The Jury Trial Versus Mediation


Jury trials originated in England centuries ago and were imported to the American colonies. Today, they are constitutionally guaranteed throughout the United States.

What is a “Trial by a jury of your peers”? In Massachusetts, a jury generally consists of 12 jurors, plus 2 alternates. The alternates step in only where another juror has a medical or other emergency and must leave the trial before a Verdict is rendered. In order to prevail in a personal injury jury trial in Massachusetts, the Plaintiff (the person who filed the lawsuit) must convince 10 out of 12 jurors of his position. This can be contrasted with the laws in New Hampshire where the Plaintiff must convince 12 out of 12 jurors of his position, a more difficult proposition. In both states, the jurors act as “fact finders”. They listen to all evidence, apply the law, and ultimately render their Verdict which is generally the “final word”.

Over the last several decades, the percentage of cases which proceed to Jury Trial has dropped, now at just 6%. Why is that? One reason is the loss of control of the outcome inherent in a Jury Trial. After all, entrusting your case to 12 “strangers” on a jury is unappealing to many. Until the jury’s verdict is rendered no one – whether judge, parties, or lawyers – really knows what the jury’s Verdict will be. Another reason is the “cost” to properly pursue a trial by jury. These “costs” relate to experts, medical and otherwise, who testify in order to educate the jury as to a particular issue or specialized area. Finally, the rise of mediation has greatly contributed to jury trial decline. A “mediation” is a voluntary process in which the personal injury victim and the insurance company of the “at-fault” party agree to participate. The single “mediator” is trained in assisting the parties to come to agreement. About 85% of Mediations are successful, and unlike jury trials, the plaintiff/victim – through his attorney – is an active participant in the process. Further, either party may walk away from the Mediation if unhappy with how it is progressing. Additionally, Mediations are even more convenient than in years past as they can be conducted remotely, through Zoom.

Though most personal injury claims proceed to Mediation and are successful, there are those 15% or so which are not. In that case the centuries old jury trial option awaits the parties.