Why Should I Care?

The heart has its reasons which reason does not understand.
Blaise Pascal (1623-1662)

The question is purely rhetorical. The speaker does not expect nor want a response — and it represents the bane of some mediations. Almost always spoken by the claimant, it can frustrate his/her counsel, the opposing party and the mediator. (While a respondent may be of a similar state of mind, rarely does it frustrate — indeed, it sometimes encourages — a dispute resolution.)

The devil-may-care attitude comes in various forms. Occasionally, it is the not unnatural byproduct of a much greater stress and anxiety than that involved in the mediation at hand. A recent death in the family was just such an event that this mediator had to deal with in a recent mediation.

Unrelated to the claim in dispute, the claimant had died as a result of cancer a few years after his accident and only a year or two before the mediation, and the widow appeared in his behalf.

(I realize such a tragedy and its emotional overlay exist in every wrongful death claim, but in those cases the state of mind of the decedent’s representative, usually a surviving spouse or child, is an integral part of the claim for compensation, also giving rise either to a positive search for justice or, sometimes, to a desire, albeit counterproductive, for retaliation against the tortfeasor. Such an attitude also may be a reflection of a claimant’s wealth that makes the outcome of a relatively minor claim inconsequential. Or it may mask a contrary impulse, i.e., a desire to engage in the “excitement” of litigation and a trial, maybe even to achieve a stardom never before enjoyed by the claimant.)

In my case, during the course of the joint meeting and the early caucuses, it quickly became clear that the widow could not or would not take settlement discussions seriously. Her attitude became evident in an impassioned statement: “I’ve just lost my husband and am caring for three children, and I should care about whether I win or lose in court?”

I know, I know. Just a ploy to kick up the negotiation? Maybe. But it did raise a serious question of perspective. How could she take any of this in the same serious vein as someone not carrying the burden of such an unrelated and untimely tragedy?

So, as a mediator, what do we do about it? How do we keep the proceeding on track? Following the conclusion of this mediation, which ended in an impasse, I put a lot of thought to these questions. Candidly, I wish I had thought more about them at the time.

Without knowing for certain whether the don’t-care reaction by claimant is a serious one or simply a negotiating device, in either case it has to be put to rest and attention refocused on the current objective, i.e., to resolve the dispute, not just for the satisfaction of the claimant but also for both parties and for the judicial system itself. Tragedies occur, ulterior motives are tempting, and boundless egos often run amok. No matter what the distraction, all parties to a dispute should be reminded of the responsibility they have to the court and to the judicial system itself. No easy task for the mediator, who must convey such wisdom with great circumspection and obvious regard to the grief (and, as the case may be, the ego) of the claimant.

The object, of course, is not to dwell on the subject, nor allow the claimant to dwell on it, yet redirect the proceeding to its ultimate mission, as directed by the court in a mandated mediation, to either settle the matter or lay serious groundwork for later pretrial resolution.

Emotional issues and ulterior objectives can be vexatious to the extreme, but they must be addressed and, if possible, set aside for the duration of the mediation. Good luck, you say. Yep, mediators often need a measure of that, too.

                       

Edward P. Ahrens

Ed Ahrens has been a member of the Florida Bar for over 43 years. He is a certified state and federal court mediator in Tampa, Florida. He is also a freelance writer and former president of National Writers Association, South Florida Chapter. He is the author of the popular book,… MORE >