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  • Kathy Cochran

Why A Private Trial Beats A Focus Group Every Time

Updated: May 18



I recently participated in an intense focus group, witnessing about 30 people (divided into three juries) consider evidence presented over zoom. The focus groups were meeting via zoom as well. The experience convinced me more than ever that most parties would benefit from choosing mediation or arbitration to decide their cases.


First, focus group members were heavily influenced by a single strong leader, often

dramatically changing their individual opinions to agree with the leader. That process

was not influenced by the merits of the case so much as by the desire to reach an

agreement regardless of the merits of the case. This dynamic basically changed the

course of the discussion as well as the result. Individuals are influenced by one another's behavior in their individual decision-making. Sociologists call this “system dynamics”, causing aggregate behavior and providing a driving force to reach consensus regardless of individual beliefs. It is a well-known social phenomenon. That’s what we expect a jury to do, and we trust this system of justice on a social level.


From the perspective of a lawyer or individual litigant, the jury system can of course be

risky. It is hard to predict let alone control aggregate behavior in decision-making. It may

be safer and surely is more predictable to rely on a single decision-maker known to the

parties to resolve a case. Each party comes to mediation with authorization as to low and high figures. Choosing an arbitrator or mediator gives the parties more control over the outcome. No party or insurer would agree to use a focus group as a binding platform for settlement. But if you think about it, that is what a jury is. It is a focus group, defined by aggregate decision-making with all its unpredictability. While a focus group can provide information and guidance, it is not always a good mechanism for reaching a fair outcome.


And that is what a jury is – a focus group selected after limited voir dire or a preliminary examination of a witness or a juror by a judge or counsel.. The goal of negotiation fails, a fair and more controllable mechanism to resolve a case is arbitration or mediation. Turning to a mediator for help in resolving the case makes sense as a next step. If that fails, the parties still have the power to choose an experienced lawyer to decide the case in a private trial or arbitration. These choices are less expensive for the client and offer some assurance that the vagaries of a jury of unknown citizens can be

avoided.


An experienced arbitrator or mediator will draw upon his or her own experience in the

practice of law. The arbitrator or mediator likely has a background and experience that

is easy to discover - in far more detail than one could learn about a juror. The

arbitrator/mediator likely spent decades practicing law, developing a reputation in the

legal community that is easily discovered. It isn’t possible to get that much information

from a juror during jury selection. Prospective jurors can provide only a snapshot of their views and backgrounds within the few minutes allowed for questioning because there are time constraints imposed by the court. Litigants and their lawyers will likely have encountered the mediator or arbiter in other settings and will likely have observed his or her professional preferences and decision-making in resolving cases. Even if the parties do not know the arbiter or mediator personally, there are usually other lawyers who can provide advice and share observations about a prospective arbiter or mediator.


In the three focus groups I watched last week, unexpected individuals emerged and then drove the discussion. We had information about these individuals ahead of time, but that information did not accurately predict who would become the discussion leader. It would be just as unpredictable who in a jury of twelve might become the discussion leader. Because the parties choose an individual arbiter or mediator, they already have insight into how the case will be decided. It is therefore a safer and more reassuring way to resolve a case. Of course, it is also far less expensive to spend a day in arbitration or mediation than to present witnesses over the course of days or weeks in trial before a jury of strangers. I have had the privilege of presiding over several arbitrations and a couple of private trials.


Having spent 41 years trying jury cases, I hereby attest that the arbitration experience

would be far less scary and unpredictable for lawyers and their clients. I know the lawyers and they know me. There is a comfort zone in that process for all involved. Of course, the rules of evidence will be enforced. But the danger of rank speculation is avoided.


Pacific ADR has been formed to provide mediation, arbitration and other ADR services at the highest professional level and at a reasonable cost to our clientele. We are passionate about what we do and strongly believe that empowering litigants to make reasonable settlement decisions in mediation is almost always better than casting one’s fate to the civil justice system. Contact our offices at 206-825-4414 or info@pacific-adr.com.

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