The Problem of Uncertainty
When I began my legal career in the late 80’s most of the jurisdictions in Georgia were considered to be conservative. In other words, they were places where it was difficult for a plaintiff to obtain a significant personal injury verdict. This reality ran counter to the interests of justice but did provide predictability, which in turn made it easier for attorneys to settle cases. Not surprisingly, there was little need for mediation in those days.
As we enter a new decade, the legal landscape in Georgia and around the southeast has changed dramatically. It seems that each week record verdicts are being returned in counties that a few short years ago were places where plaintiffs attorneys were reluctant to file cases. There are many theories as to why this has occurred. The plaintiff’s bar points to a low settlement offer, which makes trial inevitable, and the defense bar blames the rules of evidence that allow plaintiffs to introduce large medical bills. I suspect that, as with all things, there is truth on both sides. While we may never know why juries are now awarding more money, there is no question that this is occurring. The result of this uncertainty with verdicts has made it more difficult for both sides to value cases. One byproduct of this uncertainty has been an increase in the number of cases being mediated. As the owner of the largest mediation firm in Georgia, I welcome this development. However, if ADR providers are to meet this growing need effectively, we must provide the level of service that both sides deserve. This includes an accurate understanding of how uncertainty impacts parties.
For corporations and insurance companies, the evaluation of claims is a cost-benefit analysis. Unpredictability as to jury verdicts makes this task harder for corporations, but in the end, it comes down to a nonemotional economic analysis. Not so for plaintiffs who have sustained injuries that, in many cases, have been life-changing.
I’ve heard it said that more people are afraid of public speaking than of dying. This would mean that at a funeral, most would rather be the deceased than give the eulogy. Imagine having to speak publicly about something intensely personal, and that has dramatically impacted your life. Now imagine that after your remarks, your audience could choose to reject you. Early in my career, I tried a case for a woman who tripped and fell, injuring her shoulder. The trial focused exclusively on liability as there was no issue as to damages. In the end, the jury found in favor of the property owner. When the verdict was read, my client dissolved into tears. She looked at the jury and asked, ‘How could you?!’
As we walked to her car, she said that she had been humiliated and she wondered why the jury hadn’t believed her. I tried to explain that the verdict had nothing to with whether the jury believed her. The facts were largely undisputed. The jury determined that the property owner wasn’t aware of the broken tile that caused the fall. Therefore, they weren’t liable for her injuries. To quote The Godfather, ‘It’s not personal, it’s just business.’
It took that trial to make me realize that for most plaintiffs, a jury trial is an intensely personal experience, and a jury’s rejection can be devastating. Indeed, I suspect that the uncertainty of trial is the reason most plaintiffs choose to settle their cases. This reality can create a huge power disparity between defendants and plaintiffs. Defendants can use a plaintiff’s fear to persuade them to accept a low settlement offer. Of course, a good plaintiff’s attorney can shield his client from this pressure and prevent them from making an unwise decision. However, I believe a neutral should play a significant role in reducing a plaintiff’s anxiety and helping them make an informed decision.
Mediation, if properly conducted, is a process whereby the parties are allowed a safe space to communicate and to be heard. In my experience, a plaintiff’s fears and anxieties are significantly reduced when they are afforded a genuine opportunity to explain to the defendant how the plaintiff’s life has been impacted. Ideally, the defendant can express understanding and, if they can do so honestly, regret that the plaintiff has had to go through this trial. Mediation provides the plaintiff something that no trial can – the opportunity to be affirmed by the neutral, the process, and the other party. This evens the power discrepancy between the parties and allows both sides to reach a meaningful resolution of their dispute.
ABOUT THE AUTHOR
John Miles, Esq. is the CEO of Miles Mediation & Arbitration. In addition to his executive duties, he mediates high value and complex matters on request at a per diem rate. He is in charge of neutral training and development at Miles.