Every day, shiny new cases arrive in court, ready to be resolved, only to gather dust during discovery and languish for years as the courts’ overstuffed dockets bring everything to a rush-hour stand-still. Then, at some point in this drama, the court schedules a judicial conference to discuss ways of settling this 100-years war, a meeting commonly referred to as judicial case evaluation.
As they say, timing is everything, and unfortunately for all of the players in this litigation, the timing of this method couldn’t be worse.
This traditional approach to conflict resolution has a success rate of only twenty percent. Seventy percent of the cases would eventually be settled on the eve or after the commencement of trial. The remaining ten percent went to trial.
Recent and compelling evidence indicates that modifying this approach will dramatically improve these results. Rather than use a judicial conference as a last ditch effort to avoid trial, courts require the parties to try to resolve their cases through mediation in the early stages of litigation.
First, the parties must agree on a neutral expert or experts to review the case and make recommendations to a mediator. After discussing the case with the parties and reviewing the expert’s report, the mediator provides confidential settlement recommendations to the parties.
The results were astonishing: depending upon the jurisdiction, case resolution increased to between fifty and seventy percent.
Michigan’s 13th Circuit Court, Grand Traverse County, several years ago stopped automatically scheduling case evaluation in every case. Using a cost-benefit analysis, they concluded that the low success rate did not justify the human and financial cost. They virtually abandoned case evaluation in favor of early intervention mediation. And they haven’t looked back.
This shouldn’t surprise anyone. We have all seen plaintiffs and defendants become more entrenched in their position over time. After all, they’ve already waited for several years; why not hold out just a little longer? The incentive to settle diminishes with each passing day. Not to mention that the longer one waits, the more convinced one becomes of the righteousness of the cause. It’s not until the moment of truth comes along – the specter of an actual trial – that the parties start to second guess their chances and become more prepared to compromise.
By attacking the major issues earlier in the process, and by utilizing the assessment of neutral experts, the parties are confronted early on with just how strong their hand really is, and the potentially disastrous and time consuming process of bluffing and bluster become far less appealing. The expert witnesses and the mediator act as a quasi-crystal ball, opening the parties’ eyes to the most likely future. With this knowledge comes wisdom – the wisdom of moving on in life, getting appropriately rewarded, and for attorneys and experts, the wonderful promise of more potential cases to handle. It truly is a “win-win.”
If the state or county in which you practice still uses the demonstrably inferior method of last-ditch case evaluation, you owe it to your client, to yourself and to the integrity and efficiency of the legal system to discuss with your bar association, legislature or chief judge, the logic of switching over to the far more productive method of early intervention mediation.
To buttress your argument with expert data analysis, I highly recommend an article from The Journal of Insurance and Indemnity Law, Volume 6, Number 1, January 2013, pp. 6 – 8: “Business Courts and ADR: SCAO Research Supports Early ADR Interventions,” by Doug Van Epps, Director, Office of Dispute Resolution, State Court Administrative Office, Michigan Supreme Court.
Early intervention mediation will improve client satisfaction, accelerate case resolution, reduce court calendars, improve the bottom line for both attorneys and experts, and lead to the increased utilization of expert witnesses to provide an open and honest scientific analysis.
By: Ian Heller, Attorney at Law