By Terri Lubaroff
Donald ambled into the conference room with difficulty. He looked like a nice, working class man in his retirement years, but the gray pall he carried indicated his health wasn’t going to let him do a whole lot of fishing on his beloved Lake Havasu any time soon.
Donald slipped in a puddle of water at the hospital where he was receiving therapy for an unrelated condition. The fall was horrendous… so bad that he heard his hip and shoulder snap. His hip required immediate surgery. The shoulder would be an ongoing problem. Although the hospital admitted that Donald fell in their hallway, their staff was adamant that large “Caution, Wet Floor” signs were present. They refused to pay for his medical bills and he sued.
The first mediation ended with both parties agreeing that further discovery and an independent medical examination were needed to determine the nature and extent of Donald’s injuries. The second mediation happened several months later, when both parties were finally ready to negotiate.
One of my biggest hurdles as a mediator is to overcome each party’s expectations about what might happen in mediation. The types of expectations that a mediator must overcome include issues of liability, causation and damages, as well as possible defenses and possible accusations; however, the most interesting and challenging mediations come with a set of expectations based on history. And Donald came with a lot of history.
In the 1980’s, Donald was injured in an accident and sued a well-known manufacturer for product liability. The product defect had injured over 65 people, and the first case that went to trial resulted in a six-figure verdict for the plaintiff. Donald’s case was in trial at the time, and the manufacturer settled with him before the jury came back from deliberations for a low six-figure sum. That case set his expectations for future litigation. Donald believed that if he got low six-figures for an injury that wasn’t very severe and healed quickly, he should get a lot more for this current injury, which was much worse and would never fully heal. With pure optimism, he told me he wanted enough settlement money to take care of his kids when he died and to buy a new truck and a cabin in the mountains.
The lawyers for the hospital had a “history” they wanted me to know about, too. Not only was the hospital denying full liability because their witnesses testified that warning signs were present, they had an entire file of Donald’s history that reflected negatively on his case. This file included a doctor’s recommendation for a surgery Donald was trying to attribute to the fall a full six months prior to the accident. The file also contained a history of Donald’s other falls. In fact, he had fallen on 13 separate occasions prior to this one, including one the day before at the same facility. Finally, Donald was in the facility because of a prescription drug dependency. The hospital was prepared to negotiate, but at a small fraction of the level that Donald and his lawyer were hoping for.
I quickly discovered that Donald was not being honest with his lawyers about his history and the reason for his high expectations. It was time for an intervention. I spoke to Donald’s lawyer privately. I explained the defense’s position. I asked the lawyer what her expectations were. One of my biggest hurdles as a mediator is to overcome each party’s expectations about what might happen in mediation. The types of expectations that a mediator must overcome include issues of liability, causation and damages, as well as possible defenses and possible accusations; however, the most interesting and challenging mediations come with a set of expectations based on history. And Donald came with a lot of history. She privately informed me that she was concerned about Donald’s expectations to begin with and the new information provided by the defense just solidified her resolve to settle the case in mediation. She said that it was going to be my job to educate her client about his case in the “real world.” She was concerned that his expectations would be the obstacle to resolution.
The next six hours were spent talking to Donald and negotiating within the framework of his expectations as we slowly adjusted them downward. His lawyer knew that Donald wanted to feel like he got a “fair” deal, and that he needed to fight for it, so every 30 minutes or so I would ask him for a demand and would communicate that to the defense, knowing that until we got below a certain number, the defense was just being patiently compliant with my request that they stay and negotiate in good faith to allow me to do as much as I could with the plaintiff before they gave up.
We discussed Donald’s family, his hobbies, and his injuries. We built a rapport and established a high level of trust. We spoke about his hopes and dreams for the money. We discussed the idea of “fair” and what that meant to him and what that might mean to someone coming from a different perspective. We quantified how much a new truck would cost, and how much a cabin in the mountains would cost. We analyzed how much Donald’s medical bills were in comparison, discussed what that means in the context of general damages, and Donald slowly began to realize that his expectations were not in line with reality.
Finally, after many hours, Donald understood the hospital wasn’t trying to bankroll his lifestyle, just compensate him for the injuries he legitimately received from the fall. The settlement he agreed upon was six-figures less than he originally expected, but Donald still left feeling like he got a fair deal.
Before mediation, it is important to understand your client’s expectations because those expectations can often be the one and only obstacle to resolution. A neutral mediator can help a client work through their expectations so all parties can determine whether those expectations are in line with the legal case or outside the scope of the injuries claimed.
The biggest challenge for the mediator in this context is that he or she must remain neutral throughout this process, taking great care to ensure that each party’s interests and positions are fully examined and addressed.
In this mediation, the plaintiff’s lawyer gave the mediator strict marching orders that the mediator was to help adjust her client’s expectations. Mediators might rightly ask, “Whose interests must the mediator serve? Which party is the mediator’s client: the attorney who hired the mediator or the attorney’s client?” These are valid ethical questions that should be addressed. After all, a mediator must be careful not to brow-beat a client into accepting an unsatisfactory settlement offer. The client must feel comfortable with whatever decision they make, even a decision with which their own lawyer disagrees.
In commercial mediation, especially when a plaintiff’s lawyer works on contingency (as in this case), the mediator’s job is to help facilitate both the lawyer’s and the client’s positions, their mutual understanding of the strengths and weaknesses of their case and their individual underlying interests. In this example, the lawyer had spent a considerable amount of time and money on the case; however, upon learning that opposing counsel had a strong defense, her interests switched from wanting to obtain a huge settlement or jury verdict for her client to a desire to recoup her costs and time, and hopefully still turn a profit. The client’s interests were more complicated and revolved around his history and expectations (as discussed above). We discussed these interests together so both the client and the lawyer could have a mutual understanding of their needs and desires.
From an ethical perspective, there are many ways to arrive at the “right” outcome. One mediator might practice simple shuttle diplomacy and communicate demands and offers until both parties reach impasse or settlement. Another mediator might be more evaluative, discussing only the strengths and weaknesses of each element of the case. Yet another mediator might dig at everyone’s underlying interests, asking all parties to analyze and quantify those interests, literally helping the parties put a price on their own “happiness.” This mediation was complicated enough to require all three methods.
Commercial mediators use finesse, nuanced communication skills and careful attention to process, especially when dealing with high expectations or client control issues. Lawyers and their clients need to come to mediation prepared to discuss the strengths and weaknesses of their case, as well as settlement demands and offers, but they must also be ready and willing to discuss more difficult issues: what is driving them emotionally, personally and financially. Examining these underlying interests helps align expectations, even when expectations at the end of mediation are vastly different from the beginning.
A skilled mediator can help all parties understand and overcome great expectations, achieving resolution in cases that might have gone to trial otherwise.