As lawyers, we sometimes forget how emotionally charged a lawsuit can be—for both the plaintiff and defendant. For many, this is the first exposure to the court system and it can be overwhelming.
By the time a case comes to mediation, the choice of whether to settle should be a straightforward risk management decision. The central question is whether a litigant is better off resolving the case or taking the risk of getting a better outcome by going to trial. Indeed, there are many moving parts to this decision including the likelihood of winning; the cost of going to trial and the emotional toll a trial will take on the participants. All too often, however, the emotions underlying the dispute are the predominant consideration of the parties involved.
Someone who has lost a spouse or child due to medical negligence continues to experience deep, painful loss. A medical professional who has been sued for exercising what they believed to be their best medical judgment, even if there was a bad outcome, fears for their professional reputation or even financial ruin. A business owner remains angry or hurt over the exit of a former partner or key employee. Even trained and experienced insurance professionals become emotionally charged at the idea of paying money to a party they believe is undeserving or is gaming the system.
These emotions cannot be ignored and must be addressed if a mediation is to be successful because success at mediation does not just include resolution of the conflict. A successful mediation leaves the parties feeling they were heard and with a better understanding of why they should settle their case. How does a mediator accomplish this task?
1) Get to know the parties. I always spend time at the beginning of a mediation trying to get to know the parties. I like to ask where they were raised, where they went to school, how long have they been married, what their family is like, how did they end up in Oklahoma, or what they do for a living. If the case involves someone who died, I want to know that person’s story. If the case involves a medical or other professional, I want to know where they went to school, why did they choose their profession, and what does their practice or business involve. People get nervous before a mediation, they really don’t know what to expect, and as Dale Carnegie taught us, the easiest thing in the world to talk about is yourself.
2) Explain the process. Make sure the parties understand that the mediation is not an adversarial process. I always tell both sides that we are going to discuss the strengths and weaknesses of their case because every case has them. While I am usually presented with position statements by each party’s attorney, these documents advocate for their party’s side of the case. Depending on the age of the participants, I may refer to our impending discussion of the other side’s position as akin to the Paul Harvey famous comment about the “rest of the story”.
3) Ask a lot of questions. As a mediator, I get a short amount of time to learn about a case that has been in litigation for several years and involves events that occurred years before suit was filed. It is my job to fill in the blanks during a neutral and constructive conversation about the case. It is during these conversations that a party gets to vent. Sometimes that involves tears. Sometimes it involves table-pounding anger. It is my job to absorb those emotions, acknowledge the legitimacy of those feelings, and to redirect the conversation to the task at hand—resolution. If there is one thing I have learned through the course of mediating hundreds of tragic cases, closing the chapter on a life-changing event is a powerful first step to healing.
4) Manage expectations. Emotions can rise during a mediation due to unrealistic expectations. For instance, the party’s lawyer may have a pretty good idea where the case should settle, but the client wants to start at a number 3, 4, or 10-times that amount. The lawyer knows that an unreasonable demand may frustrate the negotiations, but if he or she pushes too hard, the client may feel that their lawyer just wants to settle, get paid, and go on down the road. A good mediator will manage the lay client’s expectations for the lawyer--essentially a mediation within a mediation.
5) Be honest. Sometimes I have to tell people things they don’t want to hear. Other times I may play the devil’s advocate with a party’s attorney. Hopefully my 35 years’ experience as a trial lawyer gives me the credibility to weigh in on how important legal or factual issues will likely play out before a judge or jury. With plaintiffs, that conversation usually involves the risk of losing at trial or getting less after trial then they might with a settlement. For business owners who angrily protest that they do not want to settle because of the principle involved, I may discuss the monthly cost of attorney’s fees and expenses to take a case all they way through trial and appeal. For some defendants there may be non-monetary reasons to settle such as the disruption of the business or practice from ongoing discovery. A mediator does a party no service avoiding the discussion of the practical considerations involved in refusing to resolve a case based on anger or hurt feelings.
Dealing with anger, fear, and tears in a mediation is part of the territory. How a mediator deals with those emotions makes all the difference in successfully resolving conflict.