A. Troy Hunter
MESSAGE TO TRIAL ATTORNEYS: On Both Sides Of Civil Litigation
Updated: May 5, 2021
These are strange times in our respective practices!
As trial attorneys, we have lost some of our footing. We no longer feel in control of our destiny. Trial calendars are subject to endless amendment, emergency orders, and continuations. When and if a trial is going to be conducted is a constant open ended question. If it is going forward, will it be in-person, by Zoom or other video conferencing technology, or a hybrid of the two?
Who benefits from the various vagaries of the platforms available? When trials are no longer a certainty, how does that affect the power dynamic between plaintiff and defense when it comes to settlement negotiations?
The whole litigation scenario has become more uncertain and more stressful than ever before. These uncertainties are played out to a fuller extent in mediation, which has simultaneously become more important than ever before. In states like California, upwards of 95% of cases settle at or shortly after mediation. “Every single case in this entire city … will be sent to mediation to try to resolve it before it goes to trial,” according to Lucie Barron, founder and president of ADR Services Inc in Los Angeles.
In a study of 9,000 settlement decisions made in cases over the last 41 years, the plaintiffs obtained an award that was the same or worse than the result the plaintiff would have achieved by accepting the defendant’s pretrial settlement offer UP TO 61% OF THE TIME !!
Working with a mediator who has experience surmounting the obstacles posed by both plaintiff and defense in the mediation setting, coupled with current experience trying cases with the many complexities imposed by various external influences, such as the COVID-19 pandemic, can improve your chances of taking an uncertain situation and turning it into a successful resolution. The statistics speak for themselves.
Would these facts persuade you to pursue mediation?