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What is the Difference Between Mediation and Trial

Whenever a plaintiff brings an action against a defendant the parties can try to resolve their differences before ever going into court. If the negotiations break down the plaintiff will sue the defendant. The end result of filing a lawsuit is a trial.

A trial is what you see on TV.  When parties go to a courtroom and pick a jury to hear the facts of the case. The jury will hear all the facts and make a decision. They will say who is right and who is wrong. Juries determine whether the damages are related to the lawsuit, and how much those damages are worth.

We want to believe juries are the “reasonable man’s opinion” and the group of jurors can judge the facts and find the truth.  But it is not always the case.  That is because every jury is different and will come out with a different result for every case, even the same case.

My firm has a mock trial courtroom. We are one of the few full-sized realistic-looking courtrooms in the state. We enjoy doing mock trials there on our cases. There are cases that we have tried with 12 Mock jurors sitting in our practice courtroom. After we present all the evidence we will separate the 12 jurors into two separate rooms.  Six jurors in one room and a random sample of 6 jurors in another room. In our mock trials all the jurors hear the same facts, listen to the same witnesses, and see the same diagrams.  We want it to be the same so there is nothing different – other than the six people in each room.

We have learned that the people in the room will make or break your case. The evidence is not different.  Only the people change.  We have had jurors in one room give us a large verdict – and in the other room give us a very small version – sometimes even a zero verdict!  That seems impossible but jurors consistently come out with wildly varied conclusions.

To give the parties the opportunity to avoid this unknown outcome most Florida trial judges will require the parties to mediate their claims.

Mediation is a process that must happen before trial. It is where the lawyers for each side pick one person to act as a mediator. That person is usually a professional working for a professional mediation company.  Most mediators are lawyers, but sometimes CPAs will also act as mediators. In family law cases, some therapists also acts as mediators. But in my practice, we only deal with the best trial lawyers who have retired or quit their practice and now mediate full-time.

The mediator has no power in the case. The mediator is typically one of the most experienced people you can find in whatever type of lawsuit in which you are involved.  You need an experienced mediator because the mediator will be your sounding board. The mediator will listen to both sides present their facts and will be able to analyze the strengths and weaknesses of each case.  Both sides will get an opportunity to look the other party in the eye and explain why they are right. Then, the mediator will separate the parties into separate rooms and the mediator will go back-and-forth between two rooms trying to get the parties to come up with a middle ground to settle the case.

That usually involves coming to an end result, a final number, that both parties can live with. Neither party is typically happy but it’s enough.

There are no formal rules to mediation except that it is 100% confidential. Nothing that anyone says or does in mediation can be used against them at any time in the future. If one party offers $100,000 and the other party doesn’t accept it – then a jury decides to give that plaintiff less, which is too bad for the plaintiff. No one can go back and say “Hey!, You gave me $100,000 at mediation you should give that to me now.”  Likewise – you can’t tell the judge anything about mediation. You can’t tell the jury that you even mediated. This is a confidential and one-time-only attempt to resolve the case.

The great thing about mediation is that you learn with the other side is thinking. You get a feel for what they believe about their side of the case. Sometimes they blindside you at mediation with a great argument on why your case isn’t as good as you might think. Other times you become confident that your side is right because the Defendant is blind to the terrible thing they have done and how much money it is really worth.

The best thing about mediation is that it puts the power back in the hands of the parties. It allows them to think rationally and get the Mediator’s voice of a reason before a jury finds the “middle ground” and gets the case settled.

Keep this in mind: In our office, many cases settle before we even file a lawsuit. For the few that actually go into a lawsuit status most of them get settled at or before mediation. Only a few cases actually go to trial. That is because the risks of a trial by jury often outweighed the benefits of taking a reasonable offer at mediation.

At LaBovick we have mediated thousands of cases. While we enjoy going to trial, we recognize that most clients want to get a fair and reasonable number for their case. Our methods and systems give our clients the best opportunities to get the maximum payout possible at every juncture, including mediation. We don’t leave early and we don’t walk away when money is on the table. We want our clients to have every opportunity to get a large and fair settlement. That great outcome can happen many times at mediation – and we support that conclusion. But we also know that we will be ready the be your strength and your sword if the defendants do not give you a fair and reasonable settlement offer at mediation.

If you’ve been injured in any type of case please call LaBovick LaBovick & Diaz.  We have offices throughout Palm Beach County on the treasure coast. The consultation is free and there are no fees or costs until we get money for you!

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