In mid-March 2020, Canadian life as we knew it changed very dramatically. Mediation was able to continue by reason of the collective will of government, the judiciary and, most of all, lawyers and litigants.
Initially, there was an optimistic view that mediations could be adjourned for a few months and take place in person in the late spring or early summer of 2020. Sadly, this was not to be and when mediations which had been rescheduled for this purpose came up for the second time, these mediations universally proceeded remotely.
There were some initial skirmishes over the remote platform. Zoom, which seems to have been designed for mediation in a pandemic despite its actual launch some nine years earlier, received some initial reluctance due to some adverse publicity. These problems were overcome and Zoom has been the “go to” platform for mediation by videoconference for well over one year.
Cooper Mediation set out to conduct a statistical analysis of all mediations conducted for approximately one year leading into the pandemic and one year under pandemic conditions to determine if settlement rates were materially different. Our analysis follows.
In order to put the analysis into context, a few words of explanation are required. “Settlement” means either a complete or partial settlement of the matter being mediated. We looked at matters scheduled for a half-day (3 or 4 hours) or full day (6 hours), depending on the mediator. We looked at two-party, three-party or four or more party mediations. We examined matters that were mediated within the original time budgeted for the mediation and matters that went into “overtime” - more than 6 hours for a full day mediation and more than 3 or 4 hours for a half day mediation.
The pre-COVID period captures a total of 352 half-day and full-day mediations conducted from March 1, 2019 to and including March 13, 2020. The COVID period captures 416 half-day and full-day mediations from March 16, 2020 through March 31, 2021.
What happened under COVID?
While life in many ways shut down, we buckled down and were very busy.
We saw an increase in half-day mediations from 205 to 281 (a year over year increase of 37%). There was a slight decline in full-day mediations from 147 to 135 (a decrease of 8%).
Overall, the settlement rate dipped by 2% during COVID when looking at all mediations by all mediators at Cooper Mediation.
Interestingly, the settlement rate for all half-day matters was virtually identical. By comparison, there was a slightly more meaningful difference in the settlement rate of full-day matters with a decline of 3% during the COVID period.
When one examines the rate of settlement having regard for the number of parties, the settlement rate increased under COVID for two party cases by 3.3%. This may suggest that two party cases lend themselves to remote access mediation: fewer parties, fewer issues, fewer people and fewer personalities.
The settlement rate declined under COVID by 13% for three-party cases and by 8% for four or more parties. This may suggest that with more parties, there is likely to be more complexity and nuance to the negotiations and that an in-person mediation puts the parties, their counsel and the mediator in the best position to tackle these challenges.
If we examine settlement rates in the pre-COVID period, the settlement rate for three-party cases was 17% higher than two-party cases. The settlement rate for four or more party cases was approximately 15% higher than two-party cases and roughly the same as 3 party cases. This suggests that for multiparty cases, there was definitely a benefit to in-person mediation.
Under COVID, the settlement rates for two-party and three-party cases were virtually identical. The settlement rate was surprisingly somewhat higher for 4+ party cases as compared to two party or three party cases (up by about 4%). We believe that this improvement might be attributed to a willingness on the part of the litigants and counsel to stick with the matter a little longer under COVID, given the benefits of working remotely. There is certainly a temptation to end mediations earlier, when one is contemplating commuting time, rush-hour traffic, congestion on public transit, etc.
In our experience, one of the toughest jobs for a mediator is to keep people at and engaged in the discussions and negotiations for a sufficient period of time to allow the process to work and for resolution to be revealed. Our data strongly supports this view.
The percentage of all matters requiring overtime was up to a small extent when comparing the pre-COVID period (21.6%) to the COVID period (24%). While the percentage of settlement for matters requiring overtime dipped by about 10% during COVID, the settlement rate for matters requiring overtime as compared to the settlement rate for matters completed within the original time budget was almost 30% higher before COVID and some 20% higher during COVID.