Mediation Vignette: Lessons In Perspective From The Bridge Of The Enterprise

“‘We’ve sustained damage, but we are still able to maneuver.’ Spock to Captain Kirk.”

I don’t get it, she said, pointing to the little sign on the wall in the kitchen of my office.

Well, I said, not much really to get. Everybody that comes in here has sustained some kind of damage and yet everybody has walked out; well, except one.

What about that one?

He went out on a stretcher, but I’m not sure he wasn’t just trying to get a continuance of the upcoming trial.

She looked at the sign again. Don’t you think it might appear that you are trivializing people’s problems?

I hope not. It’s just to remind folks that most people get through even really bad times- and that everybody has bad times now and then.

Well, she said, my grandfather isn’t going to walk out of here. I think you should take the sign down.

That was just one of the interesting things Kelly said during the ten hour mediation. She was the granddaughter of the subject of this mediation, George Harlan Baker. Mr. Baker, born in 1917 in Harlan County, Kentucky, moved to Jennings County in Indiana when he was eighteen and started pulling together an acre here and twenty acres there until by the time he entered the Woodside Manor Nursing Home in 2002, he had collected and farmed some 600 acres in southern Indiana, raising corn, soy beans and keeping a little live stock now and then. He and his wife Katherine, who died in 1990, had two children; a son, Harold and daughter Nancy. Only Nancy was married and she had one daughter, Kelly.

George Harlan Baker died in the nursing home and the attorney for his estate had filed a negligence action, claiming that Mr. Baker had received substandard care and had to suffer through two or three months of serious ulcers and injuries from falls that he should not have had to endure. Harold, the son, and Nancy and Kelly, daughter and granddaughter were present at the mediation representing the estate and family of Mr. Baker. The plaintiff’s lawyer’s presentation at the beginning of the mediation focused heavily on Mr. Baker’s background and history and particularly, on his service during World War ll. Private Baker had landed at Normandy, seven days after D-Day and was involved in some of the heaviest fighting in Europe, He was wounded, received the Purple Heart and several other service medals and returned home to Indiana after the war to spend his life; farming, fishing, repairing any type of vehicle that had moving parts and generally just being part of the quickly disappearing “greatest” generation.

All the war time photographs and medals were spread out on the conference table for the attorneys and representatives of the nursing home to view. The attorney for the estate went through the war service in detail and then described the years of fourteen, fifteen hour days that Mr. Baker put in making a living from the farming. The children, Harold and Nancy stared, almost ferociously, across the table at the nursing home folks. Here was a man, said the estate’s lawyer that served his country, was wounded guaranteeing the freedoms we all enjoy, and what happens? He spends the last few months of his life in severe and constant pain, undergoing treatments and indignities that he should never have had to endure.

Kelly listened to it all carefully, appearing to hear some of the stories and history for the first time. It did not appear that she had been aware of the effort and sacrifices that her grandparents had to make to try to create some greater opportunities for their children.

The discussions went back and forth for several hours and late in the afternoon, Kelly and I ended up together in the kitchen during a break.

Do you like what you do, she asked?

Yes, I really do.

But don’t you see people at their worst all the time and you are always dealing with dead people or people that have been hurt?

No, not really, I said. I often get to see people at their best. Like your mother and uncle. They are trying to work through this and figure out what to do. Trying to do what’s right.

Uncle Harold just wants a trial, she said. He wants to expose what happened to his dad and what those folks did to him. He and Mom can’t get over the amount of suffering that he had to go through.

What do you think? I asked.

About what?

About what should happen in this law suit? Should it be settled or not? Which would be better for your uncle, your mother, for you; to settle or go to trial?

Then she said something that always surprises even though it’s often heard; I don’t know, she said, I never thought about it like that; either or. I guess I just thought about it like a law suit.

Like a law suit?

Yes, it’s clear that the nursing home screwed up and they should have to pay for it. He sure went through a lot.

When? I asked.

When what?

When did your grandfather go through a lot?

The others came back before she could answer and the settlement discussions continued. We eventually reached the point where the family had to decide if they were going to accept what appeared to be the best settlement option available. After some private conversations and some with me, they decided to settle.

During the final conversations, Kelly entered the discussions for the first time and reminded her mother and uncle what Mr. Baker had gone through in his long and productive life and wondered out loud for them how he might have compared the last month or two in the nursing home to all of what he had been through.

As Kelly left, she told me she thought I should still take that one sign down; but try to find one, she said, that sort of says the same thing in a better way.

Names, sequences and other details have been altered or changed when necessary to perserve confidentiality.

                       

John R. Van Winkle

John R Van Winkle is a full-time mediator from Indianapolis Indiana. He is a former Chair of the American Bar Association’s Section of Dispute Resolution and the author of “Mediation; A Path Back for the Lost Lawyer” MORE >