We are pleased to report that many bankruptcy judges responded to our survey on the use of mediation in their courts. The response rate was 26 percent, and we are told this is a very high rate of return. We appreciate the time and effort each of the participating judges expended in this effort and hope you will find this summary of results to be useful. Of course, we caution everyone that this was not a “scientific” survey, and the results prove nothing beyond showing that a sampling of our bankruptcy judges are interested in employing mediation as a dispute-resolution device when doing so will benefit the parties. We also want all readers to know that we do not know the names of the respondents or the districts in which they sit. Indeed, it is possible that we received two or more responses from the same district. It is also possible that responses from the same district are contradictory. We have no way of knowing.
The questions we asked were: (1) Do you use mediation to resolve disputes? (2) Does your district have a mediation rule? (3) If not, has your court considered using the ABI Model Mediation Rule as a starting point or reference point in developing a local rule for your district? (4) Do you have a preference for judicial mediators over private mediators? If so, why? (5) Do you require mandatory mediation? If so, in what types of cases (adversary proceedings, contested matters)? Do you find that mandatory mediation tends to be as successful as voluntary mediation? Do you promote voluntary mediation? (6) How is a mediator selected in your district? (7) Has mediation been beneficial? (8) Do you have any suggestions about how the mediation process should be handled by bankruptcy courts generally? Is mediation beneficial or not? Should it be required?
The first three questions allowed for yes or no answers, so we provide an arithmetic summary for each. The remaining questions allowed for narrative responses, so we provide our summaries along with several quotes. These quotes are not offered to prove the orientation of anyone beyond the anonymous speaker.
On the use of mediation, 77 judges said yes, four said no and one gave no answer. Sixty-one judges reported having a local rule on mediation, 19 reported having no rule and two gave no answer. Two judges reported that their courts have considered the ABI Model Mediation Rule as a starting point or reference point in developing a local rule, 39 said no and 41 had no answer.
Our summaries of the narrative responses to the remaining questions are as follows:
Most judges reported having no preference for judicial mediators over private mediators. Some, but not many, reported cost as a factor for using another judge. Others reported the “benefit” of judicial persuasion. We offer the following quotes as examples of what three judges chose to say:
“In most cases, we find parties prefer judicial mediators because we are free, and sometimes having someone talk to a client who ‘wears the robe’ is more impactful than a private mediator.”
“We use judicial mediation when we think the presence of a judge might bring extra juice or in smaller intractable cases where the parties might not have the money to hire a professional neutral.”
“Judicial mediators should not replace attorney mediators on routine cases. They should be appointed in the exceptional case where a prior mediation was unsuccessful, the dispute is complex requiring a mediator experienced in the handling of complex cases such as a judicial mediator, and the parties are unanimous in expressing the need for a judicial mediator as the best hope of getting the case finally resolved.”
Most of the respondents report they are not in favor of mandatory mediation. Here is what some of them said:
“I require mediation in certain cases even when the parties do not request it; again, it is case-specific, and can be a main case or an adversary. I have not tracked whether voluntary vs. compelled are more or less successful. I do try to advocate for use of mediation. Our court … also has a pro bono mediation program.”
“No, but we encourage mediation in the appropriate situations.”
“In large chapter 11 cases, with numerous preference actions, I impose mandatory mediation if the parties cannot promptly settle the matter without mediation.”
Most respondents reported that the parties may choose the mediator. Some districts have closed registries, whereas others have registries, but no requirement that a mediator be among those listed. Here is what some judges said:
“We have a list of qualified mediators, but usually the parties pick or agree to have one of us judges do it.”
“Parties can choose a private mediator, request a specific judge or request a judge with no particular judge in mind.”
“Whichever judge has time.”
“If the mediator is from the panel of lawyer mediators, the parties select the mediator. If the mediator is a judge, I generally select the mediator.”
There were only two negative responses to the value of mediation; the overwhelming response was favorable. Here are some comments:
“Absolutely. A mediated resolution not only saves judicial time and money for all, but it fully resolves the issues. With appeals, there is no end to litigation. Even an uncomfortable mediated solution is better than the uncertainty and risk of trial.”
“Very much so.”
“Yes. Many cases have settled even in advance of the mediation session.”
The last question sought comments from the judges on the mediation process. Here is what some of them said:
“Private mediation — not judge-conducted mediation — has been hugely beneficial in many of my cases.”
“My court’s alternative dispute resolution program is excellent and is a terrific resource for bench and bar. Although mediation is not mandatory, I believe it should be.”
“I think it should be used as I have described, somewhat sparingly. I don’t want to overburden the volunteer mediators who serve pro bono.”
“I think the judge should raise the idea in every case. It should not be required, except in exceptional circumstances.”
“Mediation is beneficial, and in many cases, it would be fruitful to make it a requirement.”
“Every court should have mediation procedures. Mediation is far less effective if done ‘privately’ without a court order setting forth the parameters of and rules for the mediation.”
“I encourage judges and parties to consider referring any matter that has the potential to be resolved to mediation. Even the referral can move the case on to a problem-solving track from a more contentious track.”
“Strongly in favor of mandatory mediation, with judicial discretion to permit opt-out. The hourly rates charged for a single mediation session are a fraction of what the costs associated with discovery and motion practice [are].”
“Mediation needs to be voluntary. A judge can encourage the parties to do it by raising some concerns about the strengths and weaknesses of their respective positions, but the parties need to see some benefit to be gained by engaging in the process.”
“Should be used in complex disputes that are eating up attorney/court time and imposing significant fees on the case. It is beneficial, but mostly only when the parties (or their attorneys) are already willing. I fear that forced mediation can be wasteful and inefficient.”
We are pleased with the thought that went into all of the responses. We draw the following conclusions: Mediation is thought by many judges to be an effective tool for dispute resolution. Most of the judges reported having a local rule. Only two districts reported using the ABI Model Mediation Rule as a starting point for discussion for developing a local rule. This could reflect a comfort level with existing local rules or a lack of interest in the ABI rule; we don’t know. For now, it is our opinion that the survey results support the Mediation Committee’s decision to move forward with the roll-out of our model rule.