3Chairs Mediation Group

When somebody wrongs us, almost all of us want our day in court. In the end, almost all of us end up choosing mediation or another means of alternative dispute resolution to resolve our case. Why is that so?

According to the Administrative Office of the U.S. Courts, in 2020, civil litigants filed 332,732 federal lawsuits nationwide. That, in a year when 300,000-plus pending cases already jammed federal trial court dockets.

Much less than one percent of federal cases go to trial. Litigants abandon some, by voluntarily withdrawing them. Some, the courts dismiss because the lawsuit is legally defective. Courts resolve others by trial on the papers; “summary judgment”, where litigants agree about the facts and it’s up to a judge to decide an outcome according to the law. Together, voluntary withdrawal, court dismissal and summary judgment put a dent into the federal court caseload, but that dent, is modest. Upwards of ninety-five percent (depending upon the data set under scrutiny) of federal cases settle, and often do so early, because litigants voluntarily resolve their dispute by way of mediation, or another means of alternative dispute resolution.

In the federal system, there are ninety-four trial courts, eleven appellate courts, and one Supreme Court. Nearly all the federal trial courts obey rules that order, or “strongly encourage” mediation as a necessary early step in every non-criminal lawsuit. There is even a strong bias favoring mediation of federal appeals. Most federal circuit courts of appeal have formal rules instituting a practice to mediate civil cases.

In its State Court Caseload Digest, the Court Statistics Project, a joint endeavor of the Conference of State Court Administrators and the National Center for State Courts, reports litigants filed an astonishing 83.5 million new civil lawsuits nationwide in pre-pandemic 2018. In the fifteen most populous states, civil law battles about contract terms and enforcement predominated. Only +/- 4% of all cases filed were negligence claims.

In America’s 21 most populous states, juries rendered a verdict in less than one-half of one percent of the cases filed. Judges, sitting alone and without a jury because litigants wanted it that way, disposed of even fewer cases than that.

In state courts too, judges sometimes dismiss cases because they are legally defective. The trial-on-the-papers, summary judgment route, disposes of another trivial fraction of the state courts’ docket. What happens to the tens and tens of millions of remaining state court civil cases every year? Upwards of ninety-five percent settle by agreement of the parties.

Every year, tens and tens of millions of us start our fights in court and ninety-five out of one hundred of us voluntarily take the mutually agreeable settlement off ramp long before our trial lawyer picks our jury. Mediation works, and almost all of us choose it.