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Empirical Findings on Court Mediation Reform

Some of the key findings from a three year research project on court mediation reform are now available on SSRN as follows:

1.  Ali, Shahla F., Nudging Civil Justice: Examining Voluntary and Mandatory Court Mediation User Experience in Twelve Regions (February 18, 2018). Cardozo Journal of Conflict Resolution, Vol. 19, Issue 2, pp. 269-288, 2018 .

Abstract: Nudge theory suggests that positive reinforcement to encourage compliance is at least as effective, if not more effective, than traditional directions issued through legislation. This Article tests nudge theory in the context of court mediation reform by examining whether, and if so how, light nudges encouraging voluntary mediation have a differential effect on civil justice outcomes as compared with more robust nudges through mandated mediation processes. A statistical analysis of 2016–2017 civil justice indicators in twelve regions suggests light nudges, (voluntary court mediation programs, or (self-directed resolution), on average associated with higher overall jurisdictional scores for efficiency and non-discrimination. In comparison, robust nudges, (court-mandated mediation processes) show no significant difference in relation to the quality of civil justice, effective enforcement, accessibility and affordability, and impartiality, and effectiveness between voluntary and mandatory mediation systems in the regions examined.

2.  Ali, Shahla F., Practitioners’ Perception of Court-Connected Mediation in Five Regions: An Empirical Study, Vanderbilt Journal of Transnational Law, Oct 2018, Vol. 51, No. 4

Abstract: Courts throughout the world face the challenge of designing court mediation programs to provide opportunities for party-directed reconciliation on the one hand, while ensuring access to formal legal channels on the other. In some jurisdictions, mandated programs require initial attempts at mediation, while in others, voluntary programs encourage party-selected participation. This Article explores the attitudes and perceptions of eighty-three practitioners implementing court mediation programs in five regions in order to understand the dynamics, challenges, and lessons learned from the perspectives of those directly engaged in the work of administering, representing, and mediating civil claims. Given the highly contextual nature of court mediation programs, this Article highlights achievements, challenges, and lessons learned in the implementation of mediation programs for general civil claims. The principal findings indicate that overall, from the perspective of the court mediation practitioners surveyed, practitioners report slightly higher levels of confidence in mandatory mediation programs, higher perceptions of efficiency with respect to voluntary programs, and regard voluntary and mandatory mediation programs with relatively equal perceptions of fairness. Program achievements largely depend on the functioning of the civil litigation system, the qualities and skill of the mediators, safeguards against bias, participant education, and cultural and institutional support.

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