Sunday, November 23, 2008

“It’s Not about the Money”


I once witnessed a plaintiff’s attorney get up in closing argument following a personal injury trial arising out of a slip and fall and tell the jury that from his client’s point of view, the case was “not about the money.” The defense attorney seized upon this assertion and used it to deride the plaintiff who was asking for a considerable amount of money on a relatively modest soft tissue case.

By the time a case gets in front of a jury, money has usually become the predominant interest, but in the context of mediation, the litigant’s real interest may not always have a dollar sign in front of it.

The plaintiff in the aforementioned slip and fall may have made a decision to contact a lawyer because the store manager appeared dismissive or unconcerned. Numerous times as a mediator, I will hear a party summon up anger or some hurt feeling associated with the conduct of the other party that is essentially irrelevant to the merits of the case but either led to a decision to sue or impeded their willingness to settle.

Common examples in mediated matters include curtness or lack of concern by the driver in a motor vehicle accident; a dismissive attitude on the part of a claim representative; perceived unfairness when trying to settle the property damage part of a claim; a defendant’s failure to return phone calls.

An early experience of feeling disrespected, not being taken seriously or being treated unfairly may be why a litigant is resisting what otherwise seems like a reasonable offer. If these underlying motivations/interests exist, bringing them to light and acknowledging them may allow the mediation process to move forward.

1 comment:

Bruce Nye said...

While it's helpful for a mediator to point out these non-monetary issues, I think it's incumbent on the advocates in a mediation to keep an eye out for this sort of thing. After all, they know more about their case going in than the mediator does. And there are cases where a plaintiff becomes overwhelmingly and sometimes irrationally obsessed with the injustice of what has happened to him or her. In such cases, particularly if they are cases of obvious liability, there is little down side to beginning the defense presentation with "First of all, [client] has authorized me to tell Ms. [plaintiff] that they are terribly sorry about what happened here, and they have sent me here with instructions to try to make it right." Even when liability is disputed, if there is a real injury, there is nothing wrong with something like "[Client] has asked me to convey that, while we may disagree about who was at fault for this incident, we are terribly sympathetic to Mr. [plaintiff]'s situation, and we are here to try to see if we can reach a compromise that will work for everybody."

This sort of thing isn't for every case, or even most of them (and it certainly isn't for the no liability no injury case), but for the 1 in 10 case where a big motivator is something other than money, it can -- among other things -- sometimes save the defendant some money.