Experienced mediators know that the resolution of disputes involves the people and the problem as much as the positions. At the same time, most parties will use as a benchmark for settlement decisions the expected results at trial should a dispute not be amicably resolved. In assessing their own positions, most parties overestimate their likelihood of success due to advocacy bias and the many other cognitive illusions which distort objective analysis (as explained here). More specifically, advocates on both/all sides in mediation often make overly confident statements such as “we’re 90% certain a jury will find in our favor” or “we’re certain a jury will find we’re telling the truth.”
What can a skilled mediator do in response to such statements? Of course, each dispute is different and, initially, we need to discern whether such statements are simply posturing or reflect unrealistic assessments. In the latter case, in addition to reality-testing and getting participants in a negotiation to be more objective by recognizing their own advocacy and other biases, I sometimes give parties and their counsel a chart I call “The Road to Resolution in Court” (below). The chart lists the general reasons a jury may get it wrong in any given case.
Over the years, mediation advocates have told me that this chart has been of particular help in their efforts to convince their clients of the risks at trial. I have rarely gotten any pushback as the risks of trial outlined on the chart should be evident to any experienced trial lawyer.
Leaving disputants and their advocates with a chart has an advantage over any oral presentation I could make. While spoken words dissipate once I leave a caucus room, parties invariably read the chart and talk about it once they are left alone. Moreover, studies on learning behavior show that many individuals’ visual learning skills are greater than their auditory learning skills.
WHAT IS DECIDED? “COURT TRUTH”
- Will all critical witnesses testify at court proceeding?
- Do witnesses have any private agendas which may influence testimony?
- What was actually perceived by each witness?
- What testimony will be offered about what happened? Will the testimony be the same as during preparation? Or different?
- What portions of testimony will be admitted in court? What may be excluded by evidentiary rulings?
- How will the testimony of witnesses stand up to cross-examination?
- What facts will be heard/understood by jury?
- What conflicting facts will be offered by others?
- Who does a jury believe when facts are controverted? Will jurors understand the reports of experts?
- How do jurors reconcile conflicting expert reports?
- How do personal/life experiences influence the manner in which jurors internalize facts?
- Are perceptions of facts skewed by selective perception and cognitive illusions?
- How will jurors be influenced by the equities?
- What sympathies may influence a juror’s decisions? (geographic issues, small Pl. v. large Def., substantial losses/injuries,
- presence or absence of other parties to blame, etc.)
- What legal standards will be applied by the judge? Will jurors understand the jury instructions?
- How will jurors apply the law to the facts?
- What happens when jurors disagree with each other about facts? Or how to apply the law to the facts?
- What is the potential for a compromise verdict?
- What is the potential for a decision that is simply wrong?
© 2017 Bennett Picker
Please note that each IAM Blog posting represents the view of its individual author, but not necessarily others associated with IAM. IAM Blog Editor Keith L. Seat may be contacted at email@example.com.