Mediating for the Emotional Plaintiff

By John Miles

A. The Real Motivator

If you have suffered through an hour-long talk on mediation, you might rightly conclude that the speaker had been allotted too much time – by about 50 minutes. There simply are not that many ways to say that the defendant needs to pay more and the plaintiff needs to accept less. So it is that when I was asked to address a convention on the topic of mediation, I decided to try something different.

A few months prior to the speech, I began asking all my mediation participants to fill out surveys. The surveys were designed to identify what motivated individuals to mediate. While the purpose of the surveys was to provide a unique and entertaining topic for my presentation, the findings of those surveys radically changed the way I mediate.

I believed for years that people were motivated to mediate for one reason – money. I was not surprised when the surveys confirmed my supposition that plaintiff attorneys, defense attorneys and insurance claims representatives focus on the bottom line.

I was enlightened when the surveys identified motivators other than money. I learned that plaintiffs are often motivated by such emotions as anger, justice and fear . If a plaintiff is motivated by anger or justice, a mediation which moves quickly toward the bottom line will not be successful. For this individual, process is as important as result. The events that occurred in his lives and led him to the lawsuit were personally significant. If his case were to be resolved at mediation rather than trial, the mediation needed to afford him the opportunity to have his say. And occasionally, the defendant needed to tell the plaintiff that he was sorry.

The surveys invited participants to offer their comments. I was surprised by how often plaintiffs would record comments. And I was even more surprised by how few of their comments related to money. One plaintiff wrote the following on her post mediation survey: “Thank you for your guidance. May God richly bless you and your family.”

The importance of listening was brought home to me years ago by my father. Dad was responsible for the marketing and sales of a company which produced and sold world-wide high-end outdoor and casual metal furniture. Each year the National Retailers Association (Dad’s customers) awarded an Outstanding Manufacturer’s Leadership Award to one of the 50+ manufacturers in the Outdoor and Casual Furniture industry. The award was based on five performance categories – customer service being one of the most important.

Dad’s company won the award five times in the first eight years of the award’s existence – three of those honors came in consecutive years. The reason? His company listened to its customers and apologized for its mistakes. Mistakes were made, some of them whoppers. A furious customer would call and the customer service representative would listen carefully, apologizing when appropriate and ask how the company could best correct the mistake.

This caring, responsive attention almost always had a positive effect on the outcome of the situation, quite often resulting in no adverse action whatsoever. On the contrary, because it listened, the company claimed many lifetime customers whose loyalty, in turn, saw the company through some tough times.

I recently mediated an automobile accident case that could have settled for a modest figure. The judge ordered the case to mediation and told the attorneys that he did not intend to waste two days of his trial calendar on such a small case. He added that the parties were not far apart. The insurance company had made a low, but not unreasonable, offer to the plaintiff attorney’s demand. It was the type of case I had mediated repeatedly during the early years of my career. It needed to be resolved quickly – somewhere between the demand and the offer. The plaintiff needed to be persuaded that he would be better off accepting the insurance company’s offer. Prior to the mediation, the plaintiff’s attorney had told me privately that he was having a hard time with this case. He wanted me to know that I could “lean on his client.”

The typical mediation begins with an opening session. I make a brief statement explaining the process. Following my remarks, the plaintiff’s attorney makes an opening statement. This statement explains the case from the plaintiff’s perspective. The attorney in the automobile accident case explained how the accident occurred. He enumerated his client’s injuries, the amount of the medical bills and the amount of lost wages. It was a brief statement, appropriate to the size of the case. The entire statement lasted less than five minutes.

While the plaintiff’s attorney was speaking, I noticed that the plaintiff was watching the defense lawyer. The defense lawyer was rummaging through his file, seemingly ignoring what the plaintiff’s attorney was saying. When the plaintiff’s attorney had finished his opening remarks, the defense lawyer spoke. He explained that the insurance adjustor was unable to attend today’s mediation but was available by phone. He added that he was confident that the case could be resolved. He was ready to start negotiating.
The openings are followed by caucus sessions where I meet privately with the parties. I met first with the plaintiff and his attorney. Sensing that the plaintiff was frustrated, I invited him to talk about the case. While he spoke about how the back injury had prevented him from working as a cook, his attorney began looking through his file.

“Found it,” said the plaintiff’s attorney. What he found was the letter he wrote to the defense lawyer confirming the insurance company’s last offer of $10,000.

“Lets drop $5000 to $30,000.” Turning to his client he added, “if that’s all right with you?”
“How am I supposed to live on $10,000?” asked the plaintiff.

“I know, I know,” replied the lawyer, “but remember it’s not where the insurance company starts but where they end up that’s important.”

With that I was dismissed from the plaintiff’s room to deliver the new $30,000 offer to the defendant. After three and a half hours of mediation I declared an impasse. The plaintiff refused to accept less than $25,000 to settle his case. The attorneys were frustrated. I explained to the plaintiff that given the facts of his case, $25,000 was on the high side of what he could expect to receive from a jury. The plaintiff, however, could not be persuaded. At the bottom of his survey he wrote:

“Do the facts really matter?”

I suspect the plaintiff’s frustration was not as much with the amount of the offer from the insurance company as it was with the process. For the attorneys the case was about money. For the plaintiff it was about an injury that prevented him from working as a cook in a fast food restaurant. His livelihood had been taken from him and nobody seemed to care. Worse, both his lawyer and the insurance company lawyer appeared indifferent at best and conspiratorial at worst. I imagine that the plaintiff may have felt like everyone else had gotten together and decided what his cause was worth. He just needed to do as he was told.

Would it have made a difference if the plaintiff had been allowed to speak and the attorneys had listened respectfully? Based on the information I gained from the plaintiff’s survey, I know it would have. LISTEN TO THE PLAINTIFF!

I served as a mediator in a case involving the death of an 18 year old boy. As part of his demand package, the plaintiff’s attorney made a DVD of the young man’s mother expressing her feelings about losing her son in such a tragic way. Needless to say, the mother’s testimony was very moving. It was the testimony of the young man’s older brother, however, that demonstrated the importance of allowing people to be heard and the mistake we make when we assume that litigation is about money.

The older brother had not expected to make a statement. He had simply driven his mother to the attorney’s office. As the mother was testifying, the attorney observed the brother. Suspecting that the brother had something he wanted to say, the attorney requested that the brother sit before the camera and speak. Having not prepared a statement, his testimony wandered – remembering his younger brother and the times they shared. When he began to reflect on the events of the night of the accident, he became more somber and emotional.

He was fifteen years older than his little brother. Because there was no father in the home, he assumed the role of teaching his little brother what it meant to be a man. The older was quick to discipline the younger, always in love. The older brother would remind his brother that he’d forever be there for him and would pick him up when fell.

The older brother had a difficult time recognizing his younger brother at the hospital. The young man had been ejected from the car and was comatose, clinging to life. The older brother couldn’t comprehend what was happening. With tears, he recalled saying to his kid brother “I know you’re playing. You need to get up out of that bed.” When the realization finally set in that his brother wasn’t getting up, the older man said, “When you’re ready, you just say so and I will help you. I will be standing right here when you are ready.”

He stood for 26 hours. He refused the repeated request by his mother to go home and get some rest. Eventually he and his mother decided it was time to let his brother go and they said goodbye.

At the conclusion of his testimony as he is wiping his eyes with a tissue, the plaintiff’s attorney can be heard saying, “thank you. I know that wasn’t easy.”

The older brother replies “No, thank you. I needed to get that out.”

Later he explained that he had felt guilty about his brother’s death. He felt he should have been able to prevent the accident. If he had been there that night, this could have been avoided. However, having had the opportunity to express himself he was ready to begin the process of letting his little brother go.

Understandably, his mother was having a harder time letting go. She was unwilling to settle the case, choosing instead to fight for her son, to punish the corporation that allowed a reckless driver to cause this accident. During the mediation the older brother was able to persuade his mother that it was time to put the lawsuit behind them. The case would not have settled without the older brother’s counsel. LISTEN TO THE PLAINTIFF!

Two cases: One could have settled for a modest amount the other settled for a large amount. Both cases featured individuals who needed to be heard.

To think that early in my mediation career, I incorrectly assumed that money was the only thing that mattered to plaintiffs. I fear there are still too many mediation participants who continue to believe that money is the real motivator.

B. The Desire for Justice

“I don’t want another mother to go through what I’ve been through.” A mother whose son had been killed in an automobile accident caused by a drunk driver told me that she did not want her son to have died in vain. She wanted something positive to come from this tragedy.

This mother is an example of the individual motivated by justice. Plaintiffs motivated by justice have a great deal in common with those who are motivated by anger. Their lives have been impacted in a negative way. Something horrible and unexpected happened to them. While the persons motivated by anger want to punish the individual or entity that harmed them, those motivated by justice see what happened to them in a larger context. Those motivated by justice want to find meaning in the tragedy. They want to prevent what happened to them from happening to someone else. Their lawsuit or claim should be a mechanism for change. Plaintiffs motivated in this way want far more than an apology from the defendant. They want the defendant to take concrete steps to ensure that others will not be harmed. They often view themselves in a heroic role defending the rights of the innocent.

This type of person has been portrayed in many films. In the movie Braveheart William Wallace, played by Mel Gibson, leads a small band of men against the English army. While standing on the field of battle, some of Wallace’s men began to lose heart. One man wonders aloud if he should run away – and live. Wallace, on horseback, addresses his faltering men. He acknowledges that if they run, they will live; if they stay and fight, they might die. But he asks if many years later, when they were on their death beds, they wouldn’t trade everyday they’d gained to be back on this battlefield. Wouldn’t they trade everyday they’d gained to be able to tell the enemy that he can take their property, their lives, but he can never take their freedom. They stay; they fight; and they win.

Like William Wallace, the individual motivated by justice will fight for what he believes to be a just cause. Like Wallace, they will not be dissuaded by long odds. These individuals are often energized by the prospect of a tough fight. For them the struggle is often as important as the outcome. Certainly they want to win but they see value in fighting – even if they lose. There is a Theodore Roosevelt quotation hanging in my office that captures the mindset of the person motivated by justice.

It is not the critic who counts, not the man who points out how the strong man stumbled, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena: whose face is marred by the dust and sweat and blood; who strives valiantly; who errs and comes short again and again….who knows the great enthusiasms, the great devotions and spends himself in a worthy cause; who, at best, knows in the end the triumph of high achievement; and who, at the worst if he fails, at least fails while doing greatly, so that his place shall never be with those cold and timid souls who know neither victory or defeat.

Because these individuals often embrace conflict, it is difficult to resolve their cases. Not too long ago, I mediated a case involving a child who drowned at a neighborhood pool. In addition to a monetary demand, the plaintiff (the child’s mother) wanted the Homeowners Association to take steps to ensure the safety of children who used the pool.

In most mediations, the defendant’s insurance carrier attends the mediation on the defendant’s behalf and handles the negotiations. The insurance company can offer the plaintiff money but is powerless to require the defendant to do anything. In most mediations, representatives of the defendant do not attend the mediation.
In this case the plaintiff wanted to talk about the need to prevent injury to other children and the insurance company wanted to talk about money. Understanding that they had different motivators, I interrupted the mediation to place a call to the president of the Homeowners Association. He agreed to sit down with the plaintiff and discuss ways to make the pool safer.

At the conclusion of the phone call, the plaintiff and insurance company were able to agree on a settlement amount. JUSTICE WANTS CHANGE FOR THE BETTER!

In the case of the Homeowners Association, the president has the authority to meet with the plaintiff and make recommendations about safety. Most individuals motivated by justice are negotiating against large corporations. Even if they wanted to, the corporate representatives attending the mediation do not have the authority to change company policy.

The person motivated by justice is nevertheless satisfied knowing that he has been heard by the company. I have sometimes suggested that a plaintiff put his concerns and suggestions in writing and send the letter to the appropriate person in the corporation. As with people motivated by anger, people motivated by justice need to be heard.

C. The Need to Punish

“I need to make sure he doesn’t do it again.”

The “it” referenced by the plaintiff was the defendant’s tendency to drive drunk. His decision to drive drunk had cost this plaintiff the life of her son. She believed it was her responsibility to ensure that another mother didn’t have to experience what she was going through.

Plaintiffs motivated by justice see their case as bigger than themselves. Indeed for many it becomes a cause. This motivator is often found in parents, particularly mothers, whose child has been injured or killed by another’s negligence. A comment left by one mother typifies the attitude of these women.

“In my case, it’s not so much about the money as the fact that the defendant should not be allowed to behave in such a manner as to harm anyone else, especially children.”

Any parent who has experienced the loss of a child due to another’s actions can identify with that mother’s comments. For most parents, the desire for justice is a necessary part of the grieving process. There is a natural tendency for plaintiffs to see the tragedy in a larger context – something positive to come from the tragedy.

A few years ago I was watching the Oprah Winfrey show. The topic was drunk driving. A couple had lost their daughter in an automobile accident caused by a drunk driver. The couple dedicated themselves to strengthening laws against drunk driving. I remember the mother saying that they were trying to ensure that their daughter didn’t die for nothing. I recently witnessed how a grieving mother can motivate a community for good in the wake of a tragic loss.

There is a sticker on the back bumper of my wife’s car that reads, “Don’t Text and Drive! In memory of Caleb D. Sorohan.” Caleb was a Morgan County High School student who was killed in a single car automobile accident which occurred because he was texting while driving. His mother decided her son’s death could make a positive difference in the lives of others. She organized his classmates who responded to the tragedy in two ways. First, they asked people to sign a pledge not to text while driving and to place a bumper sticker on their cars to evidence their commitment. Secondly, they lobbied the state legislature to pass a law making it illegal for teenagers to text while driving. In 2009 as a result of their efforts, the Georgia legislature passed and Governor Purdue signed “Caleb’s Law”.

It is easy to see how a mother could be motivated by justice. Our research revealed that this motivator is also found in plaintiffs who are having a difficult time understanding how their own lives could have changed so completely in an instant – by the inattention of another. It is a natural part of the human condition to want to make sense of the senseless. We need there to be a reason for suffering, particularly when an innocent person is made to suffer due to the actions of a bad actor.

I recall some years ago watching an ABC News special on the assignation of President Kennedy. The report, hosted by Peter Jennings, did a thorough job of demonstrating how Lee Harvey Oswald was the lone assassin of the president. At the conclusion of the broadcast Jennings acknowledged that in spite of the overwhelming evidence to the contrary, many conspiracy theorists would never believe that a lone gunman killed Kennedy. Jennings opined that many won’t want to accept that a man as great as President Kennedy could be killed in such a random and meaningless way by such an insignificant man. Our research reveals that plaintiffs motivated by justice share the need to make sense of or find a greater meaning for a senseless tragedy.

The justice motivator can also be particularly acute in plaintiffs whose personal suffering resulted not from an unavoidable accident, but from the aggravated negligence of another. Plaintiff’s desire for justice often intensifies if the defendant were guilty of more than simple negligence. Surveys completed by plaintiffs in cases where the defendant acted willfully or recklessly always ranked justice as a motivator.

Plaintiffs motivated by justice must allow them an opportunity address the defendant. And the defendant must accept responsibility for his actions. Additionally, the plaintiff must perceive that the defendant will take action to prevent harming others. The surveys revealed that 57% of plaintiffs agreed or highly agreed that they were motivated by justice. As stated previously, this percentage is much higher when the case involves a parent, particularly a mother, whose child has been injured.

If a case is properly mediated, the plaintiff motivated by justice satisfies his/her need for justice and settles the claim for a dollar amount. In the post-mediation survey the percentage of plaintiffs motivated by justice rose to 64.1%. These plaintiffs see that their need for justice has been achieved. I suspect this increased percentage is due to the fact that, upon analyzing the survey results, we changed the way we mediated for the plaintiff motivated by justice.

D. Conclusion

Plaintiffs in punitive damage cases are not primarily motivated by money. Mediation will only be successful if these individuals are provided the opportunity to be heard. More to the point they must believe that the defendant has heard and understood how the defendant’s actions have affected the plaintiff and their family. In addition the plaintiff must believe that the defendant has been made to pay a price and/or that the defendant will not engage in harmful conduct in the future. For these plaintiffs process is often as important as outcome.