In virtually every case that is filed in a construction dispute litigants focus on their ultimate day in court when they will have the opportunity to assert their righteous position that will be proven. Sorry folks, unless your case is a “unicorn” it will be resolved by settlement or judicial action long before it is presented to a judge or jury for resolution.
IN THE WEEDS – REAL STATISTICS OF HOW MANY CASES ACTUALLY GO TO TRIAL
We researched the statistics regarding the percentage of civil cases filed that ultimately proceed to trial, whether before a jury or a judge. We focused on two primary sources: the Administrative Office of the U.S. Courts for federal courts statistics and the Pennsylvania Unified Judicial System for Pennsylvania – specific data.
Federal Courts
The Administrative Office of the U.S. Courts (“AOUSC”) publishes annual “Federal Judicial Case Load Statistics” reports that appear to be the most comprehensive and authoritative source for this information. These reports include nationwide and district – specific statistics regarding:
Civil cases filed, terminated, and pending;
Civil filings by nature of suit (i.e., contract, torts, products liability, etc.);
The manner in which civil cases are terminated (court actions, jury trial, non-jury trial); and
Annual judicial caseload profiles for each federal judicial district.
Nationally, the federal courts handle nearly 350,000 new civil filings annually, while maintaining more than 500,000 pending civil cases. According to the 2025 AOUSC statistics, only 0.3% of civil cases proceeded to either a jury trial or non-jury trial.
For the US District Court for the Western District of Pennsylvania, the percentage of filed cases resulting in a trial is even less. In this regard, the judicial caseload profile for the Western District for the 12 month period ending March 31, 2026 reports:
4,495 filing;
4,284 case terminations;
4,087 pending cases; and
30 trials completed.
Pennsylvania State Courts
The Pennsylvania Unified Judicial System (“UJC”) publishes annual civil caseload reports for the courts of common pleas. These reports provide statewide statistics regarding civil filings, pending cases and the manner in which civil cases are resolved.
The most recent data available is for 2024. The reports indicates:
149,859 civil cases docketed;
150,250 cases processed;
189,246 pending at year end;
38,282 settlements (25.5%);
6,846 cases decided by an arbitration panel;
26,077 dismissed/discontinued cases (17.4%);
474 jury trials (0.3%); and
1,793 non-jury trials (1.2%).
These statistics indicate that only about 1.5% of the processed civil cases proceeded to either a jury or a non-jury trial, while the overwhelming majority resolved through settlement, dismissal, dispositive motion, arbitration, default judgment or other procedural means.
American Arbitration Association
In business to business arbitrations filed with the American Arbitration Association it is estimated that only 35% of those cases go through a hearing to final award. The number of matters actually going to a hearing is necessarily higher than those in civil cases that are filed in our courts. This is so, because most contracts that contain an arbitration provision also contain a provision requiring mediation as pre-condition to filing an arbitration demand. When considering the number of disputes that are resolved through mediation prior to the filing of an arbitration demand, the percentage of disputes that actually proceed to an arbitration hearing tracks with the percentage of civil cases that actually go to trial.
SO WHAT ARE YOU WAITING FOR?
If your case is unlikely to actually try (lottery odds), why not get to a mediation as soon as possible? The usual response is that it is not productive to proceed to an early to mediation when the case isn’t sufficiently “mature.” The thinking in this regard is that the parties are not sufficiently knowledgeable regarding the facts necessary to make an informed and intelligent settlement decision.
This argument has some merit. In many circumstances, some “limited” discovery is necessary and helpful for the parties to engage in meaningful settlement discussions. The key word here is “limited.” The parties must weigh the cost involved in “limited’ discovery against the level of information necessary to make a good settlement decision. The more that is spent on “limited” discovery, the harder the case will be to settle. The obvious goal in engaging in early mediation is to avoid the attorney’s fees, expert fees and human costs will be incurred. Even when it is advisable to do some “limited” discovery, early mediation can be quite helpful. By engaging early with a mediator, some of the issues involved can be resolved and the mediator can assist the parties with the remaining issues directing document and information exchanges that limit the costs.
In the construction world, the need for “limited” discovery is often overstated. The typical commercial construction project uses project management software such as Procore, Blue Beam, Aconex, BIM 360 and Autodesk docks. Through these systems, the project teams (owners, contractors, architects, engineers and construction managers) deposit nearly all of the relevant project information providing the team with access to all of the important project information including:
Bid documents;
Project drawings with updates;
Project specifications;
Meeting minutes;
RFIs;
Submittals;
Change orders;
Pay applications;
Daily reports; and
Schedules.
With access to nearly all of the relevant construction project information, there is usually little reason not to engage in early mediation efforts. Further, the sooner the effort begins, the less that is forgotten by the project team members particularly when they are engaged on a new project and/or have changed employment.
SO WHAT IF AN EARLY MEDIATION IS NOT SUCCESSFUL?
It all depends on how you define “success.” Of course, an obvious definition is that the dispute resolves in its entirety. However, even a mediation session that does not result in a complete or final resolution will yield several tangible benefits. First, you will receive more information regarding your opponent’s case and position in one day then you will in several weeks of discovery. Second, the information that you do receive will allow you to be more focused in your discovery efforts based upon the information that is learned. Third, you will learn what the primary issues and concerns that your opponent actually has. Unless you can read minds, you will learn some valuable information going forward. Fourth, it will force you to rethink some of the assumptions you hold that are directing you into areas that are not real or important.
Also, whether a mediation is successful should not be measured in how long it takes to resolve the matter. While it is ideal to resolve the matter in the one or two day session that is initially scheduled, cases now often require more effort. Should a case not resolve after a day of scheduled mediation, subsequent consideration by the parties in the days following the session of the new information that is learned can lead to a change of mind and perspective that, coupled with additional mediation efforts, either by phone or in-person, will lead to a resolution of the matter.
Frankly, it is difficult to come up with many, if any, good reasons not to pursue early mediation.
