An article in the Maine Sunday Telegram brings up an interesting point about trials. The trend at all levels in civil cases is that fewer and fewer cases are making it to trial and more and more are settling beforehand. Of all the cases filed, depending on jurisdictions, less than 5% make it to a trial. This means that more than 95% of cases settle.
In NJ, roughly 1/3rd of civil cases referred by the court for mediation settle directly in mediation. I would estimate that another 1/3rd settle as a result of what happened in mediation, but does not get reported in those statistics. This is why states have mediation programs.
In mediation, clients are given a lot to think about in a short period of time. Sometimes it takes more than a few hours to assimilate the new information. Most litigants look at their case as “I’m right, they’re wrong”. A good mediator will help them see the gray in their cases (as well as the weaknesses) and properly assess the risks in going to trial. I often ask clients why they think that their case is so unique that they will be among the less than 5% that make it to trial.
The longer a case goes until a settlement, the less likely it will happen. When litigants have to spend money on discovery and depositions, they tend to become more entrenched. That’s why mediation happens early in the process. It gets information exchanged between the parties and risks assessed early.
Trials involve risks. Trials involve biases (by jurors and judges). Trials involve performances (by attorneys and witnesses). A mediated settlement provides surety. You know what you’re going to get. And no one has forced this resolution on you…you’ve voluntarily agreed to it.