Updated: Jul 28
I recently heard that the latest statistics suggest that 96% of all civil cases in Florida eventually result in a settlement. That naturally means that only 4% of all civil cases in Florida actually go to trial. The numbers and results are literally overwhelming with little room for debate. What are some obvious takeaways from that data?
Actively Work Towards Settlement
Logic would appear to dictate that if nearly all cases settle, then lawyers should be working their cases towards settlement. That means more time, thought, and resources should be dedicated to setting up a case for settlement than even trial. If there was a 96% chance that it is going to rain, are you still going to go all out with your plans for a beach day notwithstanding?
Settlement and Trial Preparation Are Not Mutually Exclusive
You can prepare your case for settlement while still preparing for trial. These activities are not mutually exclusive. Trial preparation and getting a case ready for settlement do not need to operate in silos independent of one another. There are elements of trial preparation that are crucial but also support efforts for settlement and they can be done at the same time.
Preparing a case for both settlement and trial is not complicated. In both instances, you simply need to map out the desired outcome for each. With the specific outcome as a goal, you then make plans for each step to get you to that goal.
For example, in a trial, the goal would be a verdict for your client. Depending on the case, using the elements of proof from jury instructions will tell you what you need to prevail in your case. From there, you need to make a plan for what is needed in terms of testimony and evidence for each element of proof.
Similarly, for a settlement, the goal would be a resolution for a certain dollar amount or outcome that your client can live with. Then your objective is to convince the other side how that outcome is preferable to the unknown outcome that could take place at trial. This means challenging liability or defenses, as well as the amount of damages. The final secret sauce is to convince your client as well as the other side that control over a known outcome (the settlement) is preferable to limited control over an unknown outcome.
Timing is Everything
Obtaining and sharing needed information to evaluate risk must be completed prior to mediation. Again, this needed information is already something that you will be working on during trial preparation. Examples include: (1) the presentation of the parties, witnesses, and experts so their character, credibility, and opinions can be assessed; (2) the sharing of critical evidence that can determine the outcome of liability or assessment of damages; and (3) the resolution of any dispositive motions or evidentiary rulings that could impact trial. All of the foregoing is handled through the completion of discovery including all material depositions and obtaining orders on critical motions. In other words, all the cards are now on the table.
The timing of mediation should coincide with having all the cards on the table. Mediation is premised on the parties being able to objectively make good business decisions. Good business decisions can only be made when information is available. Parties are hesitant to change a position based on the unknown and rarely are good decisions made without having objective information.
Too often mediations are hampered by the fact that critical depositions have not yet been taken, discovery is not yet complete, experts have not rendered opinions, or critical motions are still pending before the Court. The common denominator is the unknown. And it is precisely the unknown that is preventing a party from making a full evaluation so a rational settlement decision can be made.
Prepare Parties For Success
Finally, the human element cannot be ignored. Human beings are emotional creatures and misplaced emotions can be a barrier to settlement. Emotions in the end are a defensive mechanism, which is often a sign that something is not right. I am not referring to mental illness, rather emotions often signal a lack of not being heard, a lack of trust, or frustration for not having all the information to make a decision.
When emotions arise, you must ask yourself what is causing them and what can be done to satisfy their need. This takes some reverse engineering but in most cases, all that is needed is information. Preparing the parties so they can objectively evaluate a case without emotions while also listening to the other side nonjudgmentally to gather more information is the recipe for success.
How does a lawyer prepare the parties for mediation in this context? You need to keep the parties focused on the goals for mediation, facts and nothing but the facts, and the information they need to make a good risk analysis. When a party falls off the rails, and that will happen, you need to be prepared to ask them how their actions or responses assist with achieving their goals for mediation.
When parties on both sides are working objectively and without emotions, they are more prone to share information, collaborate, engage in problem-solving, and make better decisions. All of this builds rapport and trust. With rapport and trust, the parties can make well-informed objective business decisions at mediation and that is precisely how settlements arise.
Since the overwhelming majority of cases are going to settle, lawyers should proactively prepare a case for settlement sooner rather than later. Prioritizing settlement along with trial preparation is an efficient use of a lawyer's time and can ultimately reduce costs while enhancing client satisfaction.
Preparing a case for settlement and trial are not mutually exclusive activities. Mapping out your goals for settlement and trial will often benefit each other. For mediation and settlement purposes, timing is everything. Reducing the unknown by sharing critical information will allow the parties to make informed business decisions which enhances the chances of resolution.
Preparing the parties for settlement requires keeping them honest as to their goals for resolution and providing the space where facts prevail over emotions. When the parties are operating without emotion and share information, rapport and trust are built which leads to collaboration and joint problem-solving. This is precisely how you can set up your case for settlement success.
Less conflict. More resolution.
Miami Florida Mediator