Mediations and their participants never cease to amaze me. Recently, I mediated a personal injury lawsuit. It should have settled as liability was not an issue. Defendant was not contesting her fault for making a left turn immediately in front of Plaintiff’s vehicle that was proceeding straight.
Rather, the issue was damages or how much plaintiff’s soft tissue injuries, loss of earnings, pain and suffering and other general damages were worth.
As is typical in California, I did not start with a joint session, but rather with separate meetings first with plaintiff and her counsel and then with defendant’s insurance representative and counsel.
In speaking with plaintiff, I learned that she was seeking a settlement in the six-figure range, or several hundred thousands of dollars. The accident had taken an emotional toll on her and she was still in pain. There are things that she could do before the accident that she can no longer do and so wanted a large settlement to make up for it.
Then I spoke with the insurance representative and her counsel who told me a completely different story. Plaintiff’s injuries were minor, and she treated for only 2-3 months at which time the doctors released her from further medical intervention.
Consequently, the insurer believed the case should settle in the low five figure range or for thousands of dollars; not hundreds of thousands of dollars.
Hearing this wide discrepancy, I suggested to the insurance representative that perhaps we should have a joint session to discuss the parameters of a settlement and see if everyone could get on the same page regarding the nature and extent of plaintiff’s injuries. The insurance representative suggested I wait outside so she could discuss it with her counsel.
After a few moments, I returned to the defense room and was told that they refused to have a joint session. I was then asked that if the insurer was going to negotiate directly with plaintiff, why was I as the mediator even needed? Rather, I should do my job as a mediator and bring the two diametrically opposed parties into a settlement (without the parties ever meeting)! In fact, I was also told that at another mediation attended by the defendant, the parties were at opposite ends of a spectrum in terms of money and that mediator managed to get the case settled. So, I should do the same.
I tried to explain that the reason for my request was that the defense had far better command of the facts including plaintiff’s treatment than I did (as I had been involved only for an hour at that point), I did not want to misstate anything and so suggested that it would be better if those with the actual knowledge discussed it directly.
My explanation did not help. I simply was not doing my job by asking that the parties discuss the issues directly with each other.
I was taken aback by the notion that by suggesting a joint session in which everyone could discuss their respective view of damages, I was accused of not doing my job. It also gave me insight into how far afield we have gone in California by not using joint sessions but rather separate sessions or caucuses from the get-go and throughout the mediation process.
But, then I asked myself why the vehement objection to a joint session? Is it because the defense was afraid of what might happen in a joint session? That the defense may lose control of the situation? That it may become adversial? And nothing more than another opportunity for aggressive behavior by plaintiff or her counsel? In short, that would be counter-productive.
Or, is it because the insurance representative is impatient and to her it was just another file (and not a real flesh and blood human being) that must be closed as quickly and cheaply as possible? This plaintiff is simply an interchangeable fungible with all the other cases on her desk. Has the insurance representative become so skeptical of the many plaintiffs that it is a waste of time to listen to what this plaintiff must say? That she had already made up her mind about the value of the case and did not want to be swayed from that position by listening to plaintiff? I do not know.
But, what I am sad about is that the defense did not appreciate the many benefits of a joint session:
[ It] allow[s] each party the opportunity to highlight the merits of their case or defense while also listening to another perspective on the dispute. Executed well, the joint session combines subtle advocacy and reflective listening. The content of a joint session can range from a short statement to an elaborate Power Point presentation.
The joint session is often the only opportunity for a party to speak about their case directly to the opposing party. To be able to express how their life, business, etc. have been impacted by the facts giving rise to the dispute can be quite cathartic and set the stage for resolution. At the heart of every case is a story needing to be told. An effective joint session allows that story to be expressed in a safe, structured and confidential environment.
On the other side of the joint session coin, is the opportunity to engage in some reflective listening. People in litigation tend to see things perfectly from their own perspective. By really listening to another perspective on the litigated events reveals that indeed there are at least two sides to every story. Depending on the level of disclosure exhibited in the presentation, the “listening” party may get a preview of what they are likely to encounter at trial. A receptive listening ear can raise the potential for settlement and resolution. Of course, all of this presupposes a party capable of engaging in reflective listening in a potentially emotionally charged and tense situation.
Thirdly, a joint session allows for a more informed evaluation of the overall case. For an opposing party or principal to spend time with the other party, listening and observing, can be very beneficial in making case resolution decisions. In many respects, mediation is an assisted conversation about making informed decisions. To have the parties interact in the same room, in a carefully structured environment, enhances the quality of the decision making
As you might suspect, the matter did not settle. The parties remained in great disagreement on the value of the case. While I tried my best to discuss the defense’s point of view with plaintiff, I am only the mediator who was involved for several hours, and not months as was defense counsel.
So… a missed opportunity. The case should have settled and I truly believe that had there been a joint session, the outcome may have been different.
….Just something to think about.
By Phyllis G. Pollack