Mock Trials and Mediation: Why Should I Consider Conducting a Mock Trial When a Mediation is Approaching?
FAQ:
- If my case settles we won’t go to trial. Shouldn’t I just wait to see if we can settle?
- We rarely try cases, why should I conduct a mock trial?
- We don’t even have a trial date, isn’t it too early for a mock trial?
Excellent questions, as most cases do resolve before trial.
So why conduct a mock trial?
Response: Mock trials are settlement tools to help you with the “4 E’s”
- Evaluation
- Earlier settlement
- Efficient settlement
- Expense savings
How?
1. Mock trials will give you clarity regarding the value of your case:
To have a productive mediation it is necessary to have a realistic perception of your case value, which will allow you enough time to set a proper reserve and to have meaningful intra-company discussions so proper monetary authority can be obtained well in advance of the mediation. This type of pre-mediation preparation will more likely result in an earlier more efficient settlement, which will result in saving expenses.
2. Mock trials are tools of settlement leverage in advance of mediation:
If you have a plaintiff, co-defendant, or co-carrier impeding settlement due to a differing case evaluation, a mock trial and companion damages assessment will give clarity in the form of supporting data to bring the parties closer to a resolution. If the results of the mock trial do not support your initial analysis, you may want to revisit your settlement strategy, as well as reserve analysis and authority request.
Negotiating power comes from knowledge and information. A mock trial will strongly position you to respond to your adversary’s valuation of the case (if you obtain favorable results you may want to share the results of your mock with opposing counsel and/or the mediator to facilitate settlement).
3. Mock trials evaluate the factual strength of your case to inform your settlement strategy:
By identifying critical issues, and testing the theory of your case prior to mediation, you will have the time to refine your case presentation and strategy. How strong is your case? Your experts? Your evidence? Let the mock jurors inform you, then you can negotiate from a position of knowledge and strength.
