Discourage Litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity…
This is a court of law, young man, not a court of justice.
—Oliver Wendell Holmes
The differences between a mediation session and a jury trial are important to know. Four significant things happen at mediation that cannot occur at trial. In a face-to-face, informal setting, the parties have the opportunity to be heard; the parties have the opportunity to interact; the parties have 100 percent focus on the case; and the parties have control over what happens with the case.
When mediation begins, I state to the parties that mediation is a waste of time for people motivated exclusively by fear or money. Mediation might even be risky in the case of a party motivated by fear. A fear-motivated litigant often telegraphs fear to the other side, which serves to harden the opposition’s settlement position.
I recall a mediation in which, during the opening session, the defense attorney said to the plaintiff, “We are going to work hard to settle your case today. I hope we will be successful.”
The plaintiff replied, “Oh, we will be successful. There is no way I’m going to trial!” I suspect that the insurance claims adjuster left that case with money in his pocket. The fearful client’s attorney should negotiate with the opposition outside of his client’s presence and the mediation session.
A party motivated by money needs only to know that she made the best possible deal. This individual does not need a mediation session. She does not need to be heard. What she needs is data. This party wants to see verdict and settlement information. At Miles, we rely on CaseMetrix for this information. The CaseMetrix advantage is that settled cases dominate its database.
While verdicts are interesting, they are not the best measure of the cases’ value. If a case goes to trial, one side probably didn’t want to try the case. Verdicts tend, therefore, to favor one side more than the other. On the other hand, a mediation settlement represents what two parties agreed to in an arm’s-length transaction.
Imagine you want to sell your house. Is it more valuable to know what people in your neighborhood are asking for their houses or what people in your neighborhood are getting for their houses?
If you have a client who is motivated exclusively by money, subscribe to a database like CaseMetrix and provide your client with the information. Then negotiate directly with the opposing side.
The parties motivated to some degree by anger or justice need what only the mediation session can offer. These parties require the opportunity to be heard.
“I want my day in court.” If you ask someone what he means by this statement, he would likely say that he personally wants to tell a jury what happened to him. Our research has proved that while he does have a story to tell, what he really wants is to communicate his story in a natural, conversational way, as opposed to litigating his story in an unnatural way.
Language stands at the center of human affairs—the medium through which we speak and listen as we interact with others. Language is also the medium we use to resolve conflict—from haggling with clerks to arguing politics. Confrontations are a stressful, unavoidable part of life, and we become comfortable with our personal methods of resolution. Few plaintiffs are familiar with resolving disputes in the context of a courtroom, a judge and a jury.
The nature of conflict dictates that plaintiffs are, for the most part, stressed. They find their stress compounded by an unfamiliar, ambiguous procedure. Moreover, the litigation process does not allow for direct confrontation with an opponent. Rather, the injured party, otherwise known as a plaintiff, finds himself represented by attorneys who communicate and battle on his behalf.
While advocates are desirable for some plaintiffs, the plaintiff who is motivated by anger or justice retains the need to confront her opponent. She finds herself every bit as frustrated by the litigation process as she is by the incident that gave rise to her lawsuit.
Mediation offers the only litigation opportunity for open and uninterrupted communication. Mediation allows plaintiffs to communicate with their opponent in a manner most closely resembling their customary and preferred method of conflict resolution.
During the mediation session, the plaintiff can face the one who harmed her. In her own comfort zone, she is able to tell her story.
Our experience has shown that, unfortunately, too few plaintiff attorneys allow their clients to speak during the mediation. They give the following reasons for requiring client silence. Some fear that their client will say something to undermine the case. Others are afraid that an emotional outburst on the part of their client would offend the defendant and reduce the chances for a successful mediation. Some plaintiff attorneys simply want to save time. They believe that they can speak more efficiently and effectively than their client.
Plaintiffs motivated by anger or justice, though, need to speak and be heard. Once such a plaintiff has had his say, he can begin to focus on the resolution of his case. A plaintiff who is not permitted to speak to the defense will persist in his attempt at being heard. Typically, he will speak to a mediator in a caucus session, asking the mediator to relay his message to the defense. The result is longer mediation and a day of frustration.
Defense attorneys and insurance claims adjusters who have participated in mediation should ask themselves how many times they have found themselves well into the mediation session and the mediator is still delivering messages from the plaintiff. In this type of situation, the plaintiff generally wants to continue arguing the facts of the case while the defense wants to talk numbers. This plaintiff’s motivation is usually anger or justice; he’s demonstrating that he has not been given an adequate opportunity to express himself.
Based on our research, Miles Mediation has begun encouraging plaintiffs to speak during our mediations, especially at the opening session. We have discovered that once a plaintiff has had her say, she quickly relaxes and focuses on a discussion of money. Allowing plaintiffs to express themselves early in the process has resulted in more efficient and successful mediations.
Plaintiffs motivated by anger or justice do understand that money is the only possible tangible result at trial or mediation. Nevertheless, for them the case is about more. That “more” needs to be expressed and heard.
That the case will conclude in an award of or an agreement on a monetary figure is not as important as what that figure represents to the injured party. The discussion of money can begin after the plaintiffs have been heard. When the “Neither Agree nor Disagree” option is not available, our survey results show that the percentage of plaintiffs who either agree or highly agree that they are motivated by money drops from 100 percent to 75 percent from the pre-mediation to the post-mediation surveys.
Mediation has become the new day in court. Recently a seasoned insurance defense attorney told me, “I used to try two cases a month. Now I mediate two cases a week, and I’m lucky if I get to try two cases a year.”
Not long ago, I was mediating for an experienced insurance defense lawyer from North Georgia. The case involved neck surgery. When I asked him the going settlement for a neck surgery case, he replied, “John, I have no idea.”
“Well, if you don’t know, then who would?”
“There haven’t been any neck surgery cases. In fact, there have only been a total of eleven civil jury trials this year.”
Mediation has become the forum for resolving cases. The wise insurance defense attorney will develop a new skill set in order to compete in this arena.