CDR Associates (1989) claims that mediation is most likely to be successful where: 1) the clients do not have a long record of litigation; 2) there is some developing relationship; 3) the clients have a degree of psychological disinterest; 4) there is enough information to conduct negotiations to achieve an agreement; 5) hostility between the parties is not overpowering in effect; 6) and there is mutual agreement regarding intervention by a third party. An Empirical Analysis of Mediation in the Victorian Litigation Process
Because so little empirical research has been completed on court ordered mediation, there are a lot of disputable questions about its organization and process; its benefits regarding settlement quality, costs and timing savings; and how to differentiate the cases and identifying what are most appropriate for the process. As noted in above research, mediation advocates state that mediation results in higher settlement rates, in comparison with litigation.
Mediation advocates also assert that mediated settlements are having more possibilities of success in being complied with and implemented than those going through litigation or administrative procedures. Given the insufficiency of empirically based research, it must be admitted that much of current information concerning court ordered mediation is based chiefly on thoughtful theory or insight, with few data to support these claims.
Finally, Tyler and Bornstein (2007) conclude that more cross-sectional empirical research should be done to reveal when and under what conditions court ordered mediation should be used. It should be noted that a research project into the use and effectiveness of mediation in the Supreme Court and the County Court of Victoria has been initiated by the Victorian Department of Justice. The project is undertaken by Professor Tania Sourdin and her research team at the Australian Centre for Peace and Conflict Studies at the University of Queensland (Melbourne campus).
Their findings including evaluation information regarding the effectiveness of court ordered mediation is likely to be presented in September 2008. Their research is intended to examine whether mediation results in higher settlement and compliance rates in comparison with unassisted negotiation and litigation. Conclusion Until the early 1980s, the main approach to resolving the conflicts and disputes has been litigation. However, the adversarial legal system is considered, in many cases, to make these conflicts costly, time-consuming, stressful and subject to risk.
From the perspective of the Supreme Court of Victoria, mediation is a process of dispute resolution, alternative to litigation. The point made in this research paper about mediation is that it has taken lawyers and judges almost two decades to wake up to the recognition that mediation is not just another adversarial session. Commercial clients have become aware of this fact for some time and have jumped ahead of legal representatives with various projects of alternative dispute resolution.
Today, the Supreme Court of Victoria realizes that litigation may not be the best way to help the parties to resolve a dispute. Therefore, the Court supports mediation positively. The research in this field shows that mediation in the Victorian Litigation process adds an outside force that moves civil disputes to settlement. Mediation programmes are successful, achieving well on indicators such as time and money savings, certainty, client satisfaction with mediation, and the number of agreements reached.
Taking into account the relatively few studies of such programmes to date, the results of the research in this field offer useful information regarding a number of important issues of mediation in the Victorian Litigation process. It is to be hoped that this analysis will promote more research and debate on the effectiveness of court ordered mediation.
Alternative Dispute Resolution: General Civil Cases, The Use and Provision of ADR in New Zealand, retrieved 25 May 2008, https://www.justice.govt.nz/