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Mediating Pain And Suffering Is All About Balance

First published by The Daily Journal on July 30, 2010. Republished with permission.

For a while it always intrigued me how when mediating employment and personal injury cases, attorneys and their clients attach monetary value to their emotional distress.

When a plaintiff sustains an injury due to an automobile accident or gets injured as a consequence of ‘fall and slip’, or claims infliction of emotional distress by his or her employer, the issue of damages and adequate compensation is a key concern.

How these damages can be assessed is a problematic matter. How do we appraise what kind of monetary award plaintiffs deserve? What are the objective criteria, if any, we should apply to the subjective perceptions of injured parties? These are difficult questions.

After an injury, parties often go into an emotional spin. They worry that they will not be able to take care of their families. They worry they are not attractive enough for their husbands or girlfriends, or to find a new mate. Many employees are anxious about going back to the work, which creates enormous stress. After a car accident, people are constantly vigilant. They avoid freeways. They frequently check their rear view mirror to make sure the car behind them is not too close. The traumatic experiences invite sleeplessness, continuous worry, and anxiety. Yet the legal profession does not prepare attorneys for the psychological trauma of their clients. After all, attorneys are trained to argue, reason, and analyze.

Another issue contributes to the confusion – our society prides itself on self-reliance and self-sustenance. We are inundated with messages about overcoming obstacles, being tough, surviving in a hostile environment, and fighting negative circumstances. Yet when cases are argued and rights and responsibilities are weighed, the plaintiffs’ counsels make they get as much sympathy for their injured clients from juries as they can. The more sympathy clients get, the larger the monetary compensation they may be awarded. Therefore, the pain and suffering occasionally might be exaggerated. This can be done unintentionally when clients’ anxieties contribute to their subjective assessments. Personal histories and negative experiences, coping ability, or the lack of it, often determine how clients evaluate their future and assess how much compensation they deserve, based on the misfortune inflicted by the guilty (or the liable) party. It is not unusual to hear, “For all they did to me they must pay.” This can be done intentionally, when clients deliberately exaggerate their pain and suffering so that they can harvest bigger awards.

Recently I had three cases where $600,000, $300,000, and $100,000 were presented as an initial demand. Pain and suffering was the biggest portion of those demands. I did not hear any systematic explanation why the insurance companies should pay that kind of money or why the client deserved that amount. Often, the initial demand is for plaintiff’s side to test the defense. Because there are no reasonable criteria to help parties assess the scope and the intensity of the emotional distress experienced, the value of pain and suffering is driven by negotiation. Comparing similar cases can help. Yet it becomes abundantly clear that the skills attorneys like to utilize, such as reasoning, analysis, or argumentation are not easily applicable in these instances. Very often it comes down to persuasion through presentation.

Here’s an example to show the volatility of emotional distress. Imagine a young woman. It can be your daughter, spouse, or someone you have worked with for the last three years. She believes she is quite unattractive because of her nose. Every day she looks at herself in the mirror and gets depressed. She becomes more and more self-conscious about her appearance. Her self-confidence and esteem go down as her subjective pain increases. You personally believe that your spouse or daughter looks good. You try to console her the best you can, to no avail. “Honey there is nothing wrong with your nose, you look wonderful.” And the answer is always the same. “Please don’t talk to me about this. You don’t understand.”

Now consider the case where the injured party becomes disfigured and consequently falls into deep despair. The permanence of the injury, remedial measures, which could help alleviate at least some of distress, and the cost of future care will be considered. The visibility of the injury, stigma associated with that injury, and how others might react to it will be assessed, as well as the measures the party undertook to remedy the situation on his or her own. How the person copes and what kind of outlook she or he applies toward the future will also be examined. The cost of mental health services should be incorporated into the compensation scheme. Yet none of these considerations prevent the volatility arising from the evaluation of emotional distress claims. That lack of certitude allows parties and their attorneys to ask for damages which might look excessive.

There is no doubt that the reparation for the injuries is important, because, we as a society, believe that people deserve damages so they can get back on their feet. We also believe that those damages should be equal to the injuries sustained. Important as well is the knowledge of whether the compensations demanded from defendants who are mostly insurance companies, through the legal process are excessive, or we will all end up losing. The bigger the judgments awarded to plaintiffs, the higher the premiums imposed on insurance policy holders.

Here is where mediation process becomes valuable. If the mediator keeps in mind the bigger picture and at the same time is receptive to the individual stories, he or she can skillfully perform a balancing act between the interests of the individuals injured and the common interests of the large number of policy holders. Under those circumstances, everybody benefits.


Milan Slama

Milan Slama is a practicing mediator and arbitrator in the Los Angeles area. He is a co-founder and the Board member of VBMC (Valley Bar Mediation Center). Currently he is a contractor for Los Angeles County and he also mediates for Chilren's Court.He has been associated with the LA Superior… MORE >

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