July 13, 2009

Bring the Jury Into Your Mediation

by: Dr. Ken Broda-Bahm

The whole point of having a mediation is to avoid the time, the expense, and – some feel – the uncertainty of a jury.  So, literally speaking, there is no jury in your mediation.  But the ‘figurative’ jury may yet have a role to play in making your mediation more successful.


Mediation has become enormously popular these days, particularly in business disputes.  Yet even when voluntary, it often fails:  as often as half the time, according to some recent data.  Why does mediation fail?  An obvious explanation is that both parties enter the negotiations with overconfidence and an attitude that is adversarial rather than conciliatory.  A very thorough review of the literature recently appeared in the Ohio State Journal of Dispute Resolution (“Psychological Impediments to Mediation Success:  Theory and Practice,” 2006 21:281, abstract available here).  The research suggests that in addition to being undone by simple over-confidence, mediations are also thwarted because parties, as advocates, are much more facile at identifying the strengths rather than the weaknesses of their position.  That is, even very smart, sensitive, thoughtful, and open-minded attorneys (yes, I mean you) will have a blind spot for the bad, and will exaggerate the good.

So how does a jury, or the idea of a jury, help uncover that blind spot?  In two ways.

First, figuratively.  Even though real living juries resolve cases less than 3% of the time [Bureau of Justice Statistics Bulletin “Civil Bench and Jury Trials in State Courts, 2005”], perceptions of what a typical jury might do serve as an important backdrop much more often.  That is where the leverage, or lack of leverage, lies.  If a wealthy brokerage house is asserting a non-compete clause against a now fired and penniless former employee, then the company has to know that, should negotiation fail, it would face a fairly skeptical panel of jurors.  It helps to know more than just your own rosy estimations of the case.  Conduct a mock trial even when a case is more likely to be settled in negotiations.  That way, you will have a better grasp of your leverage, and a clearer and more honest view of your strengths and weaknesses, which the mediator will certainly appreciate. 

But second, there is a more literal role that a jury could play in mediation.  If you’ve conducted a well-run mock trial (that is, if you’ve randomly-recruited, kept recruits blind to the research sponsor, used multiple juries, and faithfully represented the opposing party’s case) then you may want to share the results of that research as part of your confidential statement and presentation to your mediator.  That allows you to credibly admit to some weaknesses, but also to forcefully argue to your mediator that, “when I say that I feel we have a strong enough case to take to a jury, it isn’t just me talking.”  When you bring the jury to the mediator in that manner, the research remains confidential work product, but can still play an important role in both grounding your expectations and persuading your mediator.

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