Mediation Settlement Rates:
The Importance of Comparing Apples with Apples

By John C. Schafer
Deputy Commissioner in Charge of Mediation
N.C. Industrial Commission

Although the settlement of cases is not the only important goal of the mediation process, statistics on settlement rates are maintained with regard to almost every mediation program throughout the country. However, since there are many ways to calculate settlement rates, comparisons of settlement rates in different programs will only be meaningful to the extent that the criteria for calculating such rates are the same in the programs being compared. For example, in the N. C. Industrial Commission program a case is considered "settled" only if all disputed issues are resolved and there is no longer any need for a hearing in the case. In other programs, a partial settlement or an agreement to submit all pending claims to binding arbitration is considered a settlement for purposes of mediation settlement statistics.

The treatment of settlements that occur outside of mediation conferences also varies throughout the country. For purposes of the Industrial Commission program, I have always maintained three different settlement rates – the number and percentage of cases that settle (a) at mediation conferences, (b) prior to scheduled mediation conferences, and (c) either at or before scheduled mediation conferences.

Although there has been a great deal of anecdotal evidence to the effect that many cases are being resolved after mediation conferences, in large part as a result of the progress made at the conferences, the Industrial Commission and Superior Court programs have not previously maintained statistics concerning the rates of settlement that occur after mediation conferences. However, mediation programs in other states have for many years included settlements that occur after mediation conferences in the settlement rates that are published for those programs.

For example, in Texas and Wisconsin the workers’ compensation mediation programs both include post-mediation conference settlements in their published settlement rates. In Texas any workers’ compensation case that is mediated and does not thereafter require a hearing is considered a "settlement" for purposes of that program’s published settlement rates, regardless of whether the case was resolved at or after the conference, and regardless of whether the matter was resolved before or after notice of a hearing had been mailed to the parties. It is not clear whether or not the Texas settlement rates include cases that are resolved prior to scheduled mediation conferences. In any event, for comparison purposes I have assumed that settlements that occur prior to mediation conferences are not included in the Texas settlement rates.

In contrast, Wisconsin’s settlement rates include all cases that are resolved prior to or at scheduled mediation conferences, as well as all cases that are resolved after mediation conferences, but before notices of hearing are mailed to the parties. The theory behind excluding cases that are resolved after the mailing of hearing notices is that the mailing of hearing notices in such cases may actually be the expediting event that leads to the resolution of those cases and, therefore, "credit" for these settlements should not be allocated to the mediation conferences in such cases. Neither Texas nor Wisconsin have published a breakdown of their settlement rates which would show the proportion of their cases that are resolved before, during or after mediation conferences, and Texas’ published settlement rates also do not provide a breakdown of those cases that are resolved before or after the mailing of hearing notices.

Beginning in July of 1999 the N. C. Dispute Resolution Commission will begin collecting data concerning the cases that reach an impasse but are then resolved without judicial intervention within 45 days after the completion of Superior Court mediation conferences. Since the Industrial Commission already had similar data available, I have calculated the settlement rates for those cases that are resolved without judicial intervention (a) after mediation conferences but before the mailing of hearing notices, and (b) after mediation conferences and the mailing of hearing notices but before a hearing was held. For purposes of these settlement rates, "judicial intervention" was defined as the convening of a hearing or the entry of an order dismissing a case. Since Industrial Commission hearings are usually convened within 60 to 90 days after an impasse is declared in a mediation conference, and hearing notices are generally mailed to the parties four weeks prior to a scheduled hearing, settlements in Industrial Commission cases that occur after mediation but before the mailing of hearing notices generally occur within 45 days after the completion of the mediation conference.

The most recent statistics concerning the Industrial Commission program confirm that a large number of cases are being resolved after the completion of mediation conferences. The statistics also show that no matter how "settlement" rates are defined, the settlement rates in the Industrial Commission program continue to be outstanding. With regard to the Industrial Commission cases that reach an impasse at mediation, 17.31% are then resolved prior to the mailing of a notice of hearing, and another 45% of the cases are resolved after the mailing of a notice of hearing but before the hearing is held. Thus, only 37.69% of the cases that reach an impasse at mediation require judicial intervention in the form of a dismissal order or a hearing before a Deputy Commissioner.

Regardless of what criteria may be used for purposes of defining a program’s settlement rate, the Industrial Commission’s settlement rates compare very favorably with the workers’ compensation mediation programs in other jurisdictions, including Wisconsin and Texas. Wisconsin actually has two different types of settlement conferences, one for cases involving pro se claimants, and another for cases involving claimants represented by an attorney. The program involving pro se claimants has been in effect for nine years, while the program involving claimants represented by an attorney has been in effect for just over one year. Not surprisingly, the current settlement rate is somewhat higher in those cases where the claimant is represented by an attorney – 56% compared with 44% in cases involving pro se claimants. The Industrial Commission does not keep separate statistics for cases depending on whether the claimant is or is not represented by an attorney. However, when the Industrial Commission settlement rate is calculated in the same manner as the Wisconsin settlement rates, the Industrial Commission settlement rate is 82.56%. The current settlement rate for the Texas workers’ compensation mediation program, which has been in effect for eight years, is 66.73%. When the Industrial Commission’s settlement rate is calculated in the same manner, the settlement rate in our program increases to 89.40%.

Thus, the Industrial Commission’s mediation settlement rates are significantly higher than the mediation settlement rates achieved in both the Wisconsin and Texas workers’ compensation mediation programs. As mentioned above, it is also important to note that the criteria used in calculating settlement rates can obviously have a very substantial impact on those rates.

Editor’s note: John Schafer is the dispute resolution coordinator for the N.C. Industrial Commission. He can be reached by e-mail at or by telephone at (919) 715-2791.

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