Surprising Facts and Figures About Litigation - Where and How Are Most Cases Settled?

By Thomas F Meyer

Someone is injured in an automobile accident. Someone slips and falls as a result of the negligence of another. Someone files for divorce. These are just a few situations that often lead to litigation. More than 19 million new civil lawsuits are filed every year in the United States. The largest category of cases filed tend to involve claims and disputes over contracts.

Many people don't realize how long it takes or how much it costs to complete a lawsuit. It takes an average of 25 months to complete a civil trial in the United States. Most people can't afford to wait that long and dismiss their suits before anything is decided in court. Research shows that courts usually only act as a "middle man" to settle disputes. Less than 1% of all lawsuits end with a trial. More than half of the parties who file civil lawsuits in the US later decide to voluntarily dismiss their suits rather than continuing to invest the additional time and money required to go to trial. Why? because during the course of pursuing their lawsuit, the parties usually find a more effective way to resolve their disputes out of court.

Many courts across the United States today are requiring litigants to first conduct an out of court mediation before even allowing any case to get to trial. Choosing the right mediator to conduct these mediations is very important. What should you look for when choosing a mediator? To start with, select an individual with specific mediation training. Many states now have laws regulating mediators. For example, in Florida, only certain individuals meeting specific educational, training and mentoring requirements can be certified by the Florida Supreme Court to mediate. Unfortunately, the search for a good mediator doesn't end there. In Florida, there are almost 6,300 individuals certified by the Supreme Court to mediate. They are not all alike. There are many different styles of mediating. Some mediators may be willing to take a very active role in the negotiation process and may use a number of tools and techniques developed specifically to promote fact-finding, creativity, and compromise while preserving and promoting each parties right of self-determination. Others may take a more passive role.

A good mediator must be very good at asking questions and getting answers. Why? because the true underlying interests and motivations of people are usually not readily apparent. What people say is not always what they mean. It's up to the mediator to draw out the most important issues and "get to the bottom" of every dispute. It is important to ask enough questions before you try to formulate the right solution. This is called the 5 Whys Principal. This principle states that only after you the question "Why?" five times, will you likely get to the root cause of a problem.

A good mediator recognizes that people are usually not inclined to negotiate or make concessions in a mediation unless they are provided with a good reason to do so. If they don't have a good reason to negotiate an impasse will likely occur. It is up to the mediator to try to provide each party with one or more such good reasons throughout the course of a mediation conference. Mediators can accomplish this if they follow a dual track mediation strategy. Track 1 - mediators need to uncover, understand and communicate to each side, a reasonable amount of facts to support each of the other party's claims and defenses. Track 2 - mediators must help each of the parties understand and quantify the risk and uncertainty of their desired outcomes. The mediator's challenge in this dual track strategy is to always try to determine and balance how much of each track is required by each party to keep everyone's interest to remain at the negotiation table.

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