In the first two Parts of this series on the Overview of Civil Litigation, we discussed how a lawsuit commences and the types of discovery tools available to investigate the facts of the case. In this Part III, we discuss mediation and trial.
Mediation is an opportunity for the parties to get together to try to settle some or all of the issues in their case without the court’s intervention by using a neutral “mediator” to help the sides find common ground. In Colorado’s Fourth Judicial District (El Paso and Teller Counties), mediation will almost always be required prior to trial. In fact, in some courts, you can’t even schedule trial until you’ve completed mediation. The mediator does not decide anything in your case or make any rulings or orders; the mediator’s only purpose is to facilitate settlement negotiations.
Prior to mediation in civil cases, each party will typically submit a confidential statement to the mediator outlining their arguments and providing exhibits that support their positions. (These statements are less common in family-law mediations, at least in this judicial district.) Nothing in the confidential statement will be shared with the other party without your permission; its purpose is to get the mediator up to speed on your arguments and any other issues you think the mediator should know about.
Mediation in civil cases will usually last at least half a day, but can take multiple days in complex, multi-party litigation. Unlike mediation in television and the movies, the parties are not ordinarily placed in the same room. While putting the parties in the same room creates drama and humor on the screen, in litigation, it usually only serves to get the parties’ emotions fired up. The more emotion the parties are feeling, the less likely they are to be able to think logically and reasonably about their dispute. Thus, the less logical and reasonable thinking, the less likely the case is to settle.
The better practice, in our opinion, is for each party to be in a separate room with his or her attorney and have the mediator move from room to room talking to the parties about their cases. Most mediators will discuss with you the weaknesses of your case and the strengths of the opposing party’s case. The purpose of doing this is to help you understand the risks of trial, the benefits of settlement, and to get the parties to make concessions and compromise. Rest assured, your mediator is doing the same thing to the other party, pointing out problems in their case, discussing the strengths of your case, and outlining the risks of trial.
If the case is about money, which is the subject of most most civil litigation, then the parties will exchange settlement demands. This process might feel a bit like horse-trading or negotiating with a car salesman. The initial offer of a paying party is usually much lower than that party is actually willing to pay to get rid of the case. On the other side, the party demanding money will usually accept less money than the amount of their original demand.
If the parties reach common ground, then the case can settle. If it settles, the parties will typically sign an abbreviated form of settlement agreement, sometimes called a “memorandum of understanding,” which is a sort of placeholder agreement until the attorneys can draft the full settlement agreement, which can be quite complicated depending on the issues in dispute. Even so, the settlement agreement or memorandum of understanding you sign at settlement is binding and enforceable in a court of law, so it is nearly impossible to back out of one.
One of the major benefits of mediation is that all discussions are confidential and cannot be used in court. The policy behind confidentiality is that the parties should feel free to speak without the worry that their words or positions taken in mediation will be used against them in the litigation. For example, just because a plaintiff is willing to accept $100,000 in mediation does not mean she cannot later seek more at trial if the case doesn’t settle. The reverse is true for a defendant: the fact that a defendant is willing to pay a certain amount of money to get out of litigation doesn’t mean she can’t argue at trial that she should pay nothing to the plaintiff.
Mediation is an extremely valuable tool in civil litigation. Even if you can’t agree to settle all issues, you may be able to settle some of them, or you may be able to get momentum on discussions moving enough that you settle between the lawyers after mediation.
If the case doesn’t settle or get dismissed for some other reason, it’ll have to be resolved through trial. Trials can be held before a jury, where the jury decides the facts, or before a judge without a jury (called a “bench trial” or “trial to the court”). There are different strategic reasons for opting for a jury trial versus a bench trial, and you need to request a jury at the beginning of the case.
Thanks to our legal system’s origins in England, certain civil claims cannot be determined by a jury, and others can. However, most of the common types of civil litigation—personal injury, breach of contract, and property damage—can be tried before a jury.
Trials in civil litigation typically last about a week. Time at the beginning of the trial is spent picking a jury. The plaintiff—the party who filed the lawsuit—will put on his or her case first, and then the defendant will put on his or her case.
Once all the evidence has been presented, the judge will instruct the jury on the law they are to apply and they will begin deliberations. As you may know, the “burden of proof” in criminal cases is “beyond a reasonable doubt,” which is a very high standard of proof. In civil cases, however, for most types of claims, the burden is “preponderance of the evidence,” which basically means “more likely than not.” Once they’ve made a decision, the jury will have a verdict form that they fill out, including whether the plaintiff is entitled to damages, and if so, how much. Once that’s complete, the jury announces their decision and is excused.
After trial, the judge may need to adjust the jury’s award based on certain laws, such as those that limit certain types of damages, set offs, etc. At this point, if a party doesn’t like the outcome of trial, there isn’t much he or she can do about it with the judge absent some extraordinary circumstances. If a party thinks that something in the case was done incorrectly, they can file a notice of appeal and take the case up to the Colorado Court of Appeals. Usually, because of the way the law is designed, parties are stuck with the outcome of trial.
Mediation and trial are crucial steps in the process of civil litigation. In order to succeed at mediation or trial, it is important you understand all the rules and procedural requirements. For that reason, we recommend you hire an attorney if you’re contemplating litigation or already involved.
The experienced lawyers at Springs Law Group would love to help you with your case. We offer free initial consultations to discuss the unique facts of your case and determine what assistance you need. We can provide a more specific overview of what to expect in your litigation and provide an estimate of what it would cost.
Give us a call today!