Personal injury lawsuits are a category of disputes marked by several unique characteristics that must be taken into account by the mediator. While the underlying facts may vary from case to case, the great majority of injury cases have much in common, starting with the dissimilarity of the parties.
Plaintiffs come into the mediation having sustained a traumatic physical injury or the death of a loved one. The physical injury or loss is often accompanied by psychological injuries. Plaintiffs’ injuries are indeed personal; their losses are real and tangible. Emotions tend to run high, especially in cases of significant residual disability or death. Plaintiffs often regard the “system” (comprising insurance carriers, their counsel, and the legal process in general) as impersonal and insensitive to their loss. Defendants, on the other hand, are only tangentially involved in the mediation because they are rarely the real parties in interest. Rather, it is liability insurance carriers, whose stake in the dispute is primarily financial. Carriers’ representatives at the mediation are typically professional and bottom-line oriented.
A major challenge for the mediator in this context is to bridge the gap between the disparate characteristics of the disputants. In my experience, the most effective strategies to this end are plaintiff-oriented. I say that recognizing that, for most plaintiffs, the personal injury lawsuit is their first involvement in the legal process. They will have a fairly steep learning curve and the mediator must not only help with the learning process but allow sufficient time for it to be absorbed. Often, the mediation will be the plaintiff’s first opportunity in the legal process to tell his or her story, to express pent-up emotions, and to “confront” the adversary. While the insurance carrier’s representatives may be prepared to negotiate immediately with the emotionally distraught plaintiff or plaintiff’s family, it is of the utmost importance for the mediator to allow adequate time for the plaintiff to prepare for what the negotiations will entail.
There are several points worth considering when laying the groundwork for negotiations in the personal injury mediation.
- The old brain will take over. Whatever cathartic effect plaintiff’s “retelling the story” may have, neuropsychological research tells us that a plaintiff’s reliving a traumatic episode may overwhelm the executive functions of the brain, making rational negotiation impossible. So, allow time for the emotions of “retelling the story” to subside.
- Personalize the process. Because, for most plaintiffs, the legal process is cold and impersonal, the mediator must work to personalize the process. Sufficient time should be taken to learn about the plaintiff (in a death case, the plaintiff’s loved one) and what effects the injury has had on him or her. Explain to the plaintiff that the upcoming valuation of the case for settlement purposes will take into account many factors unrelated to the injured person (e.g. the rules of evidence and procedure). Valuing the case for settlement purposes is not valuation of the worth of the injured or deceased party.
- Apologize. Before entering into monetary negotiations, the mediator should consider apologizing to the plaintiff for the dehumanizing process that is about to take place. Trying to put a dollar figure on human misery can send a very wrong message. Take time to explain that financial compensation is an imperfect remedy, but the only remedy given to us in this situation.
- Put it in the rear-view mirror. Finally, the mediator should point out the significant emotional benefits that will come from resolving the case at the mediation and putting the painful experience in the past. This is a mediation objective with which nearly all personal injury plaintiffs identify.
The problems presented by the dissimilarity of the parties to the mediation of a personal injury lawsuit can be overcome. But, as the title suggests, it takes time. My cardinal rule in mediating litigated personal injury cases is to allow sufficient time, as laborious as it may be, to lay the groundwork for successful negotiation.