A few years ago I was listening to a colleague who had just finished his first mediation involving an insurance carrier in a personal injury case. My colleague was very frustrated and, quite frankly, angry with the obstacles he faced. Though I had experienced similar difficulties, over the following few years I paid very close attention to the dynamics of those mediations not only for the purpose of trying to get cases settled but to educate myself as to the best way to resolve those difficult cases. In my experience it remains true, however, that small damages cases (i.e., auto accident personal injury cases or slip/trip and fall cases) sometimes remain exquisitely difficult to settle in mediation. Nonetheless, I have also discovered that with a little thought and tenacity, a mediator can be quite successful with these cases.
The economist Joseph Stiglitz has said, “Perceptions of unfairness affect behavior.” That statement says as much about the mediation process as any I can conjure. More on that, later.
I think at the outset when we are engaged to mediate a small personal injury case, for example, we have to keep very clearly in mind that not even the most resistant insurance carrier is going to want to spend money to hire a mediator on a case they do not want to settle. Therefore, we should walk into our initial mediation session with the idea that the case will settle. Is very important that we be tenacious with that idea in our endeavor to try to find a route to resolution.
The same goes for plaintiffs and their attorneys. In my humble experience, most of the time plaintiffs and/or plaintiffs’ attorneys seek the assistance of a mediator when their own efforts toward settlement have been unsuccessful. That could be for a number of reasons but it is not unusual that the attorney might need assistance with client control and reality checking. As a neutral, both for the defense as well as for the plaintiff, it is often extremely helpful and effective to offer the mediator’s view of what might be. Yes, I am aware that the mantra of mediation trainers and authors is that the only “right” way to mediate is to facilitate. However, an effective mediator has to be well armed with the ability to move quickly in whatever direction each particular case needs to come to resolution. I am finding in an ever increasing number of cases counsel on both sides look to mediators to help them evaluate their litigation chances if not the value of the case. Risky? Of course. Is there a chance we may alienate one side or the other? Certainly, if we do not approach the situation with wisdom.
There is no question that in the ideal situation we should be facilitators and gentle reality-checkers. However, I have heard the complaint that in doing so we sometimes are viewed as little more than message carriers. We have to be able to strike a good balance and to be effective in a variety of circumstances.
Now, going forward with my premise that the defense is engaged in mediation because they do want to settle the case, and that the plaintiff is there because help is needed to move the case to resolution, let’s go back to the perception of fairness. What I have perceived in most of this type of mediation I have conducted is that notwithstanding the good efforts of plaintiff’s counsel, the plaintiff may not understand why the defense has evaluated the case in the manner it has. In an even greater number of cases, plaintiffs seem to have a terrible misunderstanding of how much it will cost just to get them to where they want to be with the settlement (WATNA). In my view a large part of our responsibility to the participants in mediation is to be “plain language” communicators for the benefit of the laypersons involved. Once the plaintiff understands many of the concepts that lawyers take for granted, a light seems to come on in their eyes and settlement follows fairly quickly. By being an understanding, empathetic and clearly articulate confidant for the plaintiff, many times they view the exchanges with the mediator as their path to a fair resolution. What is more, if the mediator makes it absolutely clear that s/he will be the last person to leave the session, s/he will communicate to the demanding plaintiff and the recalcitrant insurance adjuster that the mediator is willing to work very hard to preserve the integrity and fairness of the process. Just as social scientists posit about prejudices and biases, people who feel they are being treated unfairly tend not to feel so when they actually understand all they need to know about their particular situation. This is a very important approach for a mediator conducting this type of mediations.
Frequently the representative of the insurance carrier has had absolutely no contact with the plaintiff or a truly objective view of the plaintiff by the time the mediation comes along. Certainly, defense counsel generally do journeymen’s jobs of describing and assessing the plaintiff in their various reports. However, the mediator has to understand that human nature makes demands upon all of us, many of whom are trial lawyers, including having us view different circumstances through different-colored lenses. In a recent personal injury mediation after the claims representative had an opportunity to become more intimately involved in the nuts and bolts of the case instead of simply doing an economic analysis, he was surprised that the person in the other room was much different than had been reported. Thus, the same approach taken with the defense in communicating the realities of the opposition without necessarily being a booster for their particular position can lead to a successful resolution and a greater impression of fairness on both sides.
There are no secrets; there are no hidden agenda. All mediators who work on these types of cases need to keep in mind the basics we are all taught in mediation training. Listen; Communicate; Empathize; and, by all means, remain neutral and preserve the fairness of the process. With this approach we cannot help but be successful.