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.