Communication- The Driving Force Behind Success or Failure at Mediation

By Wayne Wilson
Team Leader Wayne Wilson

Positive Communication Enhances the Potential for Success

The following excerpts from John Miles’ excellent publication, A New Day in Court, address the issue of communication in the context of the mediation process:
“Communication drives mediation. Both the plaintiff and defendant need to speak and be heard. Resolution requires that both parties use positive language.”

Expressing Empathy

One of the most effective communication techniques is expressing empathy. Plaintiffs motivated by anger or justice have suffered a loss. They feel, often rightly so, that they do not deserve what happened to them. They need to have their suffering acknowledged. They know that the defendant can’t change what happened and that, in the end, their case will be resolved for a sum of money. Regardless of who is legally responsible, these plaintiffs need the defendant to understand their circumstances. There is value in acknowledgment.
Expressing empathy is not the same as accepting legal responsibility. Empathy is any expression that conveys understanding of an identification with another’s situation. Simply stating that “I’m sorry that you have had to go through this” can change the tone of the mediation and set the stage for resolution.

Accepting Responsibility

It is a rare case in which the defense cannot take responsibility for some aspect of the situation. If negligence is fairly clear or the defense plans to admit liability at trial, the defense should acknowledge the insured’s responsibility in causing the accident. If there is an issue as to negligence, but not as to damages or injuries, an acceptance of and understanding that plaintiff’s injuries are legitimate can be validation that the plaintiff is being honest without accepting liability for the accident or injuries.

Showing Flexibility

Drawing lines in the sand hinders the mediation process. On occasions when the defense is limited as to the amount it can offer to settle the case, communication is of the utmost importance. Human nature is such that, even if we know we should accept the offer, most of us will reject an ultimatum. For that reason, telling the plaintiff to “take it or leave it” is a risky strategy.
The amount of the offer can show flexibility. Structured settlements not only allow a plaintiff to realize more money over time, but they also show an appreciation for the plaintiff’s long-term needs. Structured settlements demonstrate a willingness to be creative in finding a way to resolve the case.

Being Respectful

Research at Miles Mediations has shown “process” to be as important as the settlement amount for plaintiffs motivated by anger or justice. Needless to say, you should listen to people who need to express themselves.
Many defense attorneys and insurance claims adjusters fail to actively listen to the plaintiff during the opening mediation session. They appear disengaged and dismissive. And to the plaintiff, simply disrespectful. This “one on one time” with the plaintiff in the opening session provides an excellent opportunity to treat the plaintiff with the courtesy and respect he deserves. Plaintiffs have the ability to respond positively to legitimate factual differences with the insurance adjuster. Plaintiffs will never respond positively to indifference, irresponsibility, inflexibility, disrespectfulness, rudeness or scorn. If the goal is to have the mediation fail, these behaviors are certain to make that a reality.

Being Prepared

Being prepared is a positive communication technique that closely parallels showing respect. Preparedness is a technique that is of equal importance to plaintiff attorneys, defense attorneys, and insurance claims adjusters.
The plaintiff considers his case to be singularly important. He expects (and deserves) professional consideration. An attorney or adjuster who misstates facts or appears unprepared sends the message that the case doesn’t matter and that the plaintiff doesn’t matter. Likewise, the failure of an adjuster to be present at mediation sends the same message. The plaintiff considers the mediation as his day in court. In that respect, it is a very important day in his life. He has been anticipating this day for weeks. He has discussed the case with family members and friends who are sometimes waiting in the outer office to support him. Imagine his disappointment when the adjuster is not there. It is difficult to mediate with a plaintiff who has been made to feel insignificant. The mediator must face the challenge of convincing the plaintiff to continue with the process before he can even begin to mediate a resolution of the case.
*Excerpt from Wayne Wilson’s paper, “The Mediation Process- Strategies and Techniques for Success.” Wayne presented the paper at the ICLE Seminar, Winning Settlement Strategies on March 18, 2016.