Mediation: The Advantage Over Juries
Juries are unpredictable. Mediation is a great alternative. Why? It’s all about beliefs: Wrong beliefs about juries that can lead to unexpected and painful results.
Nassim Nicholas Taleb wrote a book a few years ago entitled “The Black Swan” (not related to the movie of the same name). The inscription on my copy reads: “To Garry Cantrell – Beware the Black Swans!”
The inscription makes it sound like a 50’s horror movie doesn’t it? It isn’t. Briefly, the book explores the impact of outlier events, or events that are perceived as being highly improbable. It takes its title from the Old World ornithologists’ notion that all swans were white, until they happened upon Australia and found its black swans. With that unpredicted discovery, the general statement that all swans are white became invalid. It thus “illustrates…the fragility of our knowledge.”
It’s the same with the law: Every time a jury is picked in a trial, a new Black Swan is created. They are inherently unpredictable and can produce the unexpected. Anyone who believes they can predict what a jury will do has not tried many jury trials, if any.
I have personally seen this, and here is just one example: Several years ago before I began mediating full time and was still practicing law, while I was in the courthouse I caught the end of a car wreck case in a county bordering Dallas County. The case involved a 17- or 18-year-old female who was a passenger in her 20-year-old boyfriend’s car when the boyfriend got into a road rage situation with another car.
The boyfriend had been drinking, as had the driver of the other car. There was no evidence entered one way or another as to whether the young woman had been drinking. It was undisputed that the young woman begged her boyfriend to stop and let her out. He didn’t, and they crashed into the other car. Or maybe the other car crashed into them. Or maybe they crashed into each other.
The young woman had suffered broken bones, scarring, and had some soft tissue damage. Each driver blamed the other and refused to accept responsibility, so she sued both. The attorneys both agreed that she was completely blameless and that she suffered real injury. The only thing they were really trying the case over was the amount of blame to be assigned to each driver and the amount of damages to be awarded on top of her medical bills. No one argued that she had not really been hurt. Clearly, she had.
The jury came back and awarded the young woman no damages. Zero, zip, nada, naught, nix, nothing. They didn’t require either drunk driver to pay any of her medical bills, or lost wages, or compensation for her scarring, or for her pain and suffering.
I had the opportunity to listen to one of the lawyers speak with the jurors afterward. Why had they come back with such an unpredictable finding? It was this: They said that they “wanted to send a message to the young woman that she shouldn’t be going out with older guys who drink.” I’ll just let that sink in.
Each jury is unique, and unpredictable, and is its own Black Swan. That’s why you should avoid juries. That’s why you should choose to mediate.
Garry Cantrell – November 18, 2017