The necessity for mediating wrongful death cases comes when we least expect. A late-night phone call jerks you awake. Who could it be at this hour? Filled with a nameless dread, you answer. Good news could have waited until morning. As the caller speaks, you have a sense that everything normal has been ripped away. Your future is gone, your plans demolished. You have no stability, no hope. In their place is a whirl of emotions, chiefly grief, rage, loss, and an almost overwhelming sense of unfairness.
The wrongful death of a loved one leaves behind a morass of emotions and a welter of practical questions about the sudden disorienting shift to a new and unwelcome reality. Assuming the bereaved is fortunate enough to be adequately insured or have savings, the more survival-oriented questions like“How am I going to pay the mortgage?” or even “How are we going to eat?” need not occupy center stage. But even then, and perhaps assuming the hundred small adjustments to everyday life are underway, those left behind will experience regret and remorse for things done and undone, anger that demands revenge and retribution, a deep need for respect and restitution, and a longing for release and resolution. These emotions will affect the survivors’ willingness to settle and their ability to negotiate productively. All participants in settlement — lawyers, claims adjusters, risk managers, and mediators —must be aware not of the special issues all wrongful death plaintiffs deal with in the bereavement, but about where these particular survivors are in their grieving process.
Every survivor deals with fear and anxiety about the future anger, guilt, the pain of separation, mental disorganization, depression, despair, identity issues, and other psychological and sociological issues. Have these survivors done so? If the answer is no, the survivors are unlikely to be ready to settle.
The psychological state of the surviving plaintiffs is a critical factor. Too much-unprocessed anger will lead plaintiffs to reject even the most generous settlement. Too much fear or guilt will motivate a surviving plaintiff to settle too cheaply, and thereafter suffer buyer’s remorse. The degree to which emotional, psychological, and sociological issues arising out of the unexpected death have been addressed will impact the mediation and will affect the survivor’s feelings about restitution and resolution. Put quite simply, unless the plaintiffs have dealt with these issues sufficiently, the case is not ripe for settlement discussions, no matter how talented the mediator is.
At times the face-to-face discussions across the mediation table can be a necessary part of the healing process.
Consider the case of a developmentally disabled child molested by a person in a position of power and trust. The parents lost their child shortly after discovering these horrifying facts. Naturally, they felt heartache, remorse, betrayal, guilt, and anger. They were prepared to bring suits. The institution involved had both legitimate legal defenses and a worthy mission. Its Board of Directors was fearful that a lawsuit would force it to close. The parties entered pre-litigation mediation. Caucusing in advance of the mediation, the neutrals conducting it urged the parents to discuss their feelings about the “Ten R’s”: (1) rage, (2) revenge, (3) retribution, (4) remorse, (5) regret, (6) restitution, (7) relief, (8) respect, (9) risk, and (10) resolution. During the mediation, the Executive Director of the facility sincerely apologized for the tragedy, highlighted new safeguards, agreed to implement ideas flowing from the mediation, and offered fair compensation. The case was settled.
The parents felt their loss would at least protect others from similar injuries. They had been heard, their pain given recognition, their ideas respected. Though not strictly a wrongful death case, it was grief-laden, and the same principles apply. All of the parties were wrestling with strong emotions that were difficult and painful to acknowledge. But had they not been acknowledged and dealt with, they would both have continued to pain the survivors and derailed the settlement.
Many survivors, heartbroken by their loss, feel re-victimized by a legal system that appears to make little sense. The civil litigation system has no room for emotions except possibly as an item of damages. No matter how devastating the survivors’ suffering, it is sanitized and compressed into a brief, dry series of facts.
Usually, effective defense counsel finds a respectful and sincere way to acknowledge the survivor and their special issues. But only mediation leaves room for emotional expression.
Grieving in the Context of a Sudden Wrongful Death.
Unanticipated grief leaves us unable to grasp the full reality and extent of our loss. Our adaptive capabilities are simply overtaxed and the death becomes incomprehensible. Where a survivor has lost someone dear to sudden and dramatic death, all professional participants must display empathy and compassion, and have at least a passing familiarity with the grieving process. It is up to Plaintiff’s counsel to determine whether his client and his case are ready for mediation.
Plaintiff’s counsel must give wrongful death claimants special attention, and do their best to prepare their case and their client for the mediation experience. Plaintiff’s counsel can add to their client’s pain if they bring them to mediation with unrealistic expectations about the value of the case or about the defendant’s willingness to accept responsibility, to offer an apology, or to fully acknowledge the loss in the context of litigation. Plaintiff’s counsel should know whether the survivors had pastoral and/or professional grief counseling, what sort of support system they have put into place, and where each of the survivors is in their grieving process. This information will aid the plaintiffs’ counsel in determining if the plaintiff is ready for mediation, who should be at the mediation, and how the mediation should be conducted.
There are many available conceptualizations of the grieving process Elizabeth Kubler- Ross famously suggested five grief stages: (1) denial, (2) anger, (3) bargaining, (4) depression, and (5) acceptance. More specifically directed to crime victimization (which could include some wrongful death cases) is the grief process referenced by Marton Bard and Dawn Sangrey. They refer to (1) initial disorganization/shock, (2) struggle/recoil, and (3) readjustment. I Dr. Therese A. Rando similarly speak of three stages of grief: (1) avoidance, (2) confrontation, and (3) accommodation.
Rando points out that the difference between sudden death and an anticipated death “is not in the amount of pain that the survivor suffers, but in its impact, it has upon that person’s ability to cope and to go about the rest of her life.” In sudden death, preparation and comprehension are missing. We are not braced for tragedy and it knocks us down.
Rando emphasizes that sudden death is the destruction of the world as you know it; there is no gradual transition. There is no time to make changes in yourself, and there is no ability to change your expectations about your life or your world. When there is sudden death, survivors are called upon to face a world as it abruptly has become, rather than a world as it should be. Professionals dealing with wrongful death cases need to be appreciative of this dynamic as survivors try to turn the clock back, ask what if, look for answers, and seek a target for their anger.
After a sudden death, the loss doesn’t make sense. A critically important understanding of what has happened is missing. We cannot comprehend what has occurred. The abrupt, arbitrary, inexplicable loss of a loved one leaves the survivor as a small boat caught unawares in a sudden hurricane of emotions. A safe harbor is hard to find. The neutral mediating such wrongful death cases must be prepared to deal with and acknowledge these emotions.
“Your loved one has died. You are unprepared. The death has struck like A tidal wave. You are cut loose from your moorings. You are all but drowning in the Sea of your private sorrow. The person who has been part of your life is gone forever. It is final, irrevocable. Part of you has died.”
This is how famed grief counselor Rabbi Earl Grollman describes the death of a loved one. Overwhelming. Isolating. Final. It sets us adrift. We may feel numb, listless, and depressed, unable to get on with daily life in the absence of the one we lived for.
While we know and accept that people die unexpectedly every day, we have great difficulty accepting that this might include those close to us. We begin to question everything, trying to make sense of the random.
How did this happen? Why did it happen? Did it have to happen? How could it have been avoided? We even ask for the impossible: Can we redo that moment that has caused my loved one’s death and my unexpected and unending agony?
The survivors must come to terms with the painful answers to these questions in order to properly process their grief. They probably will need professional help doing this. It should be done before the mediation to increase the likelihood of a successful outcome.
Fear and Vulnerability
We ask the above questions to find meaning in the meaningless. Accepting that the death of someone close to us is random, meaningless, or unavoidable is so difficult largely because it reminds us that we too are mortal and vulnerable. What happened to our loved ones could happen to us. Activities that seemed safe before the death, like taking the kids to school or going to the grocery store, now seem fraught with danger. In fact, nothing has changed about our vulnerability or mortality. The same risks were always there; the only difference is that now we are faced with inescapable proof of them. Before, we accepted the remote possibility as part of life, got life insurance for the kids just in case our luck ran out and moved on. Now our essential vulnerability is unavoidably before us.
In this situation, many feel anxious, fearful, depressed, and powerless. When we expect danger, we slip into survival mode and become incapable of complex thoughts. Asked to make complicated settlement decisions, we may simply be unable to do so. Mediation participants must be prepared for this, and strive to make survivors feel safe.
Remember, it may not be a phone call that changed the survivors’ world. They may have lived through the same traumatic events that resulted in the death of their beloved. They might have suffered severe physical injuries in addition to predictable psychological effects. If so, they are even more likely to feel fear and vulnerability, and perhaps even full-blown post-traumatic stress disorder.
Fear and vulnerability may also occur when a death is unexplained or bewildering, as when a child dies because her doctor unnecessarily delays arrival at the hospital, despite the repeatedly stated urgency of the case. If something as straightforward and important as the doctor got to the hospital in an emergency can go wrong, then anything can go wrong. Survivors may behave like a deer caught in the headlight, unable to decide what to do. Counsel and mediators must be prepared to assist in getting the survivor to make reasoned decisions
The anger survivors feel in wrongful death cases can be surprisingly intense. Anger is a response to a threat, often accompanied by a desire to hurt the one threatening. In a wrongful death case, the thread is enormous. It is two ones entire worldview, their way of life. The anger is proportionately more intense. Often, wrongful death survivors seek an explanation. When they don’t have one, the inexplicable world becomes even more threatening, as discussed above. This problem frequently arises in medical malpractice cases. Explanations of what happened are rarely given, fault is almost never admitted. This is despite the fact that research shows explanations, admissions of fault and apologies can lower and even eliminate demands for damages. This seeming contradiction is probably explained by the required reporting of malpractice settlements to state medical boards.
Anger can also be increased by some state medical malpractice caps, which seem to minimize the magnitude of survivors’ loss. Such laws can lead survivors to feel victimized all over again, this time by the legal system. Such feelings cause further anger, which makes settlement still more difficult.
When a survivor feels responsible for the death in some way, such as when parents second-guess themselves about allowing a child to engage in a potentially dangerous activity, his or her anger becomes less manageable and more intense. Part of that anger is no doubt directed inward, but if the anger has not had a chance to become fully expressed, at mediation the survivor may simply lash out at everyone – the mediator, defense counsel, his own counsel, the defendant, adjusters, and even other survivors.
This anger simply must find an outlet. Logic has nothing to do with it. It is up to the mediator to explain that the survivors’ anger may flare up, to decide whether the expression of anger is productive and whether the other participants are strong enough to endure it.
The difficulty is that we are social creatures. We take our behavioral cues from those around us. Therefore, anger breeds more anger, and the situation may quickly devolve into chaos unless the professionals maintain emotional control as the survivor lashes out in anger. Plaintiff’s anger should be respected and understood to be necessary by all parties.
When the death might have been prevented and the survivors (rightly or wrongly) assume responsibility for the failure to prevent it, their anger is greater and more difficult to manage. Of all the normal responses to sudden bereavement, anger impacts litigation and mediation the most.
Often, if someone asks a survivor whose anger is still unmanageable to decide whether or not to accept a settlement proposal, the survivor will react angrily. They will be upset with the offer no matter how “legally reasonable” it is. Some of that anger will be directed at their own counsel, the mediator, the defense attorney, and/ or the defendant.
Given their possibly incapacitating anger and emotional instability, it has been suggested that survivors not make important decisions for at least a year following the wrongful death. In some instances, an early mediation simply will not work.
Loss of a Child
Our children are mirrors of ourselves and our partners. They also remind us of those who have gone before –grandparents, uncles, cousins, and so on. They help re-capture our last youth and give us a chance to somehow fix old mistakes and improve upon what we accomplished. However vicariously, we often fulfill goals and dreams we could not reach by ourselves through our children. We expect children to do more and be better than us in all respects. When they die, reminders of the past and connections to the future die. Their dreams, our dreams, our spouses’ dreams, all vanish.
It isn’t natural for a child to die before his or her parents. To parents, a child always represents the future. Parents have a special bond with their children. They are the teacher, the best friend, the companion, the cheerleader, the moral authority, the secret-keeper, and the guide for their child. When a child suffers a wrongful death, the music stops. Parents already feel guilty about not protecting their children, even if they could not have done so. In jurisdictions where the law limits non-economic recovery in wrongful death cases, such as Colorado, grieving parents often see this policy decision by the Legislature as a personal rebuke and as an endorsement of their unjustified sense of guilt. They may not express these feelings to defendants or defense surrogates, but the neutral will often be told in private.
Loss of a Spouse
While most couples have tension in their marriage (some more than others) the loss of one’s spouse is a major loss in life. In fact, it is the most stressful event we can experience. Our spouses are our partners, our helpmates, our confidants, our advisors, our lovers, friends, roommates, uncritical listeners, our harshest yet most trusted critics, our comfort in hard times, our comic relief, and our fellow adventurers. They were the person with whom you decided things, with whom you ran the family, and with whom you divided family labor and toiled tirelessly toward family goals.
Your spouse helps you define and defend your place Just as we fill a number of roles for our children, our spouses play a number of roles for us. We build our lives and our dreams around them. They are the person with whom you decided things, with whom you ran the family, and with whom you divided family labor and toiled tirelessly toward family goals.
Your spouse helps you define and defend your place in the world and shares an often lengthy history with you. Your spouse helps set a pattern of friendships and brings you into touch with the community. Loneliness and loss of companionship naturally accompany the loss of a spouse. Quantifying this loss seems impossible and may feel insulting, especially when there are statutory restrictions in place. The professional participants in mediation should familiarize themselves with the psychological and sociological effects of the loss of a spouse because knowledge of such factors will assist all parties in their case evaluation, and smooth the path to settlement
Measuring the value of a life in dollars and cents seems impossible, cold, crass, and just plain wrong. After all, none of us, given the chance, would trade our loved ones for any amount of money. But coming to some conclusion of the agonizing dispute and feeling some sense of closure requires us to do so. We offer money because we have no other means of compensation. Our society does not allow the proverbial pound of flesh, and even if it did, revenge cannot completely wipe away the pain. Litigation, in particular, is not suited for wrongful death cases, because the emotions that are such an inseparable part of them have no outlet in the proceedings.
Mediation is different. Expression, discussion, revelation, and face-to-face interactions are a central part of what makes mediation work. Yes, monetary compensation will be offered as part of any resolution. Very often, it will be necessary to survive. But mediation participants can also allow the expression of difficult emotions can recognize the unimaginable pain that survivors feel and show empathy and, can confidentially apologize for any part they may have in causing the tragedy. Mediation allows the red exchange of ideas in a calm, directed conversation. It might even lead to the suggestion of safety measures that will prevent other tragedies like that which befell the claimant survivors.
To do that, the professionals must be willing to learn about the grieving process, willing to accept the assault of sometimes unreasonable emotions, understanding that resolution requires their expression, and be willing to provide a safe and accepting environment where those overwhelmed by their fear and vulnerability can begin to think rationally about the options for resolution that are presented for consideration.
None of this is easy. And none of it will undo the terrible loss that survivors have suffered. But it is necessary if the dispute is to be resolved so all parties can move forward productively.