Communication drives mediation. Both the plaintiff and the defendant need to speak and be heard. Resolution requires that both parties use positive language.
Research has demonstrated that positive language enhances the mediation process. Conversely, negative language hinders mediation’s effectiveness. Negative language is particularly harmful to mediation because negotiation and mediation are essentially a process of joint decision making. The participant using negative language affects the emotions and decision making of the other parties. Negative language reduces the
other side’s willingness to cooperate and may even encourage the opposition to terminate the mediation just to avoid the negative energy. Defense attorneys and insurance adjusters who use positive language are more likely to bring a mediation to a successful conclusion, particularly when dealing with a plaintiff who is motivated by anger or justice. The defense can benefit from positive language even if the mediation does not reach a successful conclusion.
A wise adjuster — one who understands the worth of staying positive throughout the session—once told me that even if you do not settle a case at mediation, you want to learn
the plaintiff’s bottom line: the lowest amount she would accept rather than risk trial. Knowledge of the plaintiff’s bottom line strengthens the insurance company’s position. This is good
advice, as many cases settle after the conclusion of the mediation. This approach is not to be confused with agreeing or acquiescing to the plaintiff’s position. While positive language
might not initially appear to be a fit with defense attorneys or adjusters, we have found that when understood and used correctly, it becomes one of the most effective weapons in the defense’s arsenal. Positive language is a way to advance a position or argue a point in an
effective manner. It really is possible to disagree without being disagreeable.
Some on the defense side avoid positive language for fear of sending the wrong message to the plaintiff.
They don’t want the plaintiff to conclude that the defense agrees with the plaintiff. Defense attorneys and adjusters fear that a positive approach could lead plaintiffs to wrongly conclude that the defense is prepared to pay more to settle the claim than the
defendant is actually prepared to pay. As one defense attorney told me, “Better to under-promise and over-deliver.” The insurance industry often assumes the position of lowering
plaintiff’s monetary expectations, known as “bringing them back to earth.” This approach is not surprising, for defense attorneys given that these attorneys have been trained as litigators. They are most comfortable in the courtroom. Trials are adversarial. Attorneys
who want to win advance competing points of view. Winning is about defeating the opponent and disclosing vulnerability, not about expressing empathy. If a plaintiff and his attorney won’t agree to accept a reasonable sum to resolve a claim, trial is the insurance company’s
best option, and the wise insurance defense attorney tries each case in an efficient manner.
However, the time and cost factors of trying a case are averse to the interest of most insurance companies. The insurance defense attorney, desiring the best result for her client, uses mediation as the method of obtaining the best and most cost-effective resolution.
We again affirm that plaintiffs find process to be as important as outcome. Positive language enhances process. While positive language alone will not likely resolve a case at mediation, our research has found that defense attorneys and adjusters who use positive language
enjoy more success at mediation. Following are some examples of positive and negative communications that we have noted at Miles Mediation.
One of the most effective communication techniques is expressing empathy. Plaintiffs motivated by anger or justice have suffered a loss. They feel, often rightly so, that they do not deserve what happened to them. They need to have their suffering acknowledged. They know that the defendant can’t change what happened and that, in the end, their case will be resolved for a sum of money. Regardless of who is legally responsible, these plaintiffs need the defendant to understand their circumstances. I experienced this during the adoption of my son Joe. After the baby arrived, things got difficult. Only when the baby was born did we learn of a potentially dangerous condition in the medical history. This issue could have a significant impact on the baby’s future. We were faced with a decision: Did we want this baby. My wife and I were angry, frustrated, and confused. Why hadn’t this condition been identified earlier? What were the chances the baby’s health would be affected? What were we supposed to do? Should we take the baby home or begin the process all over again? My wife and I understood the situation for what it was and that we were going to proceed with the adoption. Nevertheless, there was great value for us in having our situation acknowledged and hearing that what was happening to us wasn’t fair. Expressing empathy is not the same as accepting legal responsibility.
As was the case for us during the adoption process, the expression can be as simple as someone confirming that what happened was unfair. Empathy is any expression that conveys understanding of and identification with another’s situation. It can often be effectively expressed by saying, “I’m sorry that you have had to go through this.” At Miles Mediation we have noted the power of an adjuster’s expression of empathy. At best it completely changes the tone of the mediation and sets the stage for resolution. At worst it causes the plaintiff to brush off the attempt. However, we have never seen an expression of empathy hinder the negotiations. Conversely, we have often witnessed the negative impact resulting from the failure to express empathy at mediation.
I remember a mediation during which I joined the lone plaintiff in the caucus room following the opening session. She turned to me and said, “They missed another opportunity to
say they were sorry.” The case didn’t settle.
It is a rare case in which the defense cannot take responsibility for some aspect of the situation. If negligence is fairly clear—or the defense plans to admit liability at trial—the defense should acknowledge the insured’s responsibility in causing the accident. In the same way, if the real issue regards negligence as opposed to the plaintiff’s injuries, accept responsibility
for the injuries but tell the plaintiff you don’t accept that your client was negligent. Accepting responsibility has a dual positive effect. First, it focuses the issues to be discussed during the mediation. Second, it makes the defense seem reasonable, thus encouraging the plaintiff to respond in kind. Showing Flexibility Drawing lines in the sand hinders the mediation process.
On occasions when the defense is limited as to the amount it can offer to settle a case, communication is of the utmost importance. Human nature is such that, even if we know we
should accept the offer, most of us will reject an ultimatum. For that reason, telling the plaintiff to “take it or leave it” is a risky strategy. A far better approach is to move safely to a number
just under your ceiling and then signal to the plaintiff that you are about to make your last offer. In conjunction with your offers, explain to the plaintiff that you are basing your moves on your value of the case. Invite the plaintiff to offer evidence or arguments to support his value of the case. As you increase your offer, explain why you disagree with the plaintiff’s position. Occasionally you will want to agree with the plaintiff and make a greater offer in response. Even if the final offer will be the same, a negotiating style that shows flexibility is most likely to be successful. The amount of the offer can also show flexibility. Structured settlements not only allow a plaintiff to realize more money over time, but they also show an appreciation for the
plaintiff’s long-term needs. Structured settlements demonstrate a willingness to be creative in finding a way to resolve the case. While plaintiff attorneys sometimes advise their clients against accepting structured settlements, plaintiffs usually respond positively to an offer of a structure.
You can also show flexibility in the speed with which you can get to settlement. Even when you are inflexible as to the settlement amount, you can guarantee that settlement can be concluded in a matter of days as opposed to weeks. This seemingly small concession can sometimes prove the difference between an impasse and a successful mediation.
It bears repeating that Miles Mediation research has shown process to be as important as the settlement amount for plaintiffs motivated by anger or justice. Needless to say, you
should listen to people who need to express themselves.
Amazingly many defense attorneys and insurance adjusters fail to actively listen to the plaintiff during the opening mediation session. More often than not, the disinterested-
appearing defense attorney or insurance claims adjuster is looking through her file while the plaintiff attorney, or worse, the plaintiff himself is speaking. Some defense teams believe that this tactic exhibits strength. Others are genuinely unaware of the plaintiff’s negative perception of their actions. Whatever the reason, the plaintiff always interprets the defense’s failure to listen as disrespect. Those plaintiffs who have more assertive personalities cross their arms, tighten their jaws, or look at the mediator in disbelief. More passive plaintiffs look down or away, slump in their chairs, and—on a few occasions—begin to cry. Reengaging an offended plaintiff is extremely difficult for a mediator. Our research proves that disrespected plaintiffs
doom many potentially successful mediations.
Being prepared is a positive communication technique that closely parallels showing respect. Preparedness is a technique that is of equal importance to plaintiff attorneys, defense attorneys, and insurance claims adjusters. The plaintiff considers his case to be singularly important. He expects professional consideration. An attorney or adjuster who misstates facts or appears unprepared sends the message that the case doesn’t matter and the plaintiff doesn’t matter. The plaintiff is the most nervous participant in a mediation. He has been anticipating this day for weeks. He has been discussing his case with family members and friends who are
sometimes waiting in the outer office to support him. He may have asked them to pray at the hour of the mediation. Imagine his disappointment when other participants are not prepared.
Not unlike the case with the “disrespected” plaintiff, it’s difficult to mediate with a plaintiff who has been made to feel insignificant. The mediator must face the challenge of convincing
the plaintiff to continue with the process before she can even begin to mediate a resolution of the case.
The list of positive communication techniques can bring to the fore many negative communication techniques that hinder mediation: indifference, irresponsibility, inflexibility,
disrespectfulness, and unpreparedness. Miles Mediation has compiled a list of additional negative communication techniques that serve to defeat effective negotiation.
The expression of scorn in and of itself is a negative form of communication. The dictionary defines “scorn” as contempt or disdain. Mediation participants who express scorn can negatively affect the outcome in one of two ways: they can convey scorn for the process or scorn for the plaintiff. The expression of scorn for the process manifests itself early in the mediation, often at the time of the initial offer. “They’re not being serious.” “This is a complete waste of time.” Making such pronouncements early in the process is counter-productive. Mediation participants need to understand that mediation is a process, often requiring several moves in order to determine the final resolution. Furthermore, they need to understand the importance of negative statements, especially if the plaintiff attorney makes these pronouncements in the presence of the plaintiff. Most plaintiff attorneys do not realize that scornful comments can affect the process and their clients. At the conclusion of the mediation we find that many of these attorneys are genuinely confused as to why the mediation
failed. They simply are not aware of the effect of their negative speech.
Additionally, defense attorneys and insurance adjusters need to guard against expressing scorn toward the plaintiff. Lacking empathy for the plaintiff is one thing, but scorning him is yet another. Few on the defense side actually attack plaintiffs with accusations such as, “You are a liar” or “You are a fraud.” Nonetheless, many use language that a plaintiff can interpret as meaning the same thing. The Miles team of mediators believes that most defense attorneys and insurance claims adjusters are not aware of how their opening-session comments impact the mediation process. Following are legitimate legal and factual arguments as
presented by the defense and perceived by the plaintiff: When a defense attorney says, “X-rays taken in the emergency room following the accident show that you [insert plaintiff’s name] had degenerative changes that predated the accident,” she is saying that the plaintiff’s back injury was not caused by the incident that forms the basis of the lawsuit. This is a perfectly legitimate position. What the plaintiff hears is, “You [insert plaintiff’s name] were not injured in this accident. You [insert plaintiff’s name] are making the whole thing up.” When a defense attorney says, “A person doesn’t typically tear his meniscus in this type of automobile accident,” he is
rightly pointing out that most knee injuries of this type are caused by a twisting motion, not by blunt trauma. What the plaintiff hears is, “You are a fraud. You couldn’t
have injured your knee in this automobile accident.” In neither incident did the defense attorney probably intend to show scorn toward the plaintiff. Unintentional or not, the plaintiff’s initial reaction to the defense attorney can be anger. To negate a plaintiff’s anger, Miles Mediation advises the defense to follow a four-point procedure:
1. Express empathy for the plaintiff.
2. Acknowledge that the plaintiff’s injuries are painful.
3. Suggest that a jury might find that the plaintiff’s injuries were not caused by the incident.
4. Acknowledge that a jury may choose to believe the defense or the plaintiff.
This approach has proved to be successful because it
respects the plaintiff while demonstrating the inherent risk of a jury trial.
Not unlike most married couples, my wife and I occasionally argue. More precisely, she argues, and I shut down. Contrary to what my chosen profession might suggest, I do not
like conflict. I want it to go away. My wife, on the other hand, likes to talk things out. She interprets my desire to avoid the argument as my expression of disinterest in her and in our
relationship. In sum, I’m being dismissive. My failure to thoroughly discuss and, if necessary, argue about an issue demonstrates to her that I do not care. I have noticed a similar dynamic at work in mediation. Plaintiffs often conclude that the defense is being dismissive, and a dismissive attitude on the part of the defense has a decidedly negative impact on plaintiffs motivated by anger or justice. Our research has shown that, like the angry spouse, it is better by far to engage the plaintiff who is motivated by anger or justice. Failure to do so won’t necessarily result in sleeping on the couch, but it will result in fewer successful mediations. As we have seen, communication is the nuts and bolts of mediation. An awareness of both positive and negative communication techniques is therefore essential to people who are
conducting the mediation process.
The opening statement has the potential for being a negative communication component of the mediation process. Many defense attorneys choose to give an abbreviated opening
statement. Some tell us that they do not want to anger the plaintiff, thereby hindering the mediation. Others would rather let the mediator deliver the bad news to the plaintiff. Still others want to play their cards close to the vest. Defense attorneys generally do not want to divulge evidence that they could use more effectively at trial. All are valid reasons for giving brief opening statements. This approach, however, makes resolution at mediation less likely, especially when dealing with plaintiffs who are motivated by anger or justice. When the defense attorney engages, he acknowledges that the case is important. At the same time, he begins to educate the plaintiff about the weakness of the case. Up to the point of mediation, the plaintiff has been somewhat insulated from the realities of the negative aspects of her case. While she and her attorney have no doubt discussed some of the negatives of the case, they have spent the majority of their time and effort strategizing as to how they will maximize recovery. The mediation, particularly the opening session, is the first opportunity that the plaintiff has to hear the other side of the story. If there are problems with a plaintiff’s case, the defense attorney should point them out. Some of the most effective defense attorneys utilize PowerPoint presentations that highlight text from medical records and deposition transcripts. This evidence
serves to undermine the plaintiff’s contentions. Our research has found that while the defense’s well-organized, detailed opening statement may evoke an emotional, defensive plaintiff response, an effective mediator can use the defense’s findings to convince a plaintiff
of the vulnerability of his case should he go to trial. More often than not, the mediation process promotes resolution—compromise and a negotiated settlement. Because statistics prove that mediation has become the new day in court, successful defense attorneys are using the mediation process to build lucrative practices. Discovering that it makes good sense to try
your case at mediation, they are spending as much time preparing their opening statements for mediation as they formerly spent detailing their opening statements for trial.