By Dr. Ken Broda-Bahm:
Mediation is often guided by predictions made by each side, as well as by the mediator: if this case went to trial and faced a jury, what would that jury likely do with it? Naturally, each of these three actors will have a belief about that, and those beliefs may be well-grounded by past experience and sober case assessment. Still, those perceptions are often wildly out of sync with each other. When there is a case that should be resolved, but isn’t resolved, or at least not resolved for a long period of time — and that is pretty often — I think the reason for the lack of agreement is that the two sides, and potentially the neutral mediator as well, lack a credible and common reference point for possible results from a jury.
Last month, Persuasion Strategies ran a mock trial involving both sides of the case. This was a dramatic departure from the common mock trial that is sponsored by one side only, with opposition arguments being mocked up by a cooperating attorney with your side. In this case, in a customized process we call “Research-Aided Alternate Dispute Resolution” (Or RA-ADR, pronounced “radar”) both sides of a police excessive force case — the city, and the injured individual — came together with us to plan and to execute a mock trial where each side presented, and each side watched the deliberations and closing interviews of three representative panels of mock jurors. While it remains to be seen whether the project will help the parties come to a resolution, what is clear is that each side emerged from the exercise able to confirm some aspects of their prior case assessments while also learning something new about the case that they had not anticipated. Both sides left with a more reliable reference point on the strengths, weaknesses, and potential results from a jury. While we are likely to explore this experience in more than one post, for this first look, we are going to share a few lessons learned on the benefits, possibilities, and wisdom of a two-sided mock trial.
What Are the Benefits?
When a resolvable case resists resolution, it is often because one party or the other, or their clients, or both, are having a difficult time getting a handle on a likely result. A mock trial won’t involve the same scope of evidence, and can’t replicate every one of a judge’s rulings. But a mock trial will provide the basic step of showing your jurors responding to the overarching outline of the story in your case. And if you can take the time to dig into some of the details of each side’s proposed damages, as we did, you will get a response to that as well. Predictably, there was some discomfort from both sides as they watched the jurors reach their verdicts (the sides watched from separate closed-circuit viewing rooms). But we believe both sides left the project feeling like they had a better handle of what they faced in getting the case to a jury, and what it could take to resolve the case.
Is It Possible?
Before and during the mock trial planning, this is where the biggest questions loomed for us: would the two sides be willing and able to temporarily step out of their roles as adversaries and advocates in order to agree upon and plan a reasonable and representative test that would benefit both sides? We are happy to say that in this case, they were. Both sides showed a commitment to the end result and a willingness to compromise along the way, and their common interest in a project was stronger than their disagreements. As we predicted, there were disputes on nearly everything: What is the statement of the case? Should the parties share their outlines in advance? What incident video should we show jurors? What issues are in and which are out? Where can we use testimony? What instructions should we read? How should the verdict form be phrased? At the start, we developed a road map for how to handle all of these questions, and without lapsing into a “judge” role, the facilitating consultants — my colleagues and I — played a serious and substantive role in recommending solutions at each step. I don’t believe this would work in all cases, maybe not even in most cases. But in this case — where both sides shared a common motivation to have a better frame of reference for resolving the case — we are happy to say it worked.
Is It Wise?
The ultimate question for litigants to ask for themselves is whether it makes sense to consider a process like this. There are a lot of ways research can be customized. It could center on a single issue or witness if that’s where the controversy lies. It could focus in much greater detail on damages. It could be extended over several days in order to capture all the angles of a more complex case. It could even involve a mediator playing the judge’s role before and during the trial. But the question is whether that is wise. Some might fear that “putting their cards on the table” in front of the other side will spoil some kind of “surprise” planned for trial. Others might chaff at the idea of working cooperatively with the other side in the case. Some might simply have doubts that a mock trial could ever fully represent all of the uncertainties and unknowns of trial. While there may be merit in some of these concerns for some cases, I do think that broadly, the reasons for caution are exaggerated. You probably don’t have a secret weapon the other side hasn’t thought of. You probably can work reasonably with the other side, and in any case, it’s good for you to try. And, no, the mock trial won’t be the real trial, but it could provide a far better basis for case assessment than you have now.
While Persuasion Strategies has pitched and planned two-sided mock trials before, this experience last month was the first time we were able to fully execute a mock trial involving both sides. The results, we feel, speak to the possibilities for this method to a new tool in helping litigants resolve cases earlier, with less time, expense, and uncertainty.
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Other Posts on Mock Trials:
- Trust Your Mock Trial (to a Point)
- Appreciate the Advantages of Online Mock Trials
- Share the Stakes in Your Mock Trial
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