Mediation Day: BATNA and Trial
Resolving a case at mediation won’t tell you that you’re right. But neither will a trial. And trial comes with hidden costs.
For early mediations, I’ll start with the hidden costs and the long road to trial. For cases closer to trial, we’ll start with how trials are structured, what they are designed to do, and what they aren’t.
Time and Energy are Finite
Legal matters consume a party’s time, energy, and attention, even if nothing is on the front burner. They sit, unresolved, “like a splinter in your mind, driving you mad.” A little much, but that nagging feeling of something unresolved is ever-present when a legal matter is active. Thoughts of the case will pop up randomly, in unrelated meetings, while doing the dishes, in dreams. Legal matters suck attention from anywhere and everywhere.
And this attention, this time, this focus; it’s something you can never get back. Most of the time there’s nothing you can do to move the case forward. Courts proceed at their own pace; you can’t speed them up. With how backed up our courts are, if a case doesn’t settle at mediation, parties are often waiting 18-24 months before trial. I still have an active case that was filed in 2017.
Depending on how a party deals with uncertainty, I’ll walk them through how litigation is a time-and-energy leech. I’ll use stats, stories, open-ended questions, anything that will help the party consider that the long road ahead is longer than they know. Unless a party’s been through litigation, they discount how much of an attention drain the matter will be.
That’s a lot of discovery, depositions, and distraction that’s often discounted because a party wants to know they are “right.”
Trials Do Not Determine Truth
Jury trials are not designed to divine truth. The judge does not act as a chief inquisitor, setting out a list of questions that each side must answer. The judge sits on a raised platform, in a robe, usually quietly, ruling on objections, thanking the jury for their time, and reading instructions.
The jury does not actively participate. They interact with the attorneys during voir dire. And then if they’re chosen to sit on the jury, they don’t get to raise their hands and directly question witnesses. They can’t pause the case if something doesn’t make sense or they want to know more.[1] They sit in a box and get talked at – for days, weeks, or months. And then they answer a strict list of questions, usually simply yes or no, based on the applicable evidentiary standard.
Trial is a battle of competing stories, not a search for truth. Narratives presented by hired attorneys (often with a financial interest in the outcome), each framing facts as part of an argument. The parties don’t get to be “heard.” The actual parties only talk if they are testifying. This is not an unbiased process or truth-finding exercise. The best story wins, sometimes regardless of underlying “facts.”
It’s a process designed to assign liability, to assign blame. Trial pits two competing narratives against one another and the winning one convinces the jury to answer the questionnaire in that party’s favor. The jury questionnaire is targeted, based on forms, and designed to limit responses so that issues on appeal will be similarly limited. The jury isn’t going to tell a party: “you were right, they lied, you are vindicated.”
I’ve won and lost. Even with the wins, the trial didn’t satisfy my clients (although they certainly preferred the result). “Why did they make us go through this?” is an all-too-common refrain. And for a corporate defendant, the only thing it “wins” is a bill.
If you’ve played poker long enough, winning at trial feels like winning a hand: of course you won. You played the hand correctly, you had the highest percentage of winning, you made the right call, you expected to win. But the losses… they hurt. You can play your hand perfectly, you can be “right,” but sometimes the river doesn’t go your way. Aces get cracked. AK loses to A10. And liability is assigned to your client.
The Frame
Through this process of discussing BATNA and trial, I’m framing a mediated resolution as an alternative to continued uncertainty. This helps transition our discussion from facts and open questions to putting a dollar value on the case. By offering a negotiated resolution as a means to avoid uncertainty and acknowledging the trial won’t give the cathartic release that’s often expected, I can begin to separate the individual, their experience, their pain, from the hard dollar value that usually accompanies employment cases. We can keep the focus on resolving uncertainty, sidestepping the time-and-energy suck of continued litigation, and avoiding the battle of narratives at trial. I can help frame the dollar value as a way to contain the past and focus on the future.
Next week: Some basics on valuation, types of offers, and non-monetary terms.
Until then,
Monday x Morello Mediation.
None of this is legal advice. Your mileage may vary.
[1] If permitted, jurors may submit written questions to the judge. The judge then gives those questions to the attorneys so they can lodge objections. Then the judge reads the non-objectionable question to the witness. CRC § 2.1033. In practice, this process is quite stilted, these questions are few and far between, and do not account for the bulk of the questions asked during a trial.