We used to try a lot of cases “back in the day”, but for about the last 15 years or so, the courts in Kentucky have been encouraging, and often ordering, cases to mediation. That means that once a case has been filed in court, there are only two ways it’s going to end: Either by a verdict in a courtroom or by a negotiated settlement. I’ve been a trial lawyer for 25 years and a mediator since 1996. Mediation is an informal way of resolving cases without the uncertainty of a jury verdict and it does work. In my experience, about 90% of cases get resolved this way. In the final result, a court dealing with an injury case can only decide that money does…or does not…change hands. The judge and/or jury cannot make the accident not have happened or the injury less severe. At mediation the injured party will not receive what they could possibly get on their best day in court, but they won’t get what the worst day in court can bring, which is nothing. Anyone who has tried a lot of cases to a jury, and I have, knows that juries sometimes don’t do what you want or expect them to do. With mediation, the client is in control of what happens and has the option to accept an amount certain, with no risk of loss, or to take the chance of a better result at trial. (For my thoughts on how to value a case, see previous entries in this blog.)
At mediation, the mediator (almost always another lawyer, not connected with the case) will listen to both sides present their respective evidence in summary form, then will divide the parties up into separate rooms for private discussions. In those private sessions, the mediator will probe each party’s case, pointing out the strengths and weaknesses of both sides in an attempt to move the participants toward a resolution. In most situations, “one side’s gotta come up, the other’s gotta come down”. It’s not about meeting in the middle, but about controlling the risk for each side that a worse result might happen if someone else, i.e. the judge or the jury, gets to make the decision instead of the parties actually involved in the dispute. When you leave the mediation with a signed agreement, there is no risk. You’ve made the decision, you know what’s going to happen and it’s over. For most cases in these modern times, it’s the better option.