As a nascent profession, mediators have made great strides toward redefining how civil litigants in particular approach conflict resolution, while simultaneously witnessing the decline of the traditional jury trial. At the end of last year, amidst the turmoil and upset of the pandemic and national election, a law review article quietly appeared in the Louisiana Law Review entitled “Reasons for the Disappearing Jury Trial: Perspectives From Attorneys and Judges.” In this survey of almost 1500 attorneys and judges from every state and the District of Columbia, Professors Shari Seidman Diamond and Jessica M. Salerno provided the most recent evidence to date in support of the paradigm shift away from jury trials, toward alternative dispute resolution. The takeaways from the article for current practitioners, as well as the next generation of mediation stakeholders, are as clear as they are profound.

The number of jury trials is dropping dramatically

The authors of this quantitative analysis begin with the observation that “the number of jury trials has dropped so dramatically in recent years in both federal and state courts that the jury trial is an exceptional, rather than a commonplace outcome.” Their survey of civil case filings in federal courts, where the data is most reliable, concludes that, although civil filings have increased fourfold since the early 1960s, “the percentage of civil cases disposed of by jury trial decreased from approximately 5.5% in 1962 to 1.2% by 2002 and to .08% by 2013.”

Similar trends were reflected in state courts: “From 1976 to 2002, civil jury trial rates fell from 1.8% to 0.6% in courts of general jurisdiction in the 22 most populous states.” These trends, and their trajectory into our more current year, underscore what many of us have witnessed firsthand, that the declining role of the jury trial in our litigation environment is as real as it is profound. It’s a trend further exacerbated by the now year-long shut down of jury trials, due to the COVID-19 pandemic.

A shift toward alternative dispute resolution

More specifically, the attorneys and judges surveyed were asked to compare the four primary dispute resolution procedures used in civil cases: “arbitration, mediation, jury trials and bench trials” and rank them in terms of: “predictability, speed, cost effectiveness and fairness.” Perhaps not surprising to those of us in the profession, mediation ranked significantly higher than the other three procedures across all criteria. Additionally, the respondents personally preferred mediation over all other dispute resolution procedures.

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