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NUDGING CIVIL JUSTICE: EXAMININGVOLUNTARY AND MANDATORY COURT

MEDIATION USER EXPERIENCE INTWELVE REGIONS

Shahla F. Ali*

ABSTRACT

Nudge theory suggests that positive reinforcement to encouragecompliance is at least as effective, if not more effective, than tradi-tional directions issued through legislation. This Article tests nudgetheory in the context of court mediation reform by examiningwhether, and if so how, light nudges encouraging voluntary media-tion have a differential effect on civil justice outcomes as comparedwith more robust nudges through mandated mediation processes. Astatistical analysis of 2016-2017 civil justice indicators in twelve re-gions suggests light nudges, (voluntary court mediation programs, or(self-directed resolution), on average associated with higher overalljurisdictional scores for efficiency and non-discrimination. In com-parison, robust nudges, (court-mandated mediation processes) showno significant difference in relation to the quality of civil justice, ef-fective enforcement, accessibility and affordability, and impartiality,and effectiveness between voluntary and mandatory mediation sys-tems in the regions examined.

I. OVERVIEW

In recent years, policy makers, economists, and behavioralscientists have examined the use of positive reinforcement to en-courage non-forced compliance with a given social objective.' Thenudge theory approach of behavior change, suggests nudges are atleast as, if not more, effective than traditional directives; for exam-ple, "forced compliance" issued through regulatory legislation. Asdescribed by Thaler and Sunstein, "a nudge . . . is any aspect of

* Associate Professor and Associate Dean (International) & Deputy Director, Program inArbitration and Dispute Resolution, Faculty of Law, University of Hong Kong. The authorthanks the Government of Hong Kong's University Grants Committee for its support through itsHKU GRF Grant (HKU 17603215).

1 RICHARD H. THALER & CASS R. SUNSTEIN, NUDGE (2008).

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the choice architecture that alters people's behavior in a predict-able way without forbidding any options ... Nudges are not man-dates. Putting fruit at eye level counts as a nudge. Banning junkfood does not." 2

Fields as diverse as business management, health and safety,and corporate culture have applied nudge theory to influence be-havior.' While effective in many cases, nudge designs are not with-out criticism. Key critiques of nudge theory include lack ofevidence on whether, and how, nudges help people "make long-term behavior changes."' In addition, there are concerns overshort-term fixes5 that may ignore underlying psychological mo-tivators of behavior that are the target of such nudges.6

Cognizant of such critiques, this Article examines whether,and the extent to which, nudges, oriented toward encouraging me-diated resolution through court encouragement, have a differentialeffect on civil justice outcomes. The Article uses indicators fromtwelve jurisdictions to compare different mediation processes andinvestigates whether and how variation in civil mediation policy(mandated or voluntary) affects variation in judicial efficiency,confidence in courts, and public perceptions of justice.

II. VOLUNTARY AND MANDATORY MEDIATION DESIGNMOTIVATIONS

The design of mandated and nudged-voluntary-mediationmodels varies across regions." While the mediation process ordina-

2 Id. at 6.3 Id.4 Nina Lakhani, Unhealthy Lifestyles Here to Stay, in Spite of Costly Campaigns, INDEPEN-

DENT (Dec. 7, 2008), http://www.independent.co.uk/life-style/health-and-families/health-news/unhealthy-lifestyles-here-to-stay-in-spite-of-costly-campaigns-1055693.html.

5 Cass R. Sunstein, Nudging and Choice Architecture: Ethical Considerations, HARVARDLAw SCH., DISCUSSION PAPER No. 809, 2005, http://ssrn.com/abstract=2551264.

6 Sander van der Linden, A Response to Dolan, BEHAVIOURAL PUBLIC POLICY 209 (AdamOliver ed., 2013).

7 See generally SHAFILA F. ALI, COURT MEDIATION REFORM: EFFICIENCY, CONFIDENCEAND PERCEPTIONS OF JUSTICE (forthcoming 2018). With the kind permission of the publisher,selected findings from the forthcoming book have been included in this Article. For full discus-sion see the forthcoming publication.

8 REGULATING DISPUTE RESOLUTION: ADR AND ACCESS TO JUSTICE AT THE CROSSROADS

(Felix Steffek et al. eds., 2013) [hereinafter REGULATING DISPUTE RESOLUTION]; see also ALI,supra note 7.

NUDGING CIVIL JUSTICE

rily presupposes participation of two or more consenting parties,9parties may arrive at the process in numerous ways with varyinglevels of encouragement. Whether through robust encouragementor voluntary selection, once parties engage in facilitative mediationprocesses, the final outcome rests in the hands of the parties.10

As discussed elsewhere," mediation policy scholars have de-scribed how variation in mediation program design exists with re-spect to the "initiation control" 12 of mediation.1 3 A spectrum ofapproaches exist: from mandatory assignments for all cases under aparticular monetary amount or case type; compelled orders for me-diation (characterized in some cases as case settlement); 14 to infor-mal party-directed initiation of mediation.15 As described, theintermediary court mediation sessions vary. In some scenarioscourts provide judges while in others, private mediators facilitatethe process.1 Furthermore, the role of parties in relation to theirrespective duties concerning engagement in mediation also differs.Some states use "opt-out" rules where parties to a particular case-type are automatically subjected to mediation unless there is agood reason for opting out." The "opt-in" mechanism implementsadverse cost consequences if parties unreasonably refuse to partici-pate in mediation, or behave unreasonably.'

At a broad level, the desire to address public policy concernsfuels the adoption of mediation practices across many jurisdic-tions.19 Some jurisdictions cite mediation as means toward enhanc-ing communication and strengthening interpersonal relationships.2 0

For instance, many jurisdictions use mediation as an innovative

9 See Jacqueline Nolan-Haley, Consent in Mediation, 14 Disp. RESOL. MAG. 4 (2007).10 Id.11 ALI, supra note 7.12 REGULATING DISPUTE RESOLUTION, supra note 8.13 Carrie Menkel-Meadow, Variations in the Uptake of and Resistance to Mediation Outside

of the United States, in CONTEMPORARY ISSUES IN INTERNATIONAL ARBITRATION AND MEDIA-TION 189, 197 (Arthur Rovine et al. eds., 2015).

14 Mordehai (Moti) Mironi, Mediation v. Case Settlement: The Unsettling Relations BetweenCourt and Mediation-A Case Study, 19 HARV. NEGOT. L. REv. 173 (2014) (discussing the dis-tinction between mediation, characterized by an interest-based, party-focused process and casesettlement, a rights-based positional discourse).

15 Menkel-Meadow, supra note 13.16 Id.17 Id

18 Id.19 See generally REGULATING DISPUTE RESOLUTION, supra note 8; see also Elizabeth Ellen

Gordon, Why Attorneys Support Mandatory Mediation, 82 JUDICATURE 224 (1999).20 Gordon, supra note 19.

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way to reduce case backlog.2 1 Many countries see mediation as apotential platform to attain efficacy in the dispute management

22 2process, achievement of regional integration objectives,2 3 enhancement of cohesive social bonds, relational capital, and peacebuilding.24 At the global level, soft law-making bodies, such as theUnited Nations Commission on International Trade Law ("UNCI-TRAL"), generally leave open the question of mediation programdesign-inclusive of voluntary and mandatory modalities-formember state decision-making.2 5

This convergence of evolving public policy expectations hasresulted in a proliferation of mediation practices. Voluntarily initi-ated mediation assumes the parties opt for mediation out of freewill, without direct court supervision of the process.2 6 Court-man-dated mediation models integrate direct court supervision into me-

27diation process. Typical supervisory measures includecompulsory attendance or participation in mediation conferencesprior to adjudication. 28 Other mandatory mediation practices im-pose "good faith" requirements, essentially setting a qualitative barfor courts to assess disputants' participation in pre-adjudicationmediation.2 9 This is often achieved through formal reporting obli-

21 GLOBAL TRENDS IN MEDIATION 259 (Nadja Alexander ed., 2006); see also Robert F.Peckham, A Judicial Response to the Cost of Litigation: Case Management, Two-Stage DiscoveryPlanning and Alternative Dispute Resolution, 37 RUTGERS L. REV. 253 (1984).

22 See Mary F. Radford, Advantages and Disadvantages of Mediation in Probate, Trust, andGuardianship Matters, 1 PEPP. Disp. RESOL. L.J. 241 (2000); see also JAY FOLBERG ET AL.,RESOLVING DIsPuTEs: THEORY, PRACTICE, AND LAw 226 (2005).

23 THALER & SUNSTEIN, supra note 1; see also Jacqueline Nolan-Haley, Mediation: The NewArbitration, 17 HARv. NEGOT. L. REV. 61, 70-72 (2012); see also Francesca De Paolis, ItalyResponds to the EU Mediation Directive and Confronts Court Backlog: The New Civil CourtsMandatory Mediation Law, 4 N.Y. Disv. RESOL. LAw. 41 (2011); see also Jacqueline M. Nolan-Haley, Is Europe Headed Down the Primrose Path with Mandatory Mediation, 37 N.C. J. INT'LL. & COM. REG. 981 (2011).

24 ROGER FISHER ET AL., GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING

IN (2d ed. 1991).25 G.A. Res. 57/18, annex, Model Law on International Commercial Conciliation of the

United Nations Commission on International Trade Law, art. 3 (Jan. 24, 2003).26 See Gary Smith, Unwilling Actors: Why Voluntary Mediation Works, Why Mandatory Me-

diation Might Not, 36 OSGOODE HALL L.J. 847 (1998); see also Jacqueline Nolan-Haley, Media-tion: The Best and Worst of Times, 16 CARDOZO J. CONFLIcr RESOL. 731, 737-38 (2014).

27 Melissa Hanks, Perspectives on Mandatory Mediation, 35 U.N.S.W. L.J. 929 (2012); seealso Donald T. Saposnek, Clarifying Perspectives on Mandatory Mediation, 30 FAM. & CONCILI-ATION CT. REV. 490 (1992).

28 David S. Winston, Participation Standards in Mandatory Mediation Statutes: You CanLead a Horse to Water, 11 Omo ST. J. ON Disp. RESOL. 187 (1996).

29 Id. at 189-91, 197-98; see also Alexandria Zylstra, The Road from Voluntary Mediation toMandatory Good Faith Requirements: A Road Best Left Untraveled, 17 J. AM. ACAD. MATRIM.L. 69 (2001).


gations on the supposedly neutral mediator to the court, and insome instances such a mediator may even be required to testify. 0

Finally, in several instances, courts have imposed penalties or costson perceived non-cooperative disputants.3 1

Despite the above overarching public policy basis for media-tion, the degree of movement along the voluntary-mandatoryspectrum seems to vary from one jurisdiction to another withoutdiscernible global patterns or trends. Instead, different nationalexperiences point to prominent influence of unique domestic fac-tors in a country's eventual adoption of a particular mediationmodel, whether voluntary or mandatory.3 2 A significant factor thatinfluences the adoption of a given mediation model in a jurisdic-tion seems to be society's cultural and societal approaches to dis-pute settlement. The nature of a given dispute also seems to bean important factor in mediation models across jurisdictions. Do-mestic disputes have generally been referred to mediation andhave registered high settlement rates in comparison with othertypes of civil disputes.3 4 Suggestions have also been made thatcommunal disputes, especially those focusing on narrow but inclu-sive issue areas like environmental protection and landfill reclama-tion ought to be preferentially subjected to mediation.35

III. STATISTICAL ANALYSIS OF CIVIL JUSTICE OUTCOMES FORNUDGED AND COMPELLED MEDIATION

A. Methodology

This Article examines the range of mandatory and nudge me-diation design; the relationship between mediation incentives and

30 Winston, supra note 28, at 188-90, 197-98.31 Id. at 195-96.32 REGULATING DISPUTE RESOLUTION, supra note 8; see also Gordon, supra note 19; see also

Hanks, supra note 27, at 929-32.33 See Ronda Roberts Callister & James A. Wall, Japanese Community and Organizational

Mediation, 41 J. CONFLIUCr RESOL. 311 (1997).34 Victoria E. Solomon, Divorce Mediation: A New Solution to Old Problems, 16 AKRON L.

REV. 5 (2015); see also Nancy Ver Steegh, Yes, No, and Maybe: Informed Decision MakingAbout Divorce Mediation in the Presence of Domestic Violence, 9 WM. & MARY J. WOMEN & L145 (2002); see also Penelope E. Bryan, Killing Us Softly: Divorce Mediation and the Politics ofPower, 40 BUFF. L. REV. 441 (1992).

35 Sanda Kaufman, Mediation in Environmental Disputes, in 2 CONFLicr RESOLUTION 46(Keith William Hipel ed., 2009); see also Joseph B. Stulberg, Theory and Practice of Mediation: AReply to Professor Susskind, 6 VT. L. REV. 85, 110-13 (1981).

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judicial efficiency; and perceptions and overall confidence in justicesystems. The analysis examines these associations within the con-text of selected mediation centers in North America, Europe, andEast Asia. The research methodology employed relies primarilyon indicators of both civil justice statistics and opinion data.

An independent sample t-test was conducted to compare rela-tive mean scores for efficiency, quality of civil justice, accessibilityand affordability, impartiality, enforcement, delay, and level of dis-crimination in voluntary and mandatory court mediation condi-tions. The independent sample t-test was conducted on court andopinion data to determine the association between variation in civiljustice reform and judicial efficiency, perceptions of justice andoverall confidence in the court system. Specifically, the test com-pared court-mandated versus voluntary mediation structures withvariation in user experience, including perceptions of efficiency, ac-cessibility and affordability, impartiality, level of discrimination,and enforcement.

A non-random selection of six regions in a "mandatory media-tion" group and six in a "voluntary mediation" group were chosento provide for relative comparability. Each group of six include atleast two common law and two civil law jurisdictions, with at leasttwo members of the Organisation for Economic Co-operation andDevelopment ("OECD") per group. Within the civil law group-ings, both primary and secondary civil law jurisdictions are se-lected. In particular, focus was on examining selected civil court-mediation programs in the following jurisdictions: court-mandated(United States federal courts, Australian federal courts, India,China, Japan and Italy) and voluntary (United Kingdom, HongKong, France, Malaysia, Singapore and the Netherlands).

Judicial and governance indicators measuring efficiency, qual-ity of civil justice, accessibility and affordability, impartiality, en-forcement, delay, and level of discrimination were selected fromsurvey databases, including the World Bank Group's WorldwideGovernance Indicators ("WGI"), the World Economic Forum'sGlobal Competitiveness Report ("GCR"), and the World JusticeProject's Rule of Law Index ("Rule of Law Index"). This data wasanalyzed by country and coded according to judicial mediation ap-proach. The WGI is based on more than thirty individual datasources produced by various survey institutes, think tanks, non-governmental organizations, international organizations, and pri-


vate sector firms.36 GCR derives its indicators from the Interna-tional Monetary Fund, the World Economic Forum, and theExecutive Opinion Survey.37 General public polling ("GPP") 3 8

and qualified respondent questionnaires ("QRQs") 39 contribute tothe WJP indicators.4 0 The indicators compared are derived fromthe following definitions:

Efficiency of Legal Framework in Settling Disputes: This indica-tor appears in the GCR. It measures the efficiency of the legalframework in settling disputes. Data was collected from the Ex-ecutive Opinion Survey where participants rate the efficiency ofthe legal framework in their countries on a one-to-seven scale.Data from the World Economic Forum was also used in generat-ing the results.4 1

Accessibility and Affordability: This indicator appears in theWorld Justice Project Rule of Law Index. It indicates people'sawareness of available remedies and the accessibility and af-fordability of courts, legal advice, and representation. It also ex-amines the extent to which court procedures and costs affect theaccessibility and affordability of civil justice.42

Impartial and Effective ADR: This indicator appears in the Ruleof Law Index. It measures the accessibility, impartiality, effi-ciency, and the effectiveness in enforcing decisions reachedthrough mediation. It also examines whether mediation is freeof improper influence.4 3

Quality of Civil Justice: This ranking is included in the Rule ofLaw Index and measures the overall ranking of civil justicesystems.

36 Worldwide Governance Indicators, WORLD BANK, http://info.worldbank.org/governance/wgi/index.aspx#home (last visited Jan. 29, 2018) (Under "Documentation" tab).

37 WORLD ECON. F., THE GLOBAL COMPETITIVENEss REPORT 2014-2015 537-45 (2014),http://www3.weforum.org/docs/WEFGlobalCompetitivenessReport-201415.pdf.

38 WORLD JUST. PROJEcr, RULE OF LAW INDEX 2015 15 (2015), https://worldjusticeproject.org/sites/default/files/documents/roli_2015 0.pdf. The project is conducted by local polling com-panies using a representative sample of 1,000 respondents in the three largest cities of eachcountry.

39 Id. (consisting of close-ended questions completed by practitioners and academics).40 See generally WORLD JUST. PROJEcr, VARIABLES USED TO CONSTRUCT THE RULE OF

LAW INDEX (2015), https://worldjusticeproject.org/sites/default/files/roli-tov.pdf (describing indetail sources for individual indicator).

41 WORLD ECON. F., supra note 37, at 538.42 WORLD JUST. PROJEcr, supra note 38, at 28-29.43 Id. at 31-32.

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No Unreasonable Delay: This indicator appears in the Rule ofLaw Index. It indicates the level of delay in adjudicating dis-putes and general perception of delay.

Level of Discrimination: This indicator appears in the Rule ofLaw Index. It indicates the extent to which a person's economicand social status, e.g., sex, race, religion, place of origin, or sex-ual orientation affect one's access to civil justice."

Effective Enforcement: This indicator appears in the Rule ofLaw Index. It indicates levels of effectiveness in enforcing judg-ments and the delays in enforcing decisions.45

B. Limitations

A number of limitations must be acknowledged. First, giventhe non-random, small-n sample, such findings cannot be consid-ered generalizable. A different country selection may lead to anentirely different set of research findings. Second, given the highstandard deviations reported, the level of confidence in the find-ings is not high. Third, the mandatory mediation group includestwo of the most populated countries in the world with relativelyrecent introduction of modernized court systems, which further in-fluences comparative outcomes. Fourth, correlation of changes incivil justice systems and perceptions of efficiency, justice, and con-fidence in the aggregate are not a sign of a causal relationship.4 6

At the same time, in many cases civil justice quality indicators andcivil justice design mutually influence one another. For example,the quality of a given civil justice system may directly effect thepreferences for a particular form of mediation. Fifth, a diversity ofexternal, exogenous, and intervening variables, including court fi-nancing, cultural factors, and wider socio-political environmentsalso impact program outcomes and mediation program design.

It must also be acknowledged that the question of voluntary ormandatory program design is highly context dependent. As notedin an earlier study of mandatory and voluntary programs, "the dif-ferences in the structure and court environments of . .. programsmean that each program . . . is unique: they cannot simply be

44 Id. at 29.45 Id. at 31.46 See generally AL, supra note 7.


lumped together and viewed generically."1 7 While this Article ex-plores the association between mediation program types and civiljustice indicators, the results must also be seen as reflecting theunique conditions of each particular program; "any cross-programcomparisons must therefore take into account the impact ofprogrammatic and environmental differences on these results."4 8

In addition, given the small sample size of the country case studies(n=12), lack of policy uniformity in some cases, and the fact is toco-exist, the results cannot be considered generalizable, but ratheraim at offering initial insights into the dynamics of distinct civil me-diation policy approaches. Such relationships suggest, for example,that in environments of higher reported discrimination, safeguardsaddressing implicit bias,4 9 and lax civi 5 0 and procedural 5' justicecompliance will be necessary.

Future studies will continue to refine and develop increasinglymore accurate approaches to the analysis of civil mediation reformand experiences of justice. Insights from practice will no doubt as-sist in outlining directions for further study with the wider objec-tive of developing a court system responsive to user needs. Thisbeing the case, several key insights may be drawn from the study asfollows.

C. Key Findings

The key findings of the comparative statistical analysis of civiljustice indicators suggest that, on average, sampled regions imple-menting voluntary or nudged court mediation programs are associ-ated with statistically significant higher overall jurisdictional scoresfor efficiency and non-discrimination with no significant differencein relation to the quality of civil justice, effective enforcement, ac-

47 JUD. COUNCIL OF CAL., EVALUATION OF THE EARLY MEDIATION PILOT PROGRAMS 4(2004), http://www.courts.ca.gov/documents/empprept.pdf.

48 Id.49 Carol Izumi, Implicit Bias and the Illusion of Mediator Neutrality, 34 WASH. U. J. L. &

POL'Y 71 (2010).50 See Lauren Edelman, Legal Ambiguity and Symbolic Structures: Organizational Mediation

of Civil Rights Law, 97 AM. J. Soc. 1531, 1531-76 (1992); see MALCOLM FEELEY, THE PROCESSIS THE PUNISHMENT: HANDLING CASES IN A LOWER CRIMINAL COURT (1979); see CatherineAlbiston, The Rule of Law and the Litigation Process: The Paradox of Losing by Winning, 33 L.& soc'Y REV. 869, 896-910 (1999); see HAZEL GENN, PATHS TO JUSTICE: WHAT PEOPLE DoAND THINK ABOUT GOING To LAw (1999) [hereinafter GENN, PATHS TO JUSTICE]; HAZELGENN, JUDGING CIVIL JUSTICE (2010) [hereinafter GENN, JUDGING CIVIL JUSTICE].

51 FEELEY, supra note 50; see also Albiston, supra note 50.

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cessibility and affordability, and impartiality and effectiveness be-tween voluntary and mandatory mediation systems.52

While such aggregate regional mediation program data is in-formative, it is important to note the diversity of external, exoge-nous, and intervening variables including court financing, culturalfactors, and political environment that also impact program out-comes. As noted, given the small sample size (n=12) and lack ofpolicy uniformity in some jurisdictions, the results cannot be con-sidered generalizable, but rather aim at offering initial insights intothe efficacy of diverse civil mediation policy approaches and outlin-ing directions for further study with the wider socio-political objec-tive of developing a court system responsive to user needs.

1. Efficiency of the Legal Framework in Settling Disputes

In examining the efficiency of legal frameworks in settling dis-putes, an independent-sample t-test was conducted to comparemean rankings for efficiency in voluntary and mandatory court me-diation conditions. In the countries examined, voluntary mediationjurisdictions were associated with significantly higher efficiencyrankings (M=10.33, SD=8.82) than mandatory mediation jurisdic-tions (M=46.17, SD=45.26, t(6)=-1.90343, p=.043067). Accordingto the independent sample t-test, such differences can be consid-ered statistically significant.

TABLE 1 EFFICIENCY (RANKING)

Std. Std. ErrorEfficiency of Legal Framework* N Mean Deviation Mean

Voluntary 6 10.3 8.82 3.6Mandatory 6 46.17 45.26 18.47

* The t-value is -1.90343. The p-value is .043067. The result is significant at p < .05. Thefigures represent the mean numerical rank.

In examining the mandated mediation countries compared,the following observations can be made. According to the2016-2017 WGI, the overall average numerical rank for efficiencyof the legal framework in settling disputes among mandatory medi-

52 Au, supra note 7.53 The result is significant at p < .10.


ation countries was 46.17 out of 138 countries.54 This is an averageof thirty-six positions lower than the voluntary court mediation ju-risdictions compared. 5 The United States ranked 21 in terms ofefficiency of its legal framework in settling disputes,5 6 while Aus-tralia ranked 27. Italy ranked 136,"" while India ranked 322,59and Japan ranked 15 in terms of the efficiency of its legal frame-work in settling disputes.? China ranked 46.61 Clearly, a variety offactors influence a country's overall efficiency score, including in-vestment in the judiciary, personnel, and average length of courtproceedings. It is perhaps also due to a desire for greater efficiencythat mandated mediation programs are introduced.

Countries with voluntary court mediation programs, scoreslightly higher: with an average rank of 10.33 out of 138 countrieswith regard to the efficiency of the legal framework in settling dis-putes. According to the 2016-2017 GCR, the United Kingdomranked 6 in terms of the efficiency of its legal framework in settlingdisputes,6 2 the Netherlands ranked 12,63 Singapore 1,64 Malaysiaranked 9,65 Hong Kong ranked 2," while France ranked 22.67

2. Quality of Civil Justice

In examining relative scores for the quality of civil justice, anindependent sample t-test was conducted to compare the meanrankings of civil justice quality in voluntary and mandatory courtmediation conditions. In the countries examined, voluntary media-tion jurisdictions were associated with slightly higher quality ofcivil justice rankings (M=17.5, SD =17.37) than mandatory media-tion jurisdictions (M=41.5, SD=32.53, t(6)=-1.59399, p=.071011).

54 2016-2017 WGI, Worldwide Governance Indicators, WORLD BANK, http://info.worldbank.org/governance/wgilindex.aspx#home (last visited Jan. 29 2018) (Under "Documentation" tab).

55 Id.56 WoRo ECON. F., THE GLOBAL COMPETITIVENESs REPORT 2016-2017 356-57 (2016)

http://www3.weforum.org/docs/GCR2016-2017/05FullReport/TheGlobalCompetitivenessReport2016-2017_FINAL.pdf.

57 Id. at 102-03.58 Id. at 212-13.59 Id. at 202-03.60 Id. at 233-34.61 Id. at 146-47.62 WORLD ECON. F., supra note 56, at 354-55.63 Id. at 276-77.6 Id. at 318-19.65 Id. at 250-51.66 Id. at 196-97.67 Id. at 178-79.

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However, according to the independent sample t-test, such differ-ences cannot be considered statistically significant.6 8

TABLE 2 QUALITY OF CIVIL JUSTICE (RANKING)

Std. Std. ErrorQuality of Civil Justice* N Mean Deviation Mean

Voluntary 6 17.5 17.37 7.09Mandatory 6 41.5 32.53 32.53* The t-value is -1.59399. The p-value is .071011. The result is not significant at p < .05. Thefigures represent the mean numerical rank.

In examining the mandated mediation countries compared,the following observations can be made. According to the 2016WGI, mandated mediation countries reflect a slightly lower overallranking of 41.5 out of 113 countries in terms of the quality of civiljustice. The United States ranked 2869 and Italy ranked 46.10 Aus-tralia's civil justice ranking was 14,11 Japan's ranking was 672 andIndia was ranked at 93.7 Finally, the rank for China's system ofcivil justice was 62. It is possible that lower civil justice quality,on average, in these jurisdictions, incentivises diversion of casesinto mandated mediation programs.

Countries with voluntary court mediation programs in placereceived a slightly higher average ranking of 17.5 out of 113 coun-tries in the quality of civil justice reported. It may be that accessi-bility of options for resolution are associated with positiveperceptions of the quality of civil justice or, alternatively, highercivil justice quality may provide less incentive for mediated casediversion, and therefore support voluntary program design. Ac-cording to the Rule of Law Index 2016, the rank for the UnitedKingdom's civil justice was 16,7 the Netherlands ranked 1,76 Singa-

68 The result is significant at p <.10.69 See WORLD JUST. PRomecr, RULE OF LAW INDEx 2016 153 (2016), https://worldjusticepro

ject.org/sites/default/files/documents/RoLlFinal-DigitalO.pdf.70 Id. at 98.71 Id. at 51.72 Id. at 100.73 Id. at 95.74 Id. at 69.75 WORLD JUST. PROJECT, supra note 69, at 152.76 Id. at 117.


pore ranked 4,77 Malaysia ranked 49,78 and Hong Kong ranked12.7 France ranked 23.80

3. Accessibility and AffordabilityAn independent-sample t-test was conducted to compare the

mean percentile scores for accessibility and affordability as mea-sured by citizen's awareness of available remedies for dispute reso-lution and the accessibility and extent to which court proceduresand costs affect accessibility and affordability of courts in voluntaryand mandatory court mediation conditions. In the countries ex-amined, there was no statistically significant difference in averagemean scores for accessibility and affordability between voluntaryprograms (M=62.50, SD=10.62) and mandatory mediation pro-grams (M=51.83, SD=13.24, t(6)=1.60301, p=.0700070). It is possi-ble that more accessible and affordable jurisdictions have lessincentive to mandate alternatives, such as mediation, to bring civiljustice costs in check. According to the independent sample t-test,the results are not statistically significant.81

TABLE 3 ACCESSIBILITY AND AFFORDABILITY (PERCENTILE)

Std. Std. ErrorAccessibility and Affordability* N Mean Deviation MeanVoluntary 6 62.5 10.62 3.87Mandatory 6 51.83 13.24 5.40* The t-value is 1.60301. The p-value is .070007. The result is not significant at p < .05. Thefigures represent the mean country percentiles.

In examining mean percentiles for accessibility and af-fordability in the mandated mediation countries, a slightly loweroverall score of 51.83 on a 100-point scale is reported, as comparedwith countries implementing voluntary systems. According to theRule of Law Index 2016, in terms of the accessibility and af-fordability of the civil justice system, the United States scored 4182

77 Id. at 134.78 Id. at 110.79 Id. at 93.80 Id. at 84.81 The result is not significant at p < .05.82 WORLD JUST. PROJEcr, supra note 69, at 21; see also Ralph Sutton, With America's Poor

Record on Civil Justice, Shouldn't we Encourage Litigation Finance?, THE HILL (Aug. 17, 2015),http://thehill.com/blogs/congress-blog/judicial/251086-with-americas-poor-record-on-civil-justice-shouldnt-we-encourage. The United States ranks 65th in the category of accessibility and af-

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and Australia scored 57.83 This may be explained by the relativelylow predictability of legal costs. India's score was 31,84 Japan'sscore was 67,85 while Italy's score was 56.86 China's accessibilityand affordability was 59.81

For countries with voluntary court mediation programs inplace, overall, we see a slightly higher average accessibility and af-fordability score of 62.5 on a 100-point scale.88 According to theRule of Law Index 2016, the United Kingdom's score for accessi-bility and affordability of the civil justice system was 56,89 which islower than average for countries within the European Union("E.U."), European Free Trade Association ("EFTA"), and NorthAmerica. The problem of unpredictable legal costs persists in En-glish civil procedure.90 The Netherlands score was 78,91 Malaysia'swas 5092, Singapore's was 63,93 and Hong Kong's was 66.94 In termsof the accessibility and affordability of the civil justice system inFrance, their score was 62.

4. Impartial and Effective ADR

In comparing impartiality and effectiveness of ADR systems,as measured by the effectiveness of enforcing decisions reachedthrough mediation and whether mediation is free of improper in-fluence, an independent-sample t-test was conducted to comparethe mean scores in voluntary and mandatory court mediation con-ditions. In the countries examined, while voluntary mediation pro-

fordability of the civil justice system; countries such as Botswana and Pakistan also rank 65. Ithas been suggested that the extreme economic imbalance has favoured parties with the deepestpocket. The costs of obtaining quality counsel, trial discovery, witness preparation, jury research,and appeal (if any) are so high that businesses and individuals without substantial financial re-sources simply cannot afford to pursue their interests. There is also an absence of publicly ad-ministered fee schedules and the rejection of fee-shifting has led to unpredictable outcomes anddisproportionate legal costs.

83 WORLD JUST. PROJECT, supra note 69, at 51.84 Id. at 95.85 Id. at 100.86 Id, at 98.87 Id. at 69.88 Id. at 15.89 WORLD JUST. PROJECT, supra note 69, at 152.9o CRISTOPHER HODGES ET AL., THE COSTS AND FUNDING OF CIVIL LITIGATION: A Com-

PARATIVE PERSPECTIVE 302 (2010).91 WORLD JUST. PROJECT, supra note 69, at 117.92 Id. at 110.93 Id. at 134.94 Id. at 93.95 Id. at 84.

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grams were associated with slightly higher impartial and effectiveADR scores (M=79.17, SD=5.11) as compared with mandatory me-diation programs (M=73.83, SD=14.02), t(6)=0.87535, p=.20096),nevertheless, such difference is not statistically significant. 9 6

TABLE 4 IMPARTIALITY/EFFECTIVENESS (PERCENTILE)

Std. Std. ErrorImpartial and Effective* N Mean Deviation MeanVoluntary 6 79.17 5.11 2.54Mandatory 6 73.83 14.02 5.72* The t-value is 0.87535. The p-value is .20096. The result is not significant at p < .05.

In examining the scores of the mandated mediation countriescompared, on average, they reflect a slightly lower overall averagescore of 73.83 on a 100-point scale in terms of impartial and effec-tive ADR." Some scholarship has suggested that mandatory ADRprograms may, at times, face challenges delivering impartial re-sults; when sufficient skill has not yet developed in order to man-age power imbalances and repeat player dynamics.98 According tothe Rule of Law Index 2016, the United States' impartial and effec-tive ADR score was 8099 This meets the average scores withinE.U. and EFTA countries. In Australia, the score for impartial andeffective ADR was 89.10 The score was particularly high: it is esti-mated that at least 90% of civil disputes settle without a courthearing."o' India's score was 57;102 Japan 89;103 Italy 66;104 andChina 62'0s.

For countries with voluntary court mediation programs inplace, there is a slightly higher average score of 79.17 on a 100-

96 The result is significant at p < .10.97 WORLD JUST. PRoJECT, supra note 69.98 Marc Galanter, Why the 'Haves' Come Out Ahead: Speculations on the Limits of Legal

Change, 9 L. & Soc. REV., 95, 95-160 (1974); see FEELEY, supra note 50; see Albiston, supranote 50; see GENN, PATHS TO JUSTICE, supra note 50; see GENN, JUDGING CIVIL JUSTICE, supranote 50.

99 WORLD JUST. PROJECT, supra note 69, at 153.100 Id. at 51.101 HODGES, supra note 89.102 WORLD JUST. PROJECT, supra note 69, at 95.103 Id. at 100.104 Id. at 98.105 Id. at 69.


point scale for impartial and effective ADR. 1 0 6 The specific coun-try breakdowns can be examined as follows: according to the Ruleof Law Index, the United Kingdom's score was 77,07 meeting theaverage of countries in a similar economic category; the Nether-lands overall score was 83;10 Malaysia scored 70;109 Singapore'swas 80;110 Hong Kong's reflected the average at 81.111 France'sscore was 84.112

5. Level of Discrimination

With regard to examining the relationship between mediationprogram type to levels of discrimination within the civil justice ex-perience, an independent-sample t-test was conducted to comparethe mean scores for the absence of discrimination ("no discrimina-tion") in voluntary and mandatory court mediation conditions. Inthe countries examined, voluntary mediation programs were asso-ciated with significantly higher percentiles associated with "no dis-crimination" (M=74.5, SD=15.25) than mandatory mediationprograms (M=58.33, SD=19.69, t(5)=1.58965, p=.071499). Accord-ing to the independent sample t-test, such difference is statisticallysignificant.1 1 3

TABLE 5 No DISCRIMINATION (PERCENTILE)

Std. Std. ErrorNo Discrimination* N Mean Deviation MeanVoluntary 6 75.5 16.46 6.71Mandatory 6 57.33 17.55 7.16* The t-value is 1.84873. The p-value is .04712. The result is significant at p < .05.

Overall, the mandated mediation regional scores reflect alower average value for "no discrimination" of 57.33 on a 100-pointscale. According to the Rule of Law Index 2016, the United Statesscore for "no discrimination" was 46,114 which is below average.15

106 Id.107 Id. at 152.108 wORLD JusT. PROJECT, supra note 69, at 117.109 Id. at 110.110 Id. at 134.111 Id. at 93.112 Id. at 84.113 The result is not significant at p < .05.114 WORLD JUST. PROJECT, supra note 69, at 153.

2018] NUDGING CIVIL JUSTICE 285

Australia's score was 65116, India's score was 43,117 and Japan'sscore was 88118. Finally, Italy's score for no discrimination was59119 and China's was 43.120 It is important then, that in environ-ments of higher reported discrimination, effective safeguards beput in place including adequate training and accessible grievancemechanisms, to address the possibility for lax civil rights1 2 1 andprocedural justice compliance. 1 2 2

For countries with voluntary court mediation programs, thereis a slightly higher average score for "no discrimination" of 75.5 ona 100-point scale. According to the Rule of Law Index 2016, theUnited Kingdom's score for no discrimination was 66,123 whileFrance scored 70.124 The Netherlands scored 92,125 Singapore'sscore was 94,126 Malaysia 51,127 while Hong Kong's score was 80.128

These findings suggest that in environments of higher reporteddiscrimination, safeguards including those aimed at addressing im-plicit bias, 12 9 and lax civi 1 30 and procedural1 3 1 justice compliancewill be necessary to safeguard the integrity of the mediationprocess.

6. Effective Enforcement

Of significance to parties engaged in the resolution of civilclaims is ensuring that such agreements are enforced. This is rele-vant to the question of court mediation design since in several of

115 MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OFCOLORBLINDNESS (2010) (the deep-rooted institutionalized racial discrimination against AfricanAmericans in the United States can partially explain this relatively low score).

116 WORLD JUST. PROJECT, supra note 69, at 51.117 Id. at 95.118 Id. at 101.119 Id. at 98.120 Id. at 69.121 See Edelman, supra note 50; see also FEELEY, supra note 50; see Albiston, supra note 50;

see GENN, PATHS TO JUSTICE, supra note 50; see GENN, JUDGING CIVIL JUSTICE, supra note 50.122 See FEELEY, supra note 50; see also Albiston, supra note 50.123 WORLD JUST. PROJECT, supra note 69, at 152.124 Id. at 84.125 Id at 117.126 Id. at134.127 Id. at 110.128 Id. at 93.129 Izumi, supra note 49.130 See Edelman, supra note 50; see also FEELEY, supra note 50; see also Albiston, supra note

50; see also GENN, PATHS TO JUSTICE, supra note 50; see also GENN, JUDGING CIVIL JUSTICE,supra note 50.

131 See FEELEY, supra note 50; see also Albiston, supra note 50.


the jurisdictions studied, mediated agreements are enforced similarto court judgements. Alternatively, parties may also sue on the ba-sis of contract in the event that a mediated agreement is not carriedout.

An independent-sample t-test was conducted to compare themean scores for effective enforcement in voluntary and mandatorycourt mediation conditions. The results show voluntary mediationprograms are associated with significantly higher scores for effec-tive enforcement (M=77.5, SD=12.97) than mandatory mediationprograms (M=62.5, SD=20.66, t(6)= 1.50578, p=.081519). Scholarshave suggested that voluntary mediation may result in higher ratesof compliance due to the parties' initial involvement in selectingand initiating mediation; though the final crafting of an agreementremains in the hands of parties in both voluntary and mandatorymediation contexts. According to the independent sample t-test,such difference is not statistically significant. 3 2

TABLE 6 EFFECTIVE ENFORCEMENT (PERCENTILE)

Std. Std. ErrorEnforcement* N Mean Deviation MeanVoluntary 6 77.5 12.97 5.29Mandatory 6 62.5 20.66 8.43* The t-value is 1.50578. The p-value is .081519. The result is not significant at p < .05

Overall, the mandated mediation countries studied reflect alower overall average enforcement rate of 62.5 on a 100-pointscale. In 2016, the score for effective enforcement in the UnitedStates was 66,133 on average with other jurisdictions in the E.U.,EFTA, North America and high-income group countries.1 34 Aus-tralia's score for effective enforcement was 8.135 Japan's score was89,136 while India's was 38.137 Italy's score for effective enforce-ment was 42138 and China's was 58.139

132 The result is significant at p < .10.133 WORLD JUST. PROJECT, supra note 69, at 153.134 HODGES, supra note 90.135 WORLD JUST. PROJECT, supra note 69, at 51.136 Id. at 89.137 Id. at 95.138 Id. at 98.139 Id. at 69.


For countries with voluntary court mediation programs inplace, overall a slightly higher average enforcement score of 77.5on a 100-point scale is reported. According to the Rule of LawIndex 2016, the score for effective enforcement in the United King-dom was 76,140 the average score. The Netherlands scored 88;141Malaysia 57;142, Singapore 93;143 Hong Kong 81;144 and Francescored 70.145

IV. CONCLUSION

This Article suggests that sampled countries implementing vol-untary court mediation programs, or those that lightly nudge par-ties toward self-directed resolution, on average, score statisticallysignificantly higher when measuring overall jurisdictional scores forefficiency and non-discrimination, as compared with more robustcourt directed nudges. Additionally, no significant difference wasfound in relation to the quality of civil justice, effective enforce-ment, accessibility and affordability, and impartiality, and effec-tiveness when comparing voluntary and mandatory mediationsystems. In environments of higher reported discrimination, effec-tive corrective measures, including adequate training and accessi-ble grievance mechanisms to address the possibility for lax civilrights1 4 6 and procedural justice, compliance 4 7 will be necessary.

Given the small sample size (n=12) and lack of policy uniform-ity in some jurisdictions, the results cannot be considered general-izable. Instead this analysis offers insights into the efficacy ofdiverse civil mediation policy approaches. The findings echo socio-legal scholars' examinations in similar contexts: "facilitation andencouragement together with selective and appropriate pressureare . . . possibly more efficient than blanket coercion to medi-ate." 1 48 While aggregate regional mediation program data is in-

140 Id. at 152. WORLD JusT. PRoJEcr, supra note 69, at 152.141 WORLD JUST. PROJECr, supra note 69, at 117.142 Id. at 110.143 Id. at 134.144 Id. at 93.145 Id. at 84.146 See Edelman, supra note 50; see FEELEY, supra note 50; see Albiston, supra note 50; see

GENN, PATHS TO JUSTICE, supra note 50; see GENN, JUDGING CIVIL JUSTICE, supra note 50.147 FEELEY, supra note 50; see also Albiston, supra note 50.148 HAZEL GENN ET AL., TWISTING Aui~ms: COURT REFERRED AND COURT LINKED MEDIA-

TION UNDER JUDICIAL PRESSURE (2007).

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formative, it is important to note the diversity of external,exogenous, and intervening variables, including court financing,cultural factors, political environment, and impact program out-comes. Such aggregate data, while not generalizable, can assist inoutlining directions for future study with the wider socio-politicalobjectives for developing a court system responsive to user needs.Within the limitations mentioned above, this Article generally con-firms insights from nudge theory suggesting that at least for theregions sampled, positive reinforcement encouraging mediation isat least as effective as traditional directions issued through legisla-tion or formal court rules.

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