that they would recommend both to others.
Litigant costs—There was evidence that the pilot program reduced both litigant costs and attorney time, particularly in cases that settled at mediation. Litigant costs in were approximately $7,500 lower in cases in which the litigants stipulated to mediation compared to those in which the litigants did not stipulate to mediation. Both direct comparisons between stipulated and nonstipulated cases disposed of in over six months and comparisons between litigant costs and attorney hours in stipulated cases and nonstipulated cases with similar characteristics using regression analysis also suggested that both litigant costs and attorney hours were reduced in stipulated cases. Regression analysis also suggests that litigant costs were reduced by 50 percent or more and attorney hours were reduced by 40 percent in both cases that were settled at mediation and in cases that did not settle at mediation compared to similar nonstipulated cases. Eighty-seven percent of attorneys whose cases resolved at mediation estimated some savings in both litigant costs and attorney hours from using mediation to reach settlement. Average savings estimated by attorneys per settled case was $16,197 in litigant costs and 78 hours in attorney time, for a total estimated savings of $9,993,839 in litigant costs and 48,126 attorney hours in 2000 and 2001 cases that settled at mediation.
Court workload—The evidence concerning the Contra Costa pilot program’s impact on the court’s workload was mixed. In pre-post program comparisons, the average number of case management conferences held per case was 27 percent higher and the number of “other” pretrial hearings was 11 percent higher the year after the program began compared to a year before the pilot program began. The increase in case management conferences may have been due, at least in part, to the introduction of the Complex Litigation Pilot Program in 2000. In comparisons of stipulated and nonstipulated cases, stipulated cases had fewer motion hearings but more CMCs than nonstipulated cases, so that the total number of all pretrial events was essentially the same in both groups. However, comparisons of only those cases disposed of in over six months suggested that the total number of hearings may have been lower in the stipulated group. In addition, when cases settled at mediation, the total number of court events was 20 percent lower, on average, in stipulated cases compared to nonstipulated cases with similar characteristics. Conversely, similar comparisons suggested that the number of pretrial hearings may have increased when cases did not settle at mediation.
Summary of Findings Concerning
There is evidence that the voluntary pilot program in
Mediation referrals, mediations, and settlements—737 cases that were filed in 2000 and 2001 were referred to mediation and 574 of these cases were mediated under the pilot program. Of the unlimited cases mediated, 62 percent settled at the mediation. In survey responses, 90 percent of attorneys whose cases did not settle at mediation indicated that the mediation was important to the ultimate settlement of the case.
Trial rate—Because a large proportion of the cases being studied had not yet reached disposition, there was not sufficient data to determine whether the pilot program in Sonoma had an impact on the trial rate.
Disposition time—The pilot program had a positive impact on case disposition time for both limited and unlimited cases. The average disposition time for limited cases filed after the program began was 37 days shorter than the average for limited cases filed before the program began. The disposition rate for unlimited post-program cases was higher than for pre-program cases for the entire 34-month follow-up period. The pace of dispositions for limited post-program cases accelerated about the time when, under the court’s rules, early mediation status conferences were set, suggesting that this conference played a role in improving disposition time. Comparisons of the disposition rates in stipulated and nonstipulated cases showed that while nonstipulated cases begin to resolve earlier, once stipulated cases begin reaching disposition, they were disposed of faster than nonstipulated cases and ultimately more stipulated than nonstipulated cases reached disposition by the end of 34 months. The fact that stipulated cases were disposed of fastest between 6 and 12 months after filing, about the time that mediations would have occurred under the court’s pilot program rules, suggests that participation in mediation may have increased the rate of disposition for stipulated cases.
Litigant satisfaction—Attorneys in stipulated cases were more satisfied with the overall litigation process and services provided by the court. Both parties and attorneys expressed high satisfaction when they used mediation through the
Litigant costs—There was evidence that both litigant costs and attorney time were reduced when cases resolved at mediation. Ninety-five percent of attorneys whose cases resolved at mediation estimated some savings in both litigant costs and attorney hours from using mediation to reach settlement. Average savings estimated by attorneys per settled case were $25,965 in litigant costs and 93 hours in attorney time. Based on these attorney estimates, a total of $9,243,430 in litigant costs and 33,108 in attorney hours was estimated to have been saved in all 2000 and 2001 cases that were settled at mediation.
Court workload—There was evidence that the pilot program reduced the court’s workload. Comparisons between cases filed before and after the pilot program began indicated that average number of “other” pretrial hearings was 15 percent lower in unlimited cases filed after the pilot program began than in unlimited cases filed before the program began. Comparisons between stipulated and nonstipulated cases using regression analysis to control for differences in case characteristics indicated that the average number of motion hearings was 50 percent lower in cases in which the parties stipulated to mediation compared to similar cases in which the parties did not stipulate to mediation and that the average number of “other” pretrial hearings was 45 percent lower. The smaller number of court events in cases filed after the pilot program began means that the time that judges would have been spent on these events could be devoted to other cases needing judicial time and attention. The total time saving from the reduced number of court events was estimated at 3.2 judge days per year (with an estimated monetary value of approximately $9,700 per year).
1 In the
2 In the San Diego pilot program, because of offsetting decreases in satisfaction among unlimited program-group cases that were not referred to mediation, this impact was evident only for limited cases.
3 The Superior Court of
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JUDICIAL COUNCIL OF
ADMINISTRATIVE OFFICE OF THE COURTS
Report Summary
TO: Members of the Judicial Council
FROM: Michael Bergeisen, General Counsel
Heather Anderson, Senior Attorney, 415-865-7691
Ron Pi, Senior Analyst
DATE:
SUBJECT: Early Mediation Pilot Programs: Evaluation Report and Recommendations (Action Required)
Issue Statement
The Early Mediation Pilot Programs (“pilot programs”) were established by Code of Civil Procedure section 1730 et seq. to assess the benefits of early mediation in civil cases. The pilot programs were authorized and funded under legislation adopted in 1999.1 Under this authorization, pilot programs began operating in four courts—the Superior Courts of Contra Costa, Fresno, San Diego, and Sonoma Counties—in early 2000. Under a later-enacted statute,2 10 civil departments in the downtown branch of the
As part of this legislation, Code of Civil Procedure section 1742 requires the Judicial Council to submit a report to the Legislature and Governor on the pilot programs.
Administrative Office of the Courts (AOC) staff has prepared the attached report, Evaluation of the Early Mediation Pilot Programs, to fulfill that statutory mandate. The report shows that all five of the Early Mediation Pilot Programs were successful, resulting in substantial benefits to both litigants and the courts.
Recommendation
AOC staff recommends that the Judicial Council:
1. Approve the attached report, Evaluation of the Early Mediation Pilot Programs, and forward it to the Legislature and Governor.
2. In the existing pilot program courts, support the continuation of mediation programs with the following principal characteristics and the eventual transition of these programs to permanent parts of the courts’ core operations:
a. Both limited and unlimited civil cases are eligible for the mediation program;
b. Mediation is considered at the first case management conference;
c. The court assesses cases to determine if mediation is appropriate and encourages the use of mediation in appropriate cases;
d. The court sets early deadlines for completion of mediation in appropriate cases;
e. The program provides trained mediators and incentives to use the mediators who are part of the court’s program; and
f. Professional staff with expertise in mediation manages the mediation program.
3. Support expansion of mediation programs for civil cases in
4. Direct the Civil and Small Claims Advisory Committee to consider whether legislative or rule amendments should be recommended to facilitate the implementation of mediation programs for civil cases.
5. Direct AOC staff to:
a. Work with the pilot courts to share the results of the pilot programs with other trial courts and encourage these other courts to consider implementing mediation programs for civil cases as part of their core operations;
b. Work with the trial courts to assess their needs and the resources currently available to them in terms of developing, implementing, maintaining, and improving mediation programs and other settlement programs for civil cases. Where existing resources are not sufficient, work with the courts to develop plans for obtaining necessary resources; and
c. Provide support and training to trial courts to help them develop, implement, maintain, and improve mediation programs and other settlement programs for civil cases, including training for judges in assessing civil cases for referral to mediation and technical assistance and information about best practices for programs.
Rationale for Recommendation
As discussed in the attached report, based on the criteria established by the Early Mediation Pilot Program legislation, all five of the Early Mediation Pilot Programs were successful, resulting in substantial benefits to both litigants and the courts. Some of the study’s main findings follow.
Mediation referrals and settlements
More than 25,000 cases filed in 2000 and 2001 were eligible for possible referral to mediation in the five Early Mediation Pilot Programs. The attorneys and parties in all those cases were exposed to and educated about the mediation process. More than 6,300 unlimited civil cases and almost 1,600 limited cases participated in pilot program mediations. On average, 58 percent of the unlimited cases and 71 percent of the limited cases settled as a direct result of being mediated.
Trial rate
In
Disposition time
All five pilot programs reduced the time required for cases to reach disposition. Both early case management conferences and early mediation played important roles in improving time to disposition.
Litigant satisfaction
All five pilot programs increased attorneys’ satisfaction with the services provided by the court, with the litigation process, or with both. The experience of participating in pilot program mediation increased attorneys’ satisfaction with the services provided by the court even if their cases did not resolve at mediation. In all five pilot programs, the majority of both parties and attorneys who participated in mediations expressed high satisfaction with their mediation experience and strongly agreed that the mediator and the mediation process were fair and that they would recommend both to others.
Litigant costs
In the
Court workload
The pilot programs in
These benefits warrant the council supporting the continuation of early mediation programs in the pilot courts and their eventual transition to part of the courts’ core operations.
The study’s positive results also warrant the council supporting the expansion of these programs to their optimal level, both within the pilot courts and in other trial courts, based on the courts’ individual needs and resources. The Civil and Small Claims Advisory Committee can assist in reaching this goal by (1) developing a proposal for a Standard of Judicial Administration recommending that courts implement mediation programs for civil cases as part of their core operations and (2) considering whether legislative or rule amendments should be recommended to facilitate the implementation of mediation programs for civil cases. The AOC staff can assist courts in developing, implementing, maintaining, and improving mediation programs for civil cases by disseminating the results of the pilot programs, helping courts identify what they would need to fully implement such programs, developing plans for courts to obtain necessary resources to establish and develop these programs, sharing information about best practices, and offering training and technical assistance.
Alternative Actions Considered
The alternatives to permanently establishing mediation programs in the five pilot program courts are to (1) continue to operate mediation programs on a year-to-year basis, which would create uncertainly among the participating judges, attorneys, and litigants, and would reduce the programs’ efficiency or (2) discontinue the programs in these courts, which would eliminate the benefits of the programs identified in the report.
Not expanding mediation programs in the trial courts would mean the courts and litigants would not realize the full benefits achieved in the pilot program courts.
Comments From Interested Parties
The report and recommendations for mediation programs were not circulated for public comment. Parties, attorneys, mediators, and judges in the participating courts were surveyed and/or interviewed as part of the pilot program study, and their responses are discussed in the attached report. Each pilot court also received draft of the report chapter outlining findings concerning its program, the overview of the findings in all five programs, and the proposed recommendations for review and comment. Staff substantially revised the report based on comments received from the pilot courts. The Alternative Dispute Resolution Subcommittee of the Civil and Small Claims Advisory Committee also reviewed the overview of the pilot program findings and approved the proposed recommendations.
Implementation Requirements and Costs
Mediation programs continue to operate in the five pilot program courts with full or partial support from the Judicial Administration Efficiency and Modernization Fund. Currently $1,740,001 is allocated for fiscal year 2003–2004 to the programs in the five participating courts.
The recommended expansion of mediation programs in
It is anticipated that the provision of support and training, including judicial education, to help courts develop, implement, maintain, and improve mediation programs and other settlement programs for civil cases could largely be covered with current AOC staffing and funding.
JUDICIAL COUNCIL OF
ADMINISTRATIVE OFFICE OF THE COURTS
Report
TO: Members of the Judicial Council
FROM: Michael Bergeisen, General Counsel
Heather Anderson, Senior Attorney, 415-865-7691
Ron Pi, Senior Analyst
DATE:
SUBJECT: Early Mediation Pilot Programs: Evaluation Report and Recommendations (Action Required)
Issue Statement
The Early Mediation Pilot Programs (“pilot programs”) were established under legislation adopted in 1999 to assess the benefits of early mediation of civil cases.3 As part of this legislation, Code of Civil Procedure section 1742 requires the Judicial Council to submit a report to the Legislature and Governor on the pilot programs. Administrative Office of the Courts (AOC) staff prepared the attached report, Evaluation of the Early Mediation Pilot Programs, to fulfill that statutory mandate.4 The report shows that all five of the Early Mediation Pilot Programs were successful, resulting in substantial benefits to both litigants and the courts.
Background
Legislation enacted in July 1999 required the Judicial Council to establish early mediation pilot programs for general civil cases in four superior courts.5 These statutes also established a basic framework for the mediation pilot programs, focusing on early assessment and referral of cases to mediation and completion of mediation early in the litigation process.
The statutes authorized the pilot courts to hold an initial conference with the parties earlier than is generally permitted under California law—as early as 90 days following the filing of the case rather than the 120–150 days after filing permitted outside the pilot program.6 At this conference the court was to confer with the parties about alternative dispute resolution (ADR) options.
The statutes provided that in two of the four pilot programs, the court was to have the authority to make mandatory referrals to mediation (mandatory courts). In the other two programs, participation in mediation was to be voluntary (voluntary courts).7 In the mandatory courts, the statutes provided that, after considering the willingness of the parties to mediate, the court had the power to then order the case to mediation. The statutes further required the mandatory courts to establish a panel of mediators.8 Parties were free to choose any mediator for their case, whether or not that mediator was on the court’s panel. However, if the parties chose a mediator from the court’s panel, the services of that mediator were to be provided at no cost to the parties.9
The statutes generally required that mediations be scheduled within 60 days of the early case management conference.10 At the end of the mediation, the mediator was required to file a form with the court, reporting whether the mediation ended in full resolution of the case, partial resolution, or no resolution.11
The 1999 statutes gave the Judicial Council responsibility for selecting the four pilot program courts.12 Through a request-for-proposals process, the following courts were selected to be pilot program sites: the Superior Courts in
In 2000, the Early Mediation Pilot Program statutes were amended13 to require that the Judicial Council also establish another early mediation pilot program in the
The pilot program legislation required the Judicial Council to adopt rules of court to further implement the pilot programs.14 The Judicial Council was also provided with funds to support the pilot programs through an increased appropriation to the Judicial Administration Efficiency and Modernization Fund. In the mandatory courts, the bulk of the funds used to compensate mediators for their service in pilot program mediations. All the pilot courts also used the funds allocated by the Judicial Council to support staff to administer the mediation program. All these programs were managed by professional staff that had mediation training and expertise.
While the Early Mediation Pilot Program statutes and implementing rules laid out the basic framework for the pilot programs, they left considerable room for the pilot courts to determine the structure and procedure of their mediation programs. Thus, while the five pilot programs shared some common features, their program procedures also varied significantly, including the timing of the case management conferences, the process of mediation referrals, the role of judges in mediation referrals, and the qualifications and compensation of the mediators serving the program. The court environments also varied. For example, some of the pilot courts are large, urban courts with large civil caseloads; others are smaller courts with much smaller civil caseloads. Some had offered court-annexed mediation programs before they implemented the pilot program while others had not. The differences in pilot program structure together with differences in the pilot courts’ environments mean that each of the five programs is unique; these programs cannot simply be lumped together and viewed generically as “mediation programs” or as “voluntary” or “mandatory” programs.
The Early Mediation Pilot Program evaluation report
The Early Mediation Pilot Program legislation requires that the Judicial Council submit a report to the Legislature and Governor on the pilot programs. The report is specifically required to examine the programs’ impact on:
1. The settlement rate;
2. The timing of settlement;
3. The litigants’ satisfaction with the dispute resolution process; and
4. The costs to the litigants and the courts.
AOC staff prepared the attached report, Evaluation of the Early Mediation Pilot Programs, to fulfill that statutory mandate. The report describes the results of a 30-month study of each of the five mediation programs, which included examining data collected from the courts’ case management systems and surveys of parties, attorneys, mediators, and judges from each pilot court.
The report’s findings show that, based on the criteria established by the Early Mediation Pilot Program legislation, all five of the programs were successful. Despite the varying nature of the pilot programs and the pilot courts, the study found that these early mediation programs resulted in substantial benefits for both litigants and the courts, including reductions in trial rates, case disposition time, and the courts’ workload, increased attorney satisfaction with the courts’ services, and lowered litigant costs in cases that resolved at mediation in some or all of the participating courts. Some of the report’s main findings follow.
Mediation referrals and settlements
More than 25,000 cases filed in 2000 and 2001 were eligible for possible referral to mediation in the five Early Mediation Pilot Programs. The attorneys and litigants in all these cases were exposed to and educated about the mediation process. More than 6,300 unlimited civil cases and almost 1,600 limited cases participated in pilot program mediations and, on average, 58 percent of the unlimited cases and 71 percent of the limited cases settled as a direct result of being mediated.
The mandatory and voluntary pilot programs generally followed expected patterns of mediation referral and settlement rates: a higher percentage of cases were referred to mediation in the mandatory programs than in the voluntary programs, but a lower percentage reached settlement in the mandatory programs. However the referral, mediation, and settlement patterns in the San Diego (mandatory) and Contra Costa (voluntary) programs were similar to each other, suggesting that: (1) mandatory mediation programs can achieve relatively high resolution rates when courts consider the parties’ willingness to use mediation in making referrals, as they did in the San Diego pilot program and (2) voluntary mediation programs can achieve relatively high referral rates when courts urge parties to consider mediation and provide some financial incentive to use the court’s mediation program, as they did in the Contra Costa pilot program. The very low percentage of limited cases that stipulated to mediation in
Trial rate
In
Disposition time
All five pilot programs reduced the time required for cases to reach disposition. The largest reductions in disposition time came in those courts that had the longest overall disposition times before the pilot programs began. In all the programs the rates of disposition accelerated around the time of the mediation, which was largely attributable to cases’ settling earlier at mediation. There were also indications that early case management conferences and early referrals to mediation played important roles in improving time to disposition. However, the study also found that going to mediation and not settling resulted in longer disposition times, which highlights the need for care in selecting and referring cases to mediation. Overall, these results indicate that early case management conferences and early mediations are important for reducing time to disposition, and that courts that have long disposition times are more likely to achieve dramatic drops in disposition time as a result of implementing an early mediation program.
Litigant satisfaction
All five pilot programs increased attorneys’ satisfaction with the services provided by the court, with the litigation process, or with both. Attorneys’ level of satisfaction with the outcome of their cases was correlated with whether those cases settled at mediation; attorneys were more satisfied with the outcome in cases that settled and less satisfied in cases that did not. Attorneys were also generally more satisfied with the litigation process when their cases settled at mediation. However, it is noteworthy that attorneys whose cases were mediated were more satisfied with the services provided by the court regardless of whether their cases settled at the mediation. This indicates that the experience of participating in pilot program mediation increased attorneys’ satisfaction with the services provided by the court, even if the case did not resolve at mediation. In all five pilot programs, the majority of parties and attorneys who participated in mediations expressed high satisfaction with their mediation experience and strongly agreed that the mediator and the mediation process were fair and that they would recommend both to others.
Litigant costs
In the San Diego, Los, Contra Costa, and Fresno pilot programs (where it was possible to break down program cases into subgroups based on their different experiences in the program) the study found that the estimated litigation costs incurred by parties, the hours spent by their attorneys in reaching resolution, or both were lower, by 16–50 percent, in program cases that settled at mediation than similar nonprogram cases. In all five pilot programs, attorneys in program cases that settled at mediation also estimated savings, ranging from 61 to 68 percent in litigant costs and 57 to 62 percent in attorney hours, from using mediation to reach settlement. When results from all five pilot programs are added together, the total savings in 2000 and 2001 cases that settled at pilot program mediations, as estimated by the participating attorneys, was considerable: $49,409,698 in litigant costs and 250,229 attorney hours.
Court workload
The pilot programs in
Rationale for Recommendation
To fulfill the requirements of the pilot program statutes, staff recommends that the council approve the attached report for submission to the Legislature and Governor.
Staff also recommends that, on the basis of the positive findings in the report, the council take action to bring the benefits of early mediation programs to full fruition in the
The benefits found in the study warrant council support for the continued operation of early mediation programs in the pilot courts and the eventual transition of these programs to permanent parts of the courts’ core operations.16 Based on the report’s results, staff recommends retention of the following features in these mediation programs:
Eligibility of both limited and unlimited cases. The report found that the benefits of the early mediation pilot programs extended to both limited and unlimited cases that were included in the program.
Consideration of mediation at the first case management conference. The report found that earlier case management conferences and earlier mediation referrals were linked with earlier disposition of cases. Under rule amendments adopted in July 2002, the first regular case management conferences are now typically held within the timeframe in which the pilot courts actually held initial conferences during the pilot program.
Assessment of cases to determine if mediation is appropriate and promotion of mediation use in appropriate cases. While many cases will benefit from participating in early mediation, some will not. Maximizing the overall benefits of an early mediation program involves identifying those cases that will benefit from the mediation process while screening out those cases that will not. The report’s findings suggest that mediation programs, whether they are mandatory or voluntary, can achieve a combination of high mediation referral rates and high mediation resolution rates by: (1) assessing whether cases are appropriate for referral to mediation, including whether litigants are willing to participate in mediation, and (2) promoting mediation use in appropriate cases, including urging parties to consider mediation and providing financial incentives to use mediation.
Setting early deadlines for completion of mediation in appropriate cases. The report found that early participation in mediation was linked with earlier disposition. However, there were some cases in which the litigants believed that mediation was set too early. In these cases, flexibility to set later mediation completion times might have been beneficial.
Providing trained mediators and incentives to use the mediators who are part of the court’s program. All the pilot programs set training and experience requirements designed to maintain the quality of the mediator’s services, and most subsidized the cost of mediation if litigants used mediators from the court’s panel. The pilot programs in which the mediators on the court’s panel were used were better able to monitor program outcomes and the quality of services.
Administration of the mediation program by professional staff with expertise in mediation. Professional staff with expertise in mediation administered all five pilot programs. Program staff provided critical support in designing and implementing program procedures and monitoring program quality. The value of program staff was noted in interviews with pilot program judges.
The benefits found in the pilot program study also warrant council support for expanding such civil mediation programs to their optimal level, both within the pilot courts and in other trial courts, based on the courts’ individual needs and resources. Expansion of these programs will extend the benefits of early mediation programs to more litigants and more courts in the form of reductions in trials, disposition time, pretrial court events, and litigant costs as well as increased satisfaction with the courts’ services.
This goal could be fostered by the Civil and Small Claims Advisory Committee’s development of a proposal for a Standard of Judicial Administration recommending that courts implement mediation programs for civil cases as part of their core operations. The committee can also further this goal by considering whether legislative or rule amendments should be recommended to facilitate the implementation of mediation programs for civil cases.
During the pilot program period, the AOC has provided support and training to assist courts in developing, implementing, maintaining, and improving mediation programs for civil cases by sponsoring conferences for judges and court administrators focused on program innovations and by providing ongoing technical assistance both to the pilot courts and other courts. By sharing the results of the pilot programs, helping courts identify what they would need to fully implement such programs, developing plans for courts to obtain necessary resources to establish and develop these programs, sharing information about best practices, and offering training and technical assistance, the AOC can provide more widespread support for early mediation programs.
Alternative Actions Considered
The alternatives to permanently establishing mediation programs in the five pilot program courts are to (1) continue to operate mediation programs on a year-to-year basis or (2) discontinue the programs. If the mediation programs are discontinued, all of the benefits for both litigants and the courts identified in the report will be lost. Continuing the mediation programs on a year-to-year basis would create uncertainty among the participating judges, court staff, attorneys, and litigants involved and would reduce the programs’ efficiency.
Not expanding mediation programs in the trial courts would mean other courts and litigants would not realize the benefits achieved in the pilot program courts.
Comments From Interested Parties
The report and recommendations for mediation programs were not circulated for public comment. However, parties, attorneys, mediators, and judges in the participating courts were surveyed and/or interviewed as part of the pilot program study, and their responses are discussed in the attached report. Each pilot court also received drafts of the report chapter outlining findings concerning its program, the overview of the findings concerning all five pilot programs, and the proposed recommendations for review and comment. Staff substantially revised the report based on comments received from the pilot courts.
Drafts of the proposed recommendations and the overview of the evaluation study findings were also sent to members of the Civil and Small Claims Advisory Committee. Some members of the committee expressed concerns, given the current budgetary circumstances, about the proposed recommendations to support continuing mediation programs in the existing pilot program courts and expanding the use of civil mediation programs in other courts. Other members, however, believed that the recommendations reflected an appropriate balance between establishing a goal of expanding mediation programs and beginning to work with the courts to identify and address what resources the courts would need to achieve this goal. The Alternative Dispute Resolution Subcommittee of the Civil and Small Claims Advisory Committee weighed all these views and ultimately unanimously supported the proposed recommendations.
Implementation Requirements and Costs
Mediation programs continue to operate in the five pilot program courts with full or partial support from funds provided from the Judicial Administration Efficiency and Modernization Fund (Mod Fund). Currently the total amount of annual Mod Fund funding allocated to support programs in the five participating trial courts is $1,740,001.
The recommended expansion of mediation programs in
The provision of support and training, including judicial education, to help courts develop, implement, maintain, and improve mediation programs and other settlement programs for civil cases would include costs for these functions. It is anticipated these costs could be largely covered with current AOC staffing and funding.
Recommendation
AOC staff recommends that the Judicial Council:
1. Approve the attached report, Evaluation of the Early Mediation Pilot Programs, and forward it to the Legislature and Governor.
2. In the existing pilot program courts, support the continuation of mediation programs and with the following principal characteristics and the eventual transition of these programs to permanent parts of the courts’ core operations:
a. Both limited and unlimited civil cases are eligible for the mediation program;
b. Mediation is considered at the first case management conference;
c. The court assesses cases to determine if mediation is appropriate and encourages the use of mediation in appropriate cases;
d. The court sets early deadlines for completion of mediation in appropriate cases;
e. The program provides trained mediators and incentives to use the mediators who are part of the court’s program; and
f. Professional staff with expertise in mediation manage the mediation program.
3. Support expansion of mediation programs for civil cases in
4. Direct the Civil and Small Claims Advisory Committee to consider whether legislative or rule amendments should be recommended to facilitate the implementation of mediation programs for civil cases.
5. Direct AOC staff to:
a. Work with the pilot courts to share the results of the pilot programs with other trial courts and encourage these other courts to consider implementing mediation programs for civil cases as part of their core operations;
b. Work with the trial courts to assess their needs and the resources currently available to them in terms of developing, implementing, maintaining, and improving mediation programs and other settlement programs for civil cases. Where existing resources are not sufficient, work with the courts to develop plans for obtaining necessary resources; and
c. Provide support and training to trial courts to help them develop, implement, maintain, and improve mediation programs and other settlement programs for civil cases, including training for judges in assessing civil cases for referral to mediation and technical assistance and information about best practices for programs.
Attachment
1 Title 11.5 of
2 Stats. 2000, ch. 127 § 3 (AB. 2866).
3 Title 11.5 of
4 The report was originally required to be submitted on or before
5 Title 11.5 of
This legislation was automatically repealed effective
6 Code Civ. Proc., § 1734; see also Gov. Code, § 68616.
7 Code Civ. Proc., § 1730.
8
9 Ibid.
10
11
12 Code Civ. Proc.,§ 1730.
13 Stats. 2000, ch. 127, § 3.
14 Code Civ.Proc., §§ 1732, 1735, 1739, and 1742. The implementing rules adopted by the Judicial Council are rules 1640–1640.8 of the California Rules of Court.
15 The Superior Court of
16 As noted above, the statutes authorizing the pilot program were automatically repealed effective