July 09, 2019 Articles

Can You Turn a Failed Mediation into a Trial Asset?

Learn how to treat mediation as a mini mock trial, streamline the case, and use the mediator as a neutral expert.

By Anne E. McClellan

Failure is simply the opportunity to begin again, this time more intelligently.
—Henry Ford

The vast majority of civil cases never make it to trial. The phenomenon of the “vanishing trial” has been attributed to many causes, including the prevalence of mediation and other forms of alternative dispute resolution (ADR). In fact, some judges view trials as failures—failures caused by attorneys not doing their job to obtain a negotiated resolution. Almost all federal district courts require parties to participate in or at least consider the use of ADR, and there are about 250,000 civil case mediations per year. Despite best efforts, many of those mediations do not resolve the case. Attorneys owe it to their clients not only to be skilled at handling mediations but also to know how to turn a failed mediation into an asset for trial.

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