In the field of alternative dispute resolution, much research has gone into how the procedural issues in a mediated settlement can affect its outcome. Procedural issues, meaning issues that arise in the process of settling the dispute, are important to understand as much of the benefit from participating in alternative dispute resolution comes from a more equitable and more comprehensive process than the traditional method of litigation. What is not well understood, however, is how the actual issues being disputed over can affect the quality of the outcome of a dispute.
Take, for example, the case of Mr. and Mrs. Johnson. For many years, the Johnsons enjoyed taking their family on the boat the couple owned and spending time boating around the open waters. Unfortunately, after some years of marriage, Mr. and Mrs. Johnson decided to get a divorce. If Mr. Johnson had no emotional attachment to the boat, he likely would have used it like just another bargaining chip in the division of the couple’s property. However, Mr. Johnson’s family has had this boat for many generations now and it is how he feels attached to his ancestors. Since he has an attachment to this boat, Mr. Johnson decided to fight as hard as possible to keep the boat in his possession, leading to a particularly difficult divorce settlement.
In my research, I refer to issues such as the Johnson’s family boat as the substantive issues of a dispute. These are issues such as who gets to keep the house in a divorce; they are tangible things whose fate is in contention in a dispute. Since such issues are of the utmost importance to those participating in disputes it is important to understand how their presence in a given dispute could affect its outcome. To examine this phenomenon, I looked at our nation’s legal system’s treatment of mediated settlements in family law.
Using cases gathered from the Mitchell Hamline School of Law Mediated Case Law Database, I coded 207 court cases for whether certain substantive issues that are common in family law were present. Family law and the issues that arise in it such as alimony, child custody, and distribution of property were chosen as the focus of my study as disputants are likely to have strong feelings regarding their outcome. I also coded each case for if the mediated settlement between the parties was upheld by the judicial system or not.
Percentage of All Cases in Which a Substantive Issue was Present
Once each case was coded for which substantive issues were present, I queried the dataset and grouped substantive issues together in pairs. Once I queried them, I looked to see if issues that are more difficult to find common ground and compromise over were more prevalent in cases with mediated settlements that were not upheld. I also looked to see if issues that allowed disputants to expand the value available in a dispute and compromise over shared interests resulted in mediated settlements that were upheld more often.
Unfortunately, this strategy didn’t reveal any insights into how the substantive issues affect the quality of a mediated settlement. There was no clear correlation between the issues and the outcome, counter to my hypothesis that there would be. This means that it may be the case that having strong substantive issues is not related to case outcomes.
At the same time, it might be that research on this topic should be done in a different way. First, it would be valuable to take a comprehensive approach to data analysis and code every field of law in the database I used for substantive issues present. This would provide more data points for researchers to use and allow for greater insights into the impact of substantive issues in mediation.
Another lesson I learned through this process is working with those who practice dispute resolution to fill in the gaps in the data could be valuable. Since the cases used in this study are all at the appellate level, they are simply snapshots of the mediated settlements due to the scope of appellate review. Speaking with judges who work in family law could reveal why some cases do or do not reach the appellate level or are even brought to trial. Furthermore, working with mediators themselves could reveal how they understand substantive issues affect the quality of the outcomes of mediated settlements and which issues affect quality more than others.
Finally, there were many procedural factors in the cases I coded that I could not analyze due to the scope of this analysis. Taking an approach that codes both the substantive and procedural issues present in a dispute would be valuable for understanding how every factor in a mediated settlement affects its outcome. This would be a comprehensive endeavor that would require multiple coders to do properly, but ultimately it could allow practitioners to use a comprehensive understanding of what can affect the quality of a dispute to provide higher-quality resolution to those in conflict.
Reed Rouch is a senior at Indiana University Bloomington receiving his Bachelors of Science in Public Affairs from the O’Neill School of Public and Environmental Affairs. Reed is majoring in Law and Public Policy with a particular interest in the law. After graduating he hopes to spend a year serving others before beginning the process of obtaining his law degree.
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