View from the Inside: The Subtitles of Mediation Negotiations

Early in my career as a mediator, I believed that participants in mediation were motivated by money. The defendant wanted to settle for as little as possible, and the plaintiff wanted to get as much as he could. Certainly lawsuits involved emotional issues, primarily for plaintiffs. However, if the defendant offered enough money, the emotional issues vanished or were at least greatly minimized.


As mediator, my role was to create uncertainty on both sides. Juries are unpredictable. They may award more than the defendant wants to pay and less than the plaintiff is willing to accept. Better to compromise at mediation than to receive a disappointing verdict. While this strategy was often successful in assisting parties to settle their disputes, it failed to offer many participants what they really needed: the opportunity to be heard.


Before court dockets became clogged and litigation became too expensive, parties were heard at trial. Jury trials were a cost-effective way to resolve disputes. Trials not only resulted in closure but allowed parties to have their say. The purpose of this book is to demonstrate that mediation has become a superior method for allowing parties to present their claims and reach closure. Mediation has become A New Day in Court.


Mediation is most effective when it meets needs formerly met in court. Specifically, the mediation session must allow for what most litigants desire: a fair and serious process resulting in a just resolution of their case. I believe that mediation is better than trial at meeting all parties’ needs. Over eleven years of mediation experience have led me to conclude that this fair and serious process involves far more than resolution.


I have learned that most litigants have an inherent desire to be heard, and their desire to be heard can be every bit as important as their desire for resolution.


A personal experience taught me the importance of being heard. Nine years ago my wife and I went through our second adoption process. With our first adoption we learned that while there are professionals in place to advocate for the baby and the birth mother, adoptive parents can be victims who are led through twists and turns and heartaches.


In an effort to avoid being blindsided again, my wife and I retained a professional consultant to advocate for us, to shepherd us through our second adoption. Our primary focus was on being selected by the birth mother and being ensured that she didn’t change her mind and decide to keep the baby. Our consultant recommended an adoption agency, and a birth mother selected us. When the due date arrived, we traveled to Oklahoma City.


After the baby arrived, things got difficult. Only when the baby was born did we learn of a potentially dangerous condition in the medical history. This issue could have a significant impact on the baby’s future. We were faced with a decision: Did we want this baby?


My wife and I were angry, frustrated, and confused. Why hadn’t this condition been identified earlier? What were the chances the baby’s health would be affected? What were we supposed to do? Should we take the baby home or begin the process all over again?


The attorney for the agency and our consultant were long on information but short on advice. The decision was ours, and the decision had to be made quickly. We wanted someone to take responsibility for the mistake. We needed someone to acknowledge that we had been wronged, and most importantly we wanted to make the right decision.


Plaintiffs who participate in mediation may feel the way I did in Oklahoma City. Like me, they are participating in an unfamiliar process. The professional who is supposed to be advocating for them seems surprisingly detached and emotionally distant. Like me, they may feel anger—and that anger needs to be acknowledged.


My wife and I needed three things. First, we needed to be treated with respect. We needed someone to acknowledge the importance of this decision and that our questions and concerns were valid. Second, we needed to be heard. We were angry and believed we had every right to feel that way. We wanted to express our anger. We didn’t need to hear about the feelings and needs of the birth mother, nor did we need to be told not to be upset because “this type of thing happens all the time.” Finally, we needed someone to give us the information we lacked, someone to give us good advice.


I have come to understand that many plaintiffs who participate in mediation need these same three things: to be treated with respect, to be heard, and to receive good information and advice. For my wife and me the person who provided what we needed was Daffney. Daffney was a nurse who sat patiently with us and listened while we vented. No doubt much of what we had to say was not relevant to the medical issues that Daffney was there to address, but she listened until we had our say. She gently guided our focus to the important issues. She provided the scientific information we needed and also gave us counsel.


I remember my wife asking, “What should we do?”


Daffney responded, “Take your Joe home.”


Our son’s name was to be Charles Joseph. We would call him “Joe.” Up until that point I didn’t want to use his name for fear he wouldn’t be ours. When Daffney used his name, I knew what we would do—what we wanted to do all along. We took Joe home.


Daffney didn’t give us information that was different from the others. While she showed compassion, she was not overly emotional. She confirmed the decision we wanted to make. Daffney understood we needed to reach a certain comfort level before we could make that decision.


Successful mediations are ones where all parties, particularly plaintiffs, are allowed to reach a comfort level. What makes any given plaintiff comfortable can depend on more than one motivational factor. This book is designed to help attorneys, insurance claims adjusters, and mediators develop better mediation advocacy skills. It will help the reader identify what motivates plaintiffs to settle and how to effectively negotiate the case to a successful conclusion.


1  |  Recognizing the Motivators

No one does anything from a single motive.

—Samuel Taylor Coleridge


Anyone who has suffered through an hour-long talk on mediation might rightly conclude that the speaker had been allotted too much time—by about fifty minutes. There simply are not that many ways to say that the defendant needs to pay more and the plaintiff needs to accept less. When I was asked to address a convention on the topic of mediation, I decided to try something different.


A few months prior to the speech, I began asking all my mediation participants to fill out surveys. The surveys were designed to identify what motivated individuals to mediate.


The purpose of the surveys was to provide a unique and entertaining topic for my presentation. The findings of those surveys radically changed the way I mediate—and, I might add, prompted me to write this book about my theory of mediation.


Since experience is indeed the best teacher, I shall share my experiences from the beginning—September 2000—in what I call the Empirical Awareness Period.


At that time attorneys and insurance claims adjusters believed that mediation had become too expensive, that mediations were taking too long. I believed for years that people were motivated to mediate for one reason: money.


Consequently, I saw a business opportunity compatible with both these beliefs: an efficient mediation practice that focused on the bottom line, providing value and quality in alternative dispute resolution (ADR) services at a fair price. Our company slogan was “We Get It Done.”


While plaintiff attorneys, defense attorneys, and insurance claims adjusters focused on the bottom line, I began to recognize that plaintiffs were often driven by motivations other than money.


At that point I began to appreciate the importance of listening—a concept that my father brought home to me. Dad was responsible for the marketing and sales of a company that produced and sold worldwide high-end outdoor and casual metal furniture. Each year the National Retailers Association (Dad’s customers) awarded an Outstanding Manufacturer’s Leadership Award to one of the fifty-plus manufacturers in the Outdoor and Casual Furniture Industry. The award was based on five performance categories, customer service being one of the most important.


Dad’s company won the award five times in the first eight years of the award’s existence, three of those honors came in consecutive years. The reason? His company listened to its customers and apologized for its mistakes. Mistakes were made, some of them whoppers. A furious customer would call. The customer service representative would listen carefully, apologize when appropriate, and ask how the company could best correct the mistake.


This caring, responsive attention almost always had a positive effect on the outcome of the situation, quite often resulting in no adverse action whatsoever. On the contrary, because the company listened, it claimed many lifetime customers whose loyalty, in turn, saw the company through some tough times.


The importance of listening is readily apparent in an automobile accident case that could have settled for a modest figure. The judge ordered the case to mediation and told the attorneys that he did not intend to waste two days of his trial calendar on such a small case. He added that the parties were not far apart. The insurance company had made a low, but not unreasonable, offer to the plaintiff attorney’s demand. It was the type of case I mediated repeatedly during the early years of my career. It needed to be resolved quickly—somewhere between the demand and the offer. The plaintiff needed to be persuaded that he would be better off accepting the insurance company’s offer. Prior to the mediation, the plaintiff attorney had told me privately that he was having a hard time with this case. He wanted me to know that I could “lean on his client.”


The typical mediation begins with an opening session. I make a brief statement explaining the process. Following my remarks, the plaintiff attorney makes an opening statement. This statement explains the case from the plaintiff’s perspective. The attorney in the automobile accident case explained how the accident occurred. He enumerated his client’s injuries, the amount of the medical bills, and the amount of lost wages. It was a brief statement, appropriate to the size of the case. The entire statement lasted less than five minutes.


While the plaintiff attorney was speaking, I noticed that the plaintiff was watching the defense attorney. The defense attorney was rummaging through his file, seemingly ignoring what the plaintiff attorney was saying. When the plaintiff attorney had finished his opening remarks, the defense attorney spoke. He explained that the insurance claims adjuster was unable to attend the mediation but was available by phone. He added that he was confident that the case could be resolved. He was ready to start negotiating.


The openings are followed by caucus sessions where I meet privately with the parties. I met first with the plaintiff and his attorney. Sensing that the plaintiff was frustrated, I invited him to talk about the case. While he spoke about how the back injury had prevented him from working as a cook, his attorney began looking through his file.


“Found it,” said the plaintiff attorney. What he found was the letter he had written to the defense attorney confirming the insurance company’s last offer of ten thousand dollars.


“Let’s drop five thousand to thirty thousand dollars.” Turning to his client he added, “If that’s all right with you?”


“How am I supposed to live on ten thousand dollars?” asked the plaintiff.


“I know, I know,” replied his attorney, “but remember it’s not where the insurance company starts but where it ends up that’s important.”


With that I was dismissed from the plaintiff’s room to deliver the new thirty-thousand-dollar offer to the defendant. After three and a half hours of mediation, I declared an impasse.


The plaintiff had refused to accept less than twenty-five thousand dollars to settle his case. The attorneys were frustrated. I explained to the plaintiff that, given the facts of his case, twenty-five thousand dollars was on the high side of what he could expect to receive from a jury. The plaintiff, however, could not be persuaded. He asked the rhetorical question, “Do the facts really matter?”


I suspect the plaintiff’s frustration was not as much with the amount of the offer from the insurance company as it was with the process. For the attorneys, the case was about money. For the plaintiff, it was about an injury that prevented him from working as a cook in a fast-food restaurant. His livelihood had been taken from him, and nobody seemed to care. Worse, both his attorney and the insurance company attorney appeared indifferent at best and conspiratorial at worst. I imagine that the plaintiff may have felt as if everyone else had met and decided what his case was worth. He just needed to do as he was told.


Would it have made a difference if the plaintiff had been allowed to speak and the attorneys had listened respectfully? I believe it would have. Listen to the plaintiff!


I served as a mediator in a case involving the death of an eighteen year-old boy. As part of his demand package, the plaintiff attorney made a DVD of the young man’s mother expressing her feelings about losing her son in such a tragic way. Needless to say, the mother’s testimony was very moving. The testimony of the young man’s older brother, however, demonstrated the importance of allowing people to be heard and the mistake we make when we assume that litigation is only about money.


The older brother had not expected to make a statement. He had simply driven his mother to the attorney’s office. As the mother was testifying, the attorney observed the brother. Suspecting that the brother had something he wanted to say, the attorney requested that the brother sit before the camera and speak. Because he had not prepared a statement, his testimony wandered—remembering his younger brother and the times they shared. When he began to reflect on the events of the night of the accident, he became more somber and emotional.


He was fifteen years older than his little brother. Because there was no father in the home, he assumed the role of teaching his little brother what it meant to be a man. The older was quick to discipline the younger, always in love. The older brother would remind his brother that he’d forever be there for him and would pick him up when he fell.


The older brother had a difficult time recognizing his younger brother at the hospital. The young man had been ejected from the car and was comatose, clinging to life. The older brother couldn’t comprehend what was happening. With tears, he recalled saying to his kid brother, “I know you’re playing. You need to get up out of that bed.” When the realization finally set in that his younger brother wasn’t getting up, the older brother said, “When you’re ready, you just say so and I will help you. I will be standing right here when you are ready.”


He stood for twenty-six hours. He refused his mother’s repeated requests to go home and get some rest. Eventually he and his mother decided it was time to let his brother go, and they said good-bye.


At the conclusion of his testimony as he was wiping his eyes with a tissue, the plaintiff attorney could be heard saying, “Thank you. I know that wasn’t easy.”


The older brother replied, “No, thank you. I needed to get that out.”


Later he explained that he had felt guilty about his brother’s death. He felt he should have been able to prevent the accident. If he had been there that night, the accident could have been avoided. Having had the opportunity to express himself, however, he was ready to begin the healing process.


Understandably, his mother was having a harder time letting go. She was unwilling to settle the case, choosing instead to fight for her son, to punish the corporation that allowed a reckless driver to cause this accident. During the mediation, the older brother was able to persuade his mother that it was time to put the lawsuit behind them. The case would not have settled without the older brother’s counsel. Listen to the plaintiff!


Two cases: One could have settled for a modest amount; the other settled for a large amount. Both cases featured individuals who needed to be heard.


Early in my mediation career I incorrectly assumed that money was the only thing that mattered to plaintiffs. I fear that too many mediation participants still believe money is the exclusive motivator. At some point during those first nine years, I came to understand about motivators other than money, such as fear, anger, and justice.