The Three Realities of Mediation
By Wayne Wilson, Esq.
The mediation process begins with the understanding that the parties involved come into the game with totally separate needs, realities and goals. While it is not necessary that anyone accept or “buy-in” to what the other side expects, believes, or desires, it remains an important part of the process to understand and factor them into the equation. Indeed, it is at the mediation that the parties are provided the opportunity, probably for the first time, to gain an appreciation of the thought process of the other party. This is the only moment during the litigation process in which the parties can sit across the table from each other and express their feelings, opinions, and beliefs.
The Plaintiff’s Reality
So just what does the plaintiff bring to the party in this endeavor? What are his issues which have to be examined or explored so that resolution of the claim can be accomplished? The defense knows and understands its issues, but what of the other half of the settlement equation.
Most plaintiffs have a lack of understanding, or at best a minimal understanding, of the legal process. At mediation they get a taste of reality as it exists in the context of litigation.
As much as the representative for the insurer/insured may believe that he has all of the information and facts at his disposal through the investigation or discovery process necessary to evaluate the case, the fact of the matter remains that the plaintiff is the only individual at the mediation who knows all of the facts regarding the incident and injuries and damages. He knows everything about his life and what effect the accident has had. He is aware of his medical history leading up to the time of the accident. What was experienced in the collision. What pain he has endured as result of the accident. How it has affected his job and income. He is the only person experiencing the fear of an unknown future. He is living this daily. That really makes the plaintiff the “expert” as to this claim. He has the right to say “I know everything about me, I know everything about the accident, I know how much I hurt, I know this is not going to go away, so I deserve and have the right to be compensated in the amount of “$X.”
That is his reality. That is the basis for his opinion as to the value of the case.
The Defendant’s Reality
The defendant/insurer/defense counsel comes to the mediation with an evaluation of the case based upon information and documentation derived from their investigation and the discovery process. The defense lives, basically, in a black and white world in their attempts at evaluating a case. And it is the job of the mediator to explain this to the plaintiff in such a way as to remove animosity or ill-will as a factor in the negotiations. Anything and everything that transpires during the mediation, from the defense perspective, is a “business decision.” But the business decision does not exclude, but rather incorporates, an understanding of the needs of the plaintiff.
The fact that this is a “business decision” does not preclude an effort by counsel and/or the claims representative for the defendant to foster a positive environment at the mediation. The plaintiff is nervous, unfamiliar with, and wary of the process. He is in somewhat intimidating surroundings. It is in the best interests of all parties to be friendly and personable with the plaintiff. The goal at mediation is resolution. And this can only be accomplished if the plaintiff is comfortable in the environment and therefore given the opportunity to make an intelligent and informed decision as to the value of his case.
It is not a sign of weakness, but rather an acknowledgment of the plaintiff’s concerns and needs, that you recognize the other party’s loss, hope for a positive future, and appreciate their agreeing to attend the Mediation. You are in a position to heal old wounds for the plaintiff while setting the stage for a favorable resolution for your client of a matter which could prove to be problematic in the future. A “win/win.”
CAUTION: Sincerity works (as it should). Insincerity does not work (as it shouldn’t). If you can’t say it and mean it, don’t say it.
The defense reality is based upon documents (medical records, employment files, photographs, discovery responses, and deposition testimony), history of dealing with and evaluating these types of matters, legal issues, and an understanding and appreciation of the concerns in dealing with the “great unknown,” i.e. the jury. The mediator will have the opportunity to explain to the plaintiff how the attorney for defendant may present this type of information to a jury. Experience dictates that rarely does a plaintiff have occasion to see this side of his case.
The plaintiff will benefit by listening to, considering, and appreciating the “Defense Reality.” Likewise, the Defendant/Insurer must be willing to listen to, understand, consider, and appreciate the “Plaintiff’s Reality.” It doesn’t have to be accepted, but it is a factor in any effort to resolve the case in a fair and amicable fashion. And a combination of these two realities is potentially what a jury will be entertaining while sitting behind closed doors deliberating the case.
Which leads to the third reality.
The Reality of the Courtroom
You can think of these realities as circles of steel that magicians magically attach to each other. Presumably, the circles should all be the same size. But they are not. The circle representing the “Reality of the Courtroom” is bigger, stronger, and heavier. It, by necessity, must be given the greater weight. The plaintiff must understand that as powerful as his reality is, it is not the only one to be considered in arriving at a negotiated settlement. Conversely, the Defendant/Insurance Reality is not “controlling” either – a fact that is sometimes difficult for an adjuster or claims handler to fathom. It is for that reason, I caution the plaintiff and the insurance adjuster to heed the thoughts and concerns and opinions of counsel. They have ”been there done that” and know better than anyone what can happen when a matter is placed in the hands of twelve strangers.
A jury is like a twelve-legged spider with each leg seemingly walking in its own direction without regard for the other eleven. It is amazing that such a thing can ever get anywhere. The plaintiff must be concerned as to whether this “group” can ever come together and reach a decision in his favor. The inherent difficulty any plaintiff’s attorney faces in successfully convincing twelve people that his client is deserving of a verdict is hard to comprehend. However, the defendant /insurer must be aware that juries do not deal with these issues day after day after day, and, therefore, are not likely to become as entrenched in their positions as claim representatives who see this every day. A very experienced and insightful claims rep who I worked closely with many years ago put it best when, after I explained to him in detail my thorough and “well-thought-out” defense and plan of attack for trial stated, ”Wayne, you have done a great job in preparing for trial and everything you say is right. And we are still going to lose.” The case settled.
The 4 Settlement Motivators
At Miles Mediation, we have conducted a survey of plaintiffs, plaintiff attorneys, defense attorneys, and claims professionals to determine what motivated them to settle. The four primary motivators in settling a case are fear, justice, anger and money. Money is usually considered the major factor of all concerned. No surprise there. Therefore, both sides have mirror-image goals in that respect.
The fear factor, i.e. a jury of strangers making a decision that may or may not go as you think appropriate, rests with all participants at mediation. Anger and the desire for justice may be the “X” factors that, if properly addressed, may be the final building blocks of a successful mediation. The defense team must acknowledge that the plaintiff is the only participant in the proceeding that may legitimately have a right to be angered in that 1) he has been injured due to the actions of another, and 2) he is having to live through a very difficult experience, i.e. litigation, to “simply get what he is entitled to.” For the plaintiff motivated by anger or the need for justice, the process can be as important as the settlement amount. They have a story to tell and a need to be heard, understood, and appreciated. If their issues and concerns are legitimate, the defense owes them that right. And by affording them that right, the potential for a successful resolution of the case for all parties is greatly enhanced.
*On March 18, Team Leader Wayne Wilson presented at Houston Smith’s seminar “Winning Settlement Strategies” at the State Bar of Georgia. Wayne’s paper, The Mediation Process- Strategies and Techniques for Success,” includes a section on the realities that both parties face during a mediation.