Mediation Tip: The Bird in the Hand-better or worse?

Parties in mediations often think that they will do better going to trial than taking the settlement on the table, or finishing the process to discover the best outcome of the day. A mediator's response to that hard line position, is that there is no guaranty in going to trial, and that risks will follow them through the trial, post-trial and appeal process. A verdict this past week perfectly exemplifies that risk. The newspaper headline states "Black LA firefighter awarded $1.1 million." It wasn't so rosy for the plaintiff 6 years earlier, when he lost his trial based on allegations of nearly 3 decades of racial discrimination, harassment and retaliation. However, a few years later, the appellate court reversed the verdict due to jury misconduct and ordered a new trial. It is unknown if the parties tried to settle the case before either trial, the odds are that they did.

In another recent case, a multi-million dollar retaliation verdict for plaintiff was vacated by the appellate court, but this time, no new trial, no second chance. It is usually pretty clear why cases don't settle: One side wants more than the other side wants to pay. However, getting there requires an analysis of each side's risk factors. Even in the "best" of cases, there are risk factors- this week's verdict is the perfect lesson on that. The City won in the first trial, but encountered things they could not control- the jury and the reviewing court. The Plaintiff lost in the first trial, encountering something he did not anticipate-that the jury would misbehave and cost him a win (or that perhaps he was not convincing to the jury). Many trial lawyers have encountered the pain of a successful outcome "taken away" by another court, sometimes due to jury, judge or counsel conduct, or an error in the law, or, even a later change in the law. The bottom line is there are so many chances in the litigation process where things can go wrong for either party. Things can go wrong even in the trial. No one is immune. So at mediation, one need only look at these 2 verdicts, and so many others like them, to appreciate that sometimes the bird in the hand may not be such a bad idea.