Neutral Corner: Trials may be vanishing but not the need for mediation

The phenomenon known as the “vanishing trial” has been a topic of serious discussion, and in some quarters, serious concern, since statistics showing a marked decline in the number of criminal and civil trials were first reported in 2004. Commissioned by the ABA’s Section of Litigation, a Wisconsin Law School professor published an extensive report examining trial statistics in state and federal courts from1962 to 2002. See, Marc Galanter, “The Vanishing Trial” 1 J. Empirical Legal Studies 459 (Nov. 2004).

The study found, despite the fact that the number of civil filings significantly increased during that 40-year period, the absolute number of jury trials dropped from 5,802 in 1962 to 3,951 in 2004. In 1962, 11.5 percent of federal civil cases were disposed of by trial; By 2002, that percentage had decreased to 1.8 percent. Even though state courts have higher rates of trial than federal courts, the empirical data also show steep declines in states, with one study showing that the number of tort cases tried in state courts declined by 33 percent from 1996 to 2005.

Although trial lawyers and judges have been viscerally aware of the drop in the number of trials for many years, the general public has only more recently noticed the decline. A New York Times headline on Aug. 7, 2016, for example, read “Trial by Jury, a Hallowed American Right, is Vanishing.” Likewise, recent articles in Kentucky and Indiana have reported that since 2002, the number of trials have continued to drop in those two states. In October 2016, a story posted on WORB.com reported worries among Kentucky judges and lawyers about the fact that the number of civil jury trials in the Commonwealth fell by 60 percent from 2005 to 2015. Similarly, The Times of Northwest Indiana on Jan. 1, 2017, published, “Few Indiana court cases resolved by jury trial,” an interview with Chief Justice Loretta Rush in which she noted that there were 1,160 jury trials in Indiana in 2015, down by over 50 percent from 2005.

Impact of the vanishing trial on mediation

Many commentators and ADR professionals have voiced concerns about the potential adverse impact this steep decline in the frequency of jury trials could have on the practice and process of mediation. Observers have written, for example, that without a trial as an ultimate likely “alternative,” mediation could lose its core purpose or function. Others have worried that with the scarcity of trials and — therefore, judicial precedents — mediators will no longer have a key tool needed for risk analysis. Still, others believe that if the decline in the number of trials continues, the number of court-annexed or court-connected mediations could decline proportionally.

While the decrease in jury trials could well have significant implications for the civil justice system generally, it is submitted that the adverse consequences or negative impacts of the phenomenon on mediation are perhaps overstated and ignore certain realities. First, human nature tells that there will always be disputes. Further, even the most pessimistic observers of the decline in the number of trials agree the general civil court system and court procedures will continue basically as is. Mediation is an established process and disputes are likely to continue to be mediated, whether pre-suit or after suit is filed. The fact that a dispute in litigation is unlikely to be resolved by jury trial is simply one more variable in the risk analysis component and evaluative function of the mediation process.

Mediation has always had at its core the concept of BATNA, the best alternative to a negotiated agreement. The mediation process produces, exposes or identifies the current settlement options for the disputants. Once those settlement options are identified, the parties can weigh or evaluate those options against the potential alternatives. A decision tree could include disposition by trial, by appeal, by dispositive motion or by a later “courthouse steps” settlement. Sometimes, the parties have the option to simply “live with” the dispute. In facilitating the comparison of the available settlement options to the potential alternatives, experienced mediators have always encouraged the parties to factor in the reality that it is statistically unlikely the dispute will ultimately be resolved by trial. The risk analysis component of the mediation process will encourage comparison of the settlement option to all the various ultimate endpoints.

If the trial date is not yet set and may be a year or two off, how likely is it that there will be a settlement “on the courthouse steps?” Is the settlement option that could be available at that time likely to be better or worse than the instant option? What are the odds of a summary disposition? Could commercial and business realities change in the future and affect the outcome of the dispute? Could the future financial stability of one or more of the parties affect the course of the dispute? A well-conducted mediation process attempts to include all variables in the risk analysis.

Disputes are not going to “vanish” even if the number of trials as their ultimate means of resolution continues to decline. It is submitted that mediation is now an established and known effective resolution process, and the percentage of disputes ending up in trial is but another limb on a potentially crowded and full decision tree.•

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John R. Van Winkle, of Van Winkle Baten Dispute Resolution, is a former chair of the American Bar Association’s Section of Dispute Resolution and author of West’s Indiana Rules of Dispute Resolution Annotated. The opinions expressed are those of the author.