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24 Alternative Resol. 1 (2014)

handle is hein.barjournals/altresolut0024 and id is 1 raw text is: Mediation Training Improves Litigation Outcomes Annual ADR Section CLE: January 23, 2015 in Austin Trial lawyers with mediation training make the right call on whether to ac- cept the last offer or proceed to trial more often than those without it. In fact, plaintiffs attorneys reduced their error rate with mediation train- ing by 12% and defendant's attorneys re- duced theirs by 4%. Palo Alto decision analyst Randall Kiser has been studying jury verdicts against the last offers and demands for a decade. His study of California attorneys, Jonathan D. Glater, Study Finds Settling Is Better That Going to Trial (Aug. 7, 2008), made the front page of The New York Times. He has since broad- ened the research to other states. Kiser's findings have been widely discussed and critiqued, but the methodology was straightforward: if the verdict fell below the defendant's last offer, it was an error not to take that offer even if the plaintiff was awarded something. Same for the defendant: they erred if the verdict exceeded the plain- tiff's last demand. Kiser also measured the cost of error. It's one thing for a plaintiff to technically miss the last offer, it's another to miss is it by a large margin. So the cost of error was simply the magnitude of the error in dollars. Plaintiffs were technically wrong (60% error rate) more often that defendants (25%). But defendant's cost of error was much higher when they were wrong: $1,403,654 v. $73,400. Cost of Eror i or Rate L C t f FrTO A______ i on $73,,M0 S64 2159 ImproveFent I., W9,200$ .OO ~ 5k Interestingly, trial lawyers who also had me- diation training were found to have both low- er error rates and cost of error. Kiser con- trolled for a number of factors not knowing which would affect these numbers. He meas- ured whether law school or firm, years of practice, and other variables reduced errors. But the only variable that materially reduced error rates and the cost of those errors turned out to be whether the advocates been trained in mediation. Overall, trial attorneys with mediation train- ing made fewer errors and they cost less. Plaintiffs attorneys with mediation training made 12% fewer errors and they cost $5,000 less. Defendant's attorneys made 4% fewer errors and they cost $514,454 less. E 250 1-

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