Is Mediation the New Jury Trial?

Scott J. Silverman, Retired Judge 11th Judicial Circuit, is a JAMS panelist based in our newly opened Miami, Fla. Resolution Center. He served for nearly 22 years on the bench and distinguished himself as a stellar judge and one of South Florida’s highest rated circuit court judges.

Mediation is no longer a rarity in our court system – it’s quickly becoming the most common means of resolving a dispute. In fact, one might argue that “going to mediation” has replaced “taking it to a jury” when parties are faced with an unresolved conflict.

The statistics speak for themselves. In Florida, for example, juries heard one percent of all cases in 2000-01. Only 10 years later, the rate plunged to .20 percent, which is one-fifth of a percent of all cases that went to jury.

What does this mean? For one thing, lawyers who have trained to present their cases before a jury are now well advised to add mediation preparation to their roster of skills. It only makes practical sense.

Some litigators may resist the need to round out their experience, or put everything into a mediation on behalf of their clients. It works against accepted litigation strategy to lay all the cards out at mediation, for example. Many will feel it is better to keep an ace up their sleeve and a trump card in their pocket should the case reach an impasse. But it is usually better to let the opposing side know all of your strengths. Besides, the holder of the so-called ace or trump card often times places more value on it than it is actually worth. If the information is so damaging to the opposing party, and statistics show that there is a more than 99 percent chance the case is going to settle, isn’t it best to make your best and most complete presentation?

For the pragmatic litigator, a working knowledge of the Rules of Evidence is crucial. These days, however, it is arguably even more important to have a better understanding of the Rules of Civil Procedure and negotiating tactics. Cases are more often won and lost in the caucus room than in the jury room. Therefore, prepare your case as if you are going to trial, but mediate as if you are in trial. It’s reality.