Why So Many Mediations Fail & How You Can Up Your Success Rate
By: Bob Gerchen
- Services Provided: Jury Consulting
By: Bob Gerchen
Over the last two decades, I’ve attended plenty of mediations with clients to help them prepare and present their mediation presentation. But from what I’ve seen, there’s not much actual mediation going on. Instead, it usually goes something like this:
Data shows that about half of mediations—including voluntary mediations—fail to resolve the underlying case. Why is that? Ultimately, it comes down to one central issue: unrealistic evaluations of the strengths and weaknesses of the case and, therefore, unrealistic expectations on the part of one or both parties.
A plaintiff thinks his case is worth millions; it’s not. A CEO thinks his company is untouchable; it’s not. How do we disabuse clients (and sometimes opposing counsel) of their illusory impressions of their own case and move more mediations forward to quicker resolution?
One answer: Let the parties find out what a jury actually would do.
For years, more often than not, we would receive calls from clients whose mediation had failed and whose case looked likely to proceed to trial, and who therefore wanted to proceed with jury research (mock trials, deliberation groups, focus groups). Certainly, jury research has many benefits when a case is moving to trial: you can test and refine themes, learn how jurors react to key witnesses and evidence, and even gauge juror response to damages theory. But, our clients were missing an opportunity to bring the results of jury research to bear earlier in the litigation process.
Over time, clients began to request (and we began to recommend) that jury research take place earlier in the life of a case, i.e., before mediation. The feedback they received from mock trials and deliberation groups proved useful during mediation:
Yet, there is another use for jury research and its application to the mediation process that has started to take hold around the country recently.
This model involves conducting a mock trial or deliberation group during the mediation. Yes, with both sides present, with the mediator present—right in front of everybody. The idea here is that having both sides listen and watch what jurors have to say will ease the mediation process and speed resolution.
What if the plaintiff who believes his case is worth millions hears jurors say the accident was at least half his fault? What if the CEO who believes his company is untouchable hears jurors say that he was out of touch with his own workforce and that he’s still responsible for the mistakes made by an employee four levels down the org chart? Would the tone of the mediation change?
Conducting mediation-affiliated jury research is a six-step process:
At this point, the sides can continue with the mediation on the spot, or they can adjourn to digest what they’ve learned and return to the process the next day.
The key benefits of a joint jury research/mediation are:
Mediation-affiliated jury research is not for every case, nor is it for every client. There are key elements that need to be present in order for such an exercise to make sense:
While it’s not a panacea, the new model of combining jury research with mediation is certainly another viable tool in your box. Under the right circumstances, it can help you creatively resolve cases in an era of disappearing jury trials and ineffective mediations.
Your goal is to provide high-caliber advocacy for your client—IMS helps you achieve that goal.