The Desire for Justice

By John Miles

(excerpt from the white paper, “Successfully Presenting Your Case in Mediation and Arbitration”)

Credit: Wesley VanDinter/iStockphoto.com.

Credit: Wesley VanDinter

“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.  braveheartHe 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 every day they’d gained to be back on this battlefield.  Wouldn’t they trade every day 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 in 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.