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Jury Mediation & Private Trials

Jury Mediation

JURY MEDIATION™ gives parties a preview of how a jury will likely see their respective cases, all without the cost and risk of a jury trial. This simple process removes much of the guesswork and uncertainty from litigation by putting a jury’s voice in the room with the mediator, the parties, and their attorneys. The feedback of representative “jurors” from the community gives both the plaintiff and defense an objective view of how a jury sees the evidence and issues in their case. This third-party “reality check” can often help the parties to let go of seemingly entrenched positions and successfully resolve the case.
How Does it Work?

  • A Decision Analysis Consultant and an ADR Neutral trained in the process by Decision Analysis conduct a short preparation session with the parties to advise them on how to effectively prepare for the Jury Mediation™ process.
  • A pre-mediation meeting or conference call is held between the designated neutral and the different parties to narrow the issues in dispute and agree upon the best Jury Mediation™ format.
  • Jurors for the Jury Mediation™ are recruited to match the jury pool in the venue where the case is to be tried. These Jury Mediation™ jurors are screened for potential cause criteria. The chosen jurors sign confidentiality agreements.
  • At the scheduled Jury Mediation™, the attorneys for each party give a short presentation of their case in an opening statement format, including exhibits and arguments. They may also present short witness examinations and give short summary arguments.
  • The jurors are given brief instructions on the key legal issues and then deliberate. The mediator and a Decision Analysis Jury Mediation™ consultant then moderate a discussion with the mediation jurors on their impressions of the case, the parties, and the legal questions. Counsel and their clients can watch both the presentations and juror discussions through a one-way mirror or by live video feed.
  • The Decision Analysis Jury Mediation™ consultant and the neutral will then discuss with the parties how the jurors responded to and decided the case. By analyzing juror questions, concerns, and interpretations, the Jury Mediation™ consultant and mediator can advise both parties on likely scenarios that may play out with a real jury in trial.
  • The parties have the option to either immediately mediate the dispute with the designated neutral, or they may adjourn to privately discuss and evaluate the results and return on another day for their next mediation session.

What Are Some of the Options?
JURY MEDIATION™ is a flexible process and can be designed in a number of ways to accommodate the goals of the parties.

  • Depending on case complexity or how much evidence the parties want to present, the Jury Mediation™ can be conducted in a half-day, full day, or even multiple-day sessions.
  • If desired, more than one jury can listen to the case and different issues can be presented to each panel, to ascertain how juror reactions to the different case issues affect the jury’s verdict decision.
  • For parties that are concerned about disclosing sensitive information to the other side, the case can be presented to the mediation jury outside of the presence of the other party.
  • To resolve specific differences between the parties, the Jury Mediation™ can focus on discreet case issues that may be blocking case resolution, such as liability disputes, commercial or contractual interpretations, verdict question evaluations, or damages evidence.

Private Trials

The cost of litigating a case grows steeper every year. With State and Federal budgets shrinking, the docket for most trial judges grows by the day. With reduced staff, fewer resources, and less time to navigate this growing stack of cases, it is taking longer for cases to go to trial. When they finally do, the trials take longer and are more expensive. These concerns come on top of questions that litigants normally have about the judges, jurors, and venues where they try their cases. This systemic strain makes it harder and harder for judges, juries, and even litigants to make more informed decisions about their cases, making a jury trial seem even more like “a roll of the dice.”
To alleviate these concerns and uncertainty, we have developed a program to give litigants a quicker, more informed, and less costly means to resolve their claims. Private Trials allow parties to resolve their cases in a structured, expedited environment, while still allowing them all the protections afforded by a regular trial.
The program works best for litigants who:

  • Want the finality of a jury trial but do not want to wait years for an available courtroom.
  • Want more control in selecting an arbitrating judge or judges to make rulings in the matter.
  • Want to manage the growing costs of a lengthy jury trial in the courts.
  • Want more input into the procedural elements of the trial.
  • Do not want to go through a lengthy and costly appellate process.
  • Want more accurate feedback in seeking to resolve cases.


Private Jury Trial: How it Works

1. By agreement with both parties, a Private Jury Trial can be conducted at any time, even prior to the formal close of discovery.

2. An arbitrating Judge is selected.

3. If conducted prior to the close of discovery, the parties will tender interrogatories and limited deposition proposals to the selected arbitrating Judge. A limited discovery plan is organized and scheduled.

4. After close of discovery, both parties proscribe the dispute in a mediation statement form. This includes a list of proposed evidence, exhibits, and testimony.

5. By agreement, the arbitrating judge will read the statements, hear oral arguments, and make proposed rulings on the evidence and the scope of legal issues in the case.

6. By agreement, a decision would be made about the length of the Private Jury Trial and a proposed schedule for the trial. This would include voir dire, opening statements, direct and cross-examinations of witnesses, and closing arguments.

7. By agreement, jury instructions will be submitted, considered, and ruled upon by the arbitrating Judge.

8. At that point, the parties will agree on the number of jurors and number of alternates.

9. Jurors will be recruited from database lists, by randomized selection, or through a combination of the two.

10. For a jury of 12, 18 jurors will be recruited. Cause will be established through a series of questionnaire responses that jurors are asked before they are recruited. Each party will get three peremptory strikes.

11. Our private jurors will fill out questionnaires on their demographic backgrounds, life experiences, and attitudes on issues relevant to the litigation. These will be reviewed by the parties prior to the start of the trial.

12. Attorneys will then get approximately half an hour to conduct voir dire. After a short recess, the attorneys will make their strikes and the seated panel will be sworn in and will sign confidentiality agreements.

13. The Judge will pre-instruct jurors on the agreed-upon jury instructions.

14. The plaintiff will then call their witnesses with the Judge keeping track of the time allotted for each side’s examination.

15. Depending on case complexity, parties will be encouraged to provide trial notebooks for each of the jurors and evidence summary statements may be given.

16. This same process will be repeated for the defense case and plaintiff rebuttal case.

17. At the conclusion of evidence, attorneys will give short closing arguments.

18. Jurors are then re-instructed on the law guiding them in the case. They then retire to deliberate. The parties watch them deliberate through a one-way mirror or closed circuit television feed as the jury then deliberates to a verdict.