The Saddest Mediation: Mediating Wrongful Death Cases
By Andy Lax
Start with the obvious fundamental difference between a wrongful death mediation session and any other: the subject of the mediation itself is absent and will never return. That difference, in my experience, dictates a special way of handling such cases.
Lawsuits involving personal injuries can involve a lot of emotions, and wrongful death cases can be particularly emotionally laden. On one side, you have the plaintiff, who has lost a loved one in a tragic, unexpected way. On the other, you often have a defendant who is claiming to either not be responsible, or to not be fully responsible, for the person’s death. Even where liability is not an issue, the dynamics are unique. The defendant may be horrified at what has happened or may not seem to care (even if he or she does). The level of emotion and stress involved on both sides in this type of case is one compelling reason for a timely mediation of your wrongful death lawsuit.
While state laws vary, all states have wrongful death statutes that allow the personal representative of the decedent’s estate to bring an action against the person or entity that allegedly caused the person’s death. The personal representative, or plaintiff, must prove that someone died because of the result of another person’s negligence, and that family members surviving the person have suffered monetary damages because of the death. Circumstances vary, but automobile accidents, medical malpractice, and exposure to hazardous conditions while working that cause the death of someone can all trigger a wrongful death case.
These cases may go to mediation pre-suit, or after a lawsuit has been filed. As a mediator of wrongful death cases, I’m familiar with the emotions and issues involved with these types of cases. First, you’re going to have someone at the mediation who lost someone he or she cared about. That person, the decedent, becomes the focus.
Considering a General Session
In most personal injury mediations, I walk into the session “cold”, without a hint of the facts at issue. That can happen in a wrongful death case, but I prefer that the attorneys for both sides reach out to me ahead of the session to get a sense of the case’s specifics. One initial matter to discuss with the attorneys is to decide whether we want to have a general session. Many plaintiffs will not want to sit in a room with the person who killed their husband, wife, son, or other loved one, and a general session can only add to the stress and trauma the plaintiff experiences. However, sometimes an open session can lend a humanity to both sides that is beneficial. I count on the attorneys for guidance in that area.
If there is a general session, I caution both attorneys about it. The general session should be somber and not a “show.” I advise plaintiffs’ attorneys not to put on a major production with various props. In one case, the plaintiff’s attorney had a large display which featured the clothes the decedent was wearing when he died. Not helpful. The plaintiff often will feature a video in which the decedent appears. That can be effective but keep it brief and tasteful.
On the defense side, it is vital that the defense attorney, the defendant (if present), and any insurance representatives maintain appropriate somber demeanors. Even if the defense attorney and insurance adjuster have appeared in countless mediations, the demeanor should be one of “we take this seriously and this case is unique.” If there are liability issues, they should be stated, but in a general way without getting into the factual details of the death.
Mediating After the General Session
Once a general session ends and the parties break out, I start with the plaintiff, and I listen for a long time. I ask the plaintiff to tell me about the person he or she lost. My goal is to let the person talk and pay close attention to learning about the person who is gone. At some point, I will introduce the idea that we’re not here to talk about the value of the person’s life because there is no way to value that, but that we are here to consider a specific claim that the law has asked us to resolve. I want to move the person from an emotional space to one where he or she is looking at the merits of the case. But that should not be in the initial conference. In the first conference, and sometimes the second, I want the decedent’s loved one to know that I care (I do) and that I take my role in this matter seriously.
With the defendant, there will likely be a defense lawyer and a claims adjuster or supervisor who has “seen it all.” With the defendant, I start out with more of a business-like attitude. But part of my job is to introduce some of the impact of who the person was — to breach the wall a little bit, and make the defendant realize that more flexibility may be required. From the defense perspective, we need to recognize that, if the plaintiff gets a favorable liability award, in the last 10 years or so jury verdicts in these cases have far exceeded inflation. Defense attorneys and adjusters know that, but it is a point to note here.
Negotiating a Potential Settlement
I like to have at least one solid session, often two, with the plaintiff before we talk about money at all. Once I’ve established rapport with both sides, we can talk about offers and demands. Typically, I start with a demand from the plaintiff. No doubt, as in most mediations, that initial demand is illusory, and the defense will know that. But before I leave the room with the plaintiff, the plaintiff needs to understand that as well.
It is at this point that I like to work to get the plaintiff to realize that this mediation is not about the value of the lost person. Instead, we get the discussion going in the plaintiff’s room about the nature of valuing a claim, rather than a person. Once the plaintiff begins to understand that, the back and forth of the negotiation numbers does not seem like a cruel bartering process.
Once the “back and forth” process begins, that is also the stage to spend time in each room exploring the liability question, if one exists. Those in the defense room already know the law and have analyzed their risks for prevailing at trial. But, in most cases, the plaintiff has not. Good plaintiffs’ attorneys have done some preparation for this discussion prior to the mediation. But I have encountered more than a few who have not.
Perhaps they are worried about scaring off the client before the mediation by not looking like a ferocious advocate. In any event, to settle a case, it is crucial that the plaintiff’s lawyer not argue with me when I address liability defenses during the mediation but rather enter into a discussion about how the liability defense may or may not apply. (Plaintiffs’ lawyers should know this but they may be concerned with impressing their clients.) The plaintiff should also be a part of these discussions. If the case settles, the plaintiff will have to later defend that settlement to other family members, some of whom may have unrealistic opinions about the case’s value.
Wrongful death mediations do not tend to be long, drawn-out negotiations. First, if there are strong liability defenses, the defense may be simply dealing with a procedural hurdle — mediation — to get to trial. In that instance, the case is unlikely to settle unless new information is presented that the defense is willing to consider that day. Second, where both parties appreciate the goal of settlement, taking “baby steps” simply for the sake of negotiating is counterproductive in these cases. When parties are interested in settling, the negotiating process tends to move more quickly. When the parties insist on taking small steps and remain far apart in terms of their demands, however, the case is likely to impasse even if one or more parties desire a resolution that day (although it may settle after the mediation and before trial).
Finally, I think it’s important to note that at the end of the day, the defense will move on to its next case. But, for the plaintiff and the decedent’s family, this is a singular event. I treat it accordingly and, hopefully, those who lost a loved one will understand that the legal process was fair even if the loss of a loved one was not.
About Andy Lax
Andy Lax has served as a mediator and arbitrator since 1998 when he was certified as a North Carolina Superior Court Mediator. His extensive litigation and mediation experience allows him to see both sides of a dispute in seeking a resolution. As an arbitrator, he is often selected to be the third, neutral, arbitrator on three-person panels.
Andy has also worked as a litigation attorney for more than 30 years, handling cases for both plaintiffs and defendants in all North Carolina courts and all federal district courts in the state. He has taken over 200 hundred cases to jury verdicts. His cases have included a wide variety of litigation areas, including construction, business, insurance, contract, serious personal injury, wrongful death, medical and professional malpractice, and others.