As beginning mediators, we’re taught that facilitative mediation is classic mediation. If you’re like me, however, you’ve discovered somewhere along your mediation career path, that an evaluative approach can greatly increase your settlement rate. The more cases you mediate, the more your subject matter expertise grows, giving you the right to be evaluative, right? You’ve “seen it all before;” you speak with experience and confidence; you know what a judge or jury will decide. Your settlement advice is invaluable. After all, you’re the expert. Your mediations begin to follow a tried and true format. Read the briefs, make your decision, and proceed with mediation”¦
Wednesday morning, Santa Monica Court, a rear end, minor impact auto case. This one’s a textbook fact pattern seen in hundreds of PI cases. MIST: minimum impact soft tissue. No broken bones, no mangled body parts, just sprains and strains with no demonstrable manifestation. Soft tissue injuries which would completely resolve, leaving the plaintiff good as new. Defendant wasn’t denying liability; he couldn’t. He’d rear ended plaintiff in an intersection where plaintiff was waiting for the green. It was a five mile per hour “little tap”, resulting in a modest $1,200 auto repair bill. What the defendant was disputing was the “necessity and reasonableness of plaintiff’s treatment.” Plaintiff’s chiropractic bills (specials) amounted to about $5,000 and, although multipliers went out the window decades ago, plaintiff was demanding $15,000. Defendant was represented by his insurance company’s in-house council. Their offer of $2,000 was playbook perfect: $1,000 for chiropractic and another $1,000 for pain and suffering.
I’d barely finished reading the mediation briefs when a number jumped into my head. $5,000!! My experienced opinion said plaintiff had over treated. While he definitely deserved more than the $2,000 defendant was offering, I clearly saw the settlement as $2,500 to the good doctor and another $2,500 for the plaintiff, his attorney and court costs. The magic number was $5,000!
I met the plaintiff and his attorney in caucus. I talked about confidentiality, told them that I wasn’t the judge and proceeded to evaluate the strengths and weaknesses of the case. This was a piece of cake – I can do PI cases in my sleep. Plaintiff’s counsel admonished me that, as mediator, my “job” was to get $15,000 from the insurance company, no negotiation. “Put yourself in the defendant’s shoes,” I replied. “Consider that your client has over treated.” Plaintiff’s attorney informed me he did not, and would not, put himself in Defendant’s shoes.
I had not gotten off to a good start. My next move would only make things worse. “Juries in this venue are particularly conservative,” I said. “In my experience, they wouldn’t be sympathetic to a healthy young man receiving four months of massages and hot and cold packs.” I went on to say that people hate being dragged to jury service, and that a jury may be angry at both sides for not working this dispute out themselves. “The jury,” I concluded, “could even, conceivably, award nothing.” Plaintiff’s attorney grabbed his client’s arm, dragged him to the door and screamed, “You have no basis for those assertions; this mediation is over.” He then headed into the courtroom to set a date for trial.
At that point, my past experience and extensive subject matter expertise meant nothing. My immediate jump to an evaluative stance caused me to miss an important underlying fact, namely a complex attorney-client dynamic. (In this case, the two were long time family friends and Plaintiff expected his attorney to act like a shark.) What I should have done first, was to explore that attorney-client relationship. Second, based on those findings, I should have given this combative attorney ample time to posture in front of his client. And third, in a private caucus with the attorney, I should have asked him to give me a chance to tell his clients the true value of their case.
In playing the role of “agent of reality,” the mediator allows the attorney to remain in a true advocacy position thus ensuring the mediator has earned the right to apply his subject matter expertise to set the case back on track towards settlement.
By Scott Berman, SCMA Director www.scmediation.org