A New Day in Court
A New Day in Court, John Miles first book on mediation, was published in 2012. An insider’s look into the process, Miles recently offered insights learned while researching for the book – as well as why it would benefit all parties involved in dispute resolution.
Why did you write the book? I wanted to learn why people, particularly plaintiffs, decided to settle the case or decided to go to trial. I suspected that many times, the reason didn’t necessarily involve money.
What did you do as research? From experience I identified four motivators: fear, desire for justice, anger and money.
I designed four questions, one for each motivator. I asked if participants would care to answer the questionnaire before a mediation began. The responses to the questions were: Strongly agree, Agree, Neither agree or disagree, Disagree and Strongly disagree.
The questions were designed so it wasn’t obvious what answer I was looking for – or at least I hoped it wasn’t obvious. We had a company that does market research for small businesses help us.
How many people did you survey? We surveyed about 400 people over a year. Of course, not everyone chose to participate.
Who answered these questions? Everyone: the plaintiff’s attorney, the defense attorney, the insurance adjuster and the plaintiff. I tallied the responses and kept the percentages so that I would know who was responding and how for each motivator. It was the plaintiff’s responses, I found most interesting.
Were there questions after the mediation? Yes. But only the plaintiff got questions after the mediation. I wanted to see if whether they settled or didn’t settle the case changed their motivator.
What did you learn? Most plaintiffs were motivated by things other than money — to pursue the case in the first place, and that motivator had to be addressed if they were going to settle. Before I wrote the book, I assumed everything was about money. In mediations, I intentionally tried to keep the plaintiff’s focus off emotional aspects of their case and onto dollars so they could make a smart economic decision. After writing the book, I learned that the real value of mediation to most plaintiffs was the opposite. They need to process and address emotional aspects of their case.
To illustrate this point, I share in the opening caucus how I never saw my parents argue – ever. Then I got married to Jamie and we would have disagreements. I thought that meant a bad marriage. I either stopped the argument by fleeing or quickly agreed so the disagreement would end. But over the years, Jamie helped me to see when I did that, I wasn’t showing respect to the marriage. I was saying the communication process wasn’t valuable. I’ve learned that communication can be emotional. Sometimes it is in anger. Sometimes it’s messy but that doesn’t mean it’s not necessary.
What has been your response to the book? Now I help parties recognize the motivator and then address that motivator so we are more likely to settle the case.
I remember a case where a young woman injured her back. It didn’t appear to be that serious of a case. The insurance company had offered what I thought was a good money. But as the mediation progressed, she wasn’t moving on the numbers and her attorney couldn’t seem to make her make move downward.
When I would come into the room with the plaintiff and her lawyer, she was very tightlipped. She didn’t want to talk and her attorney had not let her speak in the opening. I noticed she had a folded-up piece of paper in her hand and she held on to it tightly. I asked her what it was. She said, “It is just some things I wrote down but it’s probably stupid.” I asked her attorney if she could show it to me. The woman said I could read it. It was the most beautiful expression of what this had been like for her. She had just had her baby and it was very difficult to hold her baby and take care of her baby because of the back pain. She said, “That will be a year of my life that I’ll never get back. And I worry about my inability to hold and be with my child.”
That was really what the case was all about. Her motivator was not money; her motivator was anger at what had been taken from her.
So I asked if it would be okay to have the insurance adjuster, who happened to be a women, come back in (parties usually don’t get back together after the opening). I asked the adjuster not to say anything but to let the plaintiff read this to her. After the plaintiff read it the insurance adjuster said, “I can understand how this must have been very difficult for you. I’m sorry.” Then she left. We settled the case about a half hour later for pretty close to what the insurance company had offered. That’s a classic illustration on being able to listen and identify the motivator. Before I wrote the book, I would have thought this woman was just difficult. We were not going to settle this case; I was going to have to declare an impasse.
Why should someone buy A New Day in Court? It’s awesome and has lots of cool graphics and pictures.
Seriously, mediation is a very new thing. It’s an area of practice that’s only about 30 years old and constantly evolving. Over the last 10 years, the bar has started to embrace it more. A book with practical insights benefits anyone who chooses to or is being forced to mediate.
Was there anything on the Defense side that surprised you? Insurance adjusters are almost always motivated by justice (as they define it). They feel as guardians of the insurance money so that people who exaggerate injuries or bring fraudulent claims should not profit unjustly. Only those truly injured should receive compensation. They have a very high sense that their job is meaningful and important. Which I think would surprise most plaintiff attorneys. They probably think the insurance company is trying to pinch a penny but that is not their motivation.
Before I wrote the book, I discouraged plaintiffs from speaking in the opening session. Now I encourage it — in fact I invite it – always with plaintiff attorney’s permission. Because for these people, this is their day. It is a big deal.
I will often acknowledge that to the plaintiff in the opening — that probably no one else around the table has a knot in their stomach or maybe didn’t sleep the night before. Or had this date circled on a calendar but the plaintiffs’ did.
At least three times a week when I come into my office building in the morning, I see people sitting on the benches in the lobby and I know exactly who they are. They are people who have gotten there very early because they didn’t know how long it was going to take in traffic. They didn’t know if they should go up to my offices on the 19th floor or whether they should wait there.
Making them comfortable and making them feel that this is their day is critical to having a success mediation. They are the ones that will be most impacted – the plaintiffs. We are giving them a forum to express themselves.
To purchase John’s book or to learn more, please visit: http://www.amazon.com/A-New-Day-In-Court-ebook/dp/B008BM3IVW