9.44Of the 82% of cases that achieved some measure of settlement in mediation, 71% settled all matters in dispute and 11% settled one major matter. Eighty-seven per cent of clients reported satisfaction that the decision reached at the mediation was a fair one. Seventy-nine per cent felt that each party had an equal influence over the agreement, while 78% said that the mediated agreement was close to the legal information they were given before the process began.
9.45Only 5% felt that the mediators had pressured them into agreement. Nineteen per cent felt that they would have reached a more favourable settlement by going to court. The report noted that, though there were inconsistencies, mediation did improve the post-dispute climate and had beneficial effects on the adjustment of members of separating families. The high level of settlement rates showed that the voluntary nature of the referral to mediation seemed to have encouraged the parties to come to agreement, and certainly did not make them take the process less seriously.
Durability of agreements
9.46Follow-up interviews some eight months after agreement confirmed that 86% of agreements were still in place. Of the 14% that were not, most were re-negotiated through a lawyer, with only one case requiring court intervention. In contrast, 42% of clients who failed to reach a mediated agreement needed a court hearing.976 This data is supported by other researchers, who have found a “survival rate” of mediation agreements of between 50% and 88%.977 The Australian statistics on litigation rates for mediated cases are also consistent with other research studies, which found litigation arose in between 4% and 12% of mediated cases which had reached agreement, and between 17% and 35% of cases where mediation had failed978.
9.47Thirteen months after mediation, a study in the evaluation report of court records revealed that: “Less than 5% of successfully mediated cases, compared to 27% of those who failed to reach a mediated settlement, had turned to court for adjudication ....”979 Of those who did achieve a mediated agreement, 23% had resorted to litigation unrelated to the mediated issues.980
Sources of referral
9.48The evaluation report concluded that:
“While mediation should remain voluntary, the role and referral criteria used by the important gatekeepers to the service (legal profession, courts and other non-legal organisations) must be more clearly understood and, if necessary, more standardised. To enhance client-initiated contact there is a need for public education about the existence, purpose and benefits of mediation as an alternative dispute
976 It is interesting to note that 31% of those who failed to reach agreement subsequently recorded a consent order, and only 27% contested the issues that had been raised in mediation. Ibid at 92.
977 Ibid at 93. The report refers to Irving & Benjamin, (1987); Pearson & Thoennes, (1984) amongst others.
978 McIsaac, (1981); Pearson & Thoennes, (1984) and Irving & Benjamin, (1987).
979 Supra at 7.
980 These related to divorce proceedings concerning old matters. See further at 92.