Disputing Irony: A Systematic Look at Litigation About Mediation

Abstract This article takes a unique empirical look at mediation effectiveness and impact by analyzing an extensive database of 1,223 state and federal court decisions from 1999 to 2003 involving mediation-related litigation. The article’s findings reveal an increase in mediation litigation—rising 95 percent over the five-year period—suggesting that mediation may sometimes generate disputes rather than resolve them. Additionally, courts frequently admit mediation evidence despite widespread beliefs in the paramount importance of confidentiality, highlighting a divergence between theory and practice. Key areas of litigation during this time period include enforcement of mediated settlements, duty to mediate, confidentiality concerns, fee disputes, ethics issues, and mediation’s intersection with arbitration. Interestingly, cases involving mediator misconduct are rare, raising questions about whether existing legal norms adequately protect the fairness of the mediation process. The study concludes with recommendations for reform, such as introducing cooling-off periods for mediated settlements and refining confidentiality rules, as well as providing best practices for mediators and advocates to enhance mediation’s effectiveness and reduce the risks of post-mediation litigation.