Joseph P McMahon Jr

Facilitation, Conflict Management and Dispute Resolution
Joseph P. McMahon Jr.

+303-333-1960
617 Steele St., Denver CO USA 80206-3941

Tools for assessing and discussing possible trial outcomes

Although many mediators focus on their subjective prediction of trial outcome, another approach is to determine whether the parties can openly discuss the factors that will drive the various outcomes that could result from trial or arbitration. Some methods are briefly described below and the link is to a diagram showing the approach. These tools can be a framework for discussion with legal counsel and parties - in joint session - about how trial risk and outcomes can be viewed. The goal is not agreement on trial risk (if that were present the case should have settled immediately), but rather a candid discussion of possible outcomes and driving factors for each.

How predictable are trial outcomes?		Family of outcomes
A key question in assessing trial outcomes is whether the case has any meaningful level of predictability? Even if it does not (and many do not), can the parties consider what factors make the case outcome more or less predictable? The above link identifies some possible considerations.		One approach to looking at and exploring trial outcomes is to consider the "family" of possible outcomes - such as the ranges of verdict amounts - and then consider what facts, law or testimony would result in each outcome. An example with four outcomes is linked above.

Spectrum of outcomes		Key court decisions and driving forces
Similar to the "family" of outcomes is an approach to put outcomes on a defined "spectrum" and then assess what drives outcomes on the left, middle and right side of the spectrum. Spectrum example.		Another approach is to look at the decisions that the judge, jury or arbitrator must make (via decision tree) and consider what law, facts or testimony would result in a decision going one way or the other. An example is linked above.

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