Recently, I conducted a mediation where the claimant's attorney stated that he was there "only to get to the bottom line dollar," that "the only reason my client is here is for the money." Leaving aside the obvious posturing evidenced in such comments, the fact is, although money is important--it is, after all, the ultimate goal in a settlement negotiation--experienced mediators will tell you that it is only one of many factors that drive the mediation process.
(As an aside, the posturing attorney had informed me he was the attorney for the union of which his client happened to be a member. It immediately let me know that his aggressive behavior probably was intended to be conveyed to the membership at large. I was neither impressed nor influenced, but my supposition, if true, offered another example of the intangible factors discussed herein, and merely recognizing this motivation helped guide my subsequent handling of the case.)
From a claimant's standpoint, he may be poor and desperately in need of money, to pay the rent, buy food or surprise his wife with a gift on her birthday. The claimant may be shamelessly wealthy, and if it is a small case, she may look forward to, even enjoy, the courtroom scene and "mixing it up with those lawyers."
The claimant may be self-confident, self-assured, and may speak well in his own behalf. She may make an attractive witness-- not in the sense of pretty, but with a demeanor and general appearance to which jurors are attracted and which draws on their sympathies, often the grist of the litigation mill.
On the other hand, a claimant may be exceedingly selfconscious, unable to speak clearly, may wilt in a public arena, insist on looking slovenly and, in a word, have a penchant for being unattractive to a jury. Now, the latter may not admit to these things, but his attorney will recognize them for what they are and for what they can do to his client's case in trial.
The claimant may have a child of children that are on the verge of entering college, thus making the need for cash imminent, rendering him unable to suffer the delay and uncertainty of trial. The claimant also may have something in her past that is destined to be disclosed under the harsh, sometimes ruthless, procedures for discovery of evidence. The veiled secret may not even be directly related to his claim, such as the details of recent ugly divorce. it may be a very personal matter involving his relationship with his wife which could become relevant by reason of their impact on consortium claim, i.e. a claim for loss of the services of an injured spouse.
The defendant is not untouched by these considerations, especially if he or she is an individual, which can be the case if she has money from which a verdict can be recovered. Such a defendant might have grave concern about the sudden loss of assets or about judgment liens against her properties. And, yes, they too might be troubled about the disclosure of secrets in their past. They may simply have reservations about the complete disclosure of their financial worth, which is a necessity in the plaintiff's effort to seek his or her source of recovery for compensatory and/or punitive damages.
Corporate defendants worry about their image in the community, the perhaps less than solid appearance of their financial statements, and, in the event the litigation is of great magnitude, a significant monetary loss in and of itself. Insurance companies are popularly regarded as invulnerable economic giants. The fact is, they can be quite vulnerable. Hurricane Andrew, the California earthquakes, the floods in the midwest--each or in combination with one another left many insurers in financial chaos, from which many did not survive. Even the biggest have their financial spines jellied by such tremendous losses. Yes, they recoup those losses to a large extent with increased premiums, but the extent of such increases can, and in some cases have, put their respective market places in jeopardy. In other words, some policyholders may find themselves no longer able to afford being insured. No insured, no premium, no recoupment--and this places the adjusters, the claims attorney and managers in a precarious position when dealing with individual, ,D claims. They can become less faithful to the "good hands" and "good neighbor" sales philosophies.
So, there we are. Nobody in the world of litigation is unemotional player. All parties, large and small, and their attorneys, have their wants and needs, their crises, financial and personal, their secrets and their peccadilloes--none of which necessarily relate to the economic underpinning of a settlement negotiation, but they do bear upon the amount ultimately agreed upon.
If mediation works at all, and from my experience as a mediator I would say, unqualifiedly, it does, it works to a large extent because of these hidden aspects, few of which the parties would dare admit to in direct negotiation with their adversaries. The mediator, if alert, senses them. Sometimes, he is flatly told about them, with the assurance of confidentiality, an essential feature of mediation. In any case, they become vehicles for movement, as the mediator slowly discerns each party's real "bottom line."
Mediation also works for a less sophisticated reason: it is almost impossible in most cases for people, especially but not exclusively attorneys, to negotiate back and forth to a conclusion while sitting face to face. Again, emotions and perceptions are at work. Each move is perceived as an indication of a weakness. Flowery qualifiers bounce happily across the table. An impasse seems always to lurk around the next bend. The parties become polarized, and there is little movement, until, perhaps, they are staring at the courthouse doors, when in desperation they scramble for a resolution. By that time, great sums of money have been spent, the claimant's attorney's contingency fee has jumped with the filing of suit, and the individual corporation of insurance carrier begins to feel a weakness in its knees over the possibility of having to explain a blowout verdict to management.
The mediator, admittedly, is a skilled schmoozer. The same basic information passes back and forth between the parties in the caucusing process as would happen if they were face to face. The mediator, however, is able to avoid premature bottom lining by either side, not only through recognition of the intangibles discussed above but also by alerting them to strengths and weaknesses that may be known to them but which frequently are forgotten and need reminding. She occasionally has to remind an attorney that the mediator is not the jury or a judge and does not need or want impassioned arguments to aid her in moving the mediation along. Histrionics have little effect on mediator during caucuses, the separate meetings with each side, should be kept on a temperate level and, warming Joe Friday's heart, confined to the facts.
At best, folks, litigation is an ugly business, the chief beneficiaries of which are attorneys and not necessarily by their choice. They are officers of the court and bound to follow the procedures and dictates of our legal system. Jury trials, even trials without juries, are fraught with uncertainty, delay, and high costs, both in money and patience. It is a stressful affair at best.
The 18th century French philosopher, Francois Aroet, better known as Boltaire, said that he was ruined twice in his life, once when he lost a lawsuit, the second time when he won one.
Charles Dickens, a notorious critic of lawyers, was less tactful: "The one great principle of the...law is to make business for itself. There is no other principle distinctly, certainly and consistently maintained through all its narrow turning." Charlie was a bit harsh, and probably had a bone to pick.
Mediation is the answer and the worthwhile alternative to a trial, but it is well to keep in mind that, however skilled a mediator may be, he or she is not a magician. It takes the combined efforts and cooperation and the understanding and earnest willingness of the parties to make it work, and, when it does work, it works to everyone's advantage.
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