1/3/2001

I. Introduction

The mediation of a personal injury claim involves the merger of two simple concepts. The principles of mediation derive from basic human instinct and experience, while recovery from a tortfeasor by an injured person springs from fundamental precepts of religion and morality. Like criminal law, tort jurisprudence rests on the theory that a wrongdoer should be held accountable for his misconduct. The mediation of a tort claim accommodates and unifies these two concepts in a manner which is beneficial to the parties and to society.
II. Torts For The Courts
A typical personal injury case calls for the examination of a single finite event and the adverse consequences, physical and economic, flowing from that occurrence. There must be a separate and distinct analysis of each of these components.
The issue of liability, most typically in the context of the common law doctrine of negligence, requires an understanding of the triggering event and the conduct of the relevant actors. This is of course a fact-loaded exercise, resulting in judgments as to the liability of the respondent(s) and any comparative negligence which might reduce or bar the claimant's recovery.
The damages component of a personal injury claim is also fact-intensive, involving the issues of medical treatment, physical and emotional suffering, permanent disability, impact on the claimant's lifestyle, and economic losses, including medical expenses and impairment of earnings.
In the case of a single claimant and a single respondent, the analysis of a personal injury claim is normally quite straightforward, though highly subjective in the evaluation of non-economic losses, such as pain and suffering. When multiple parties are involved, such as a claim by a passenger against two motor vehicle operators, the same approach will be applied, expanded as necessary to accommodate the extent and nature of the allegations.
Medical issues can become complicated by various factors invoking the prerequisite of causation, typically in situations in which the claimant has a prior medical history of injuries similar to those alleged in the subject event. Claims of aggravation as to a preexisting injury add a layer of complexity to the analysis, and the legal evaluator must look for, though not always receive, some guidance from the treating physicians in analyzing the relative contribution of the subject event.
Personal injuries can arise under circumstance which do not involve claims of negligence, but rather implicate theories of recovery such as product liability or medical malpractice. Claims in these areas, assuming liability is disputed, introduce the contributions of expert witnesses. Sorting out the opinions of opposing experts then becomes a necessary exercise in evaluating the strengths of the claimant's case and the extent of the respondent's exposure.
Each personal injury claim arrives in a fact package which is unique to that case. The relevant facts and doctrinal analysis are, in most cases, readily understood and easily managed. Given the subjective nature of damages in these cases, however, the ultimate issue of justice is another matter.

III. Who Gets The Keys
Any parent of two or more children has acted as a mediator of sibling issues, regardless of how compatible the disputants might otherwise be. How does one resolve the question of whether daughter Diane gets the family car to attend the movies with her friends on Friday night, or if son Daniel is given the keys for a date with his girlfriend? The instincts which surface in resolving such matters are human to the bone. They implicate principles of fairness, common sense, reason, respect, and justice. Seminars and textbooks can perhaps contribute to the skills of a mediator, but the successful neutral will rely more on his or her innate understanding of people, an ability to listen and empathize, and a capacity to gain the confidence and respect of the disputing parties.
Unlike an arbitrator or Judge, the mediator must never claim ownership of a dispute until the parties are willing to yield it. The process is one of guidance, gently or firmly applied depending on the circumstances and the nature of the key personalities. It is crucial that the owners of the dispute feel fully invested in the process and are given the opportunity to state their positions and, within the limits of decorum and respect for others, to vent their emotions. It is incumbent upon the mediator to emphasize to the stakeholders the costs, economic, emotional or otherwise, of failing to bring the controversy to resolution. This can be particularly difficult if the dispute itself has symbolic or psychological value, such as when it arises from the death of a child.
Every effort should be taken to make the participants comfortable, with soft drinks, juice and coffee available at all times. An aura of formality is generally not conducive to the mediation of a personal injury claim. Some neutrals, the author included, will attempt to enhance a spirit of cooperation and congeniality by addressing all participants by their first names. At the same time, strict care must be given to enforcing principles of courtesy, such as precluding interruptions and accusatory tones during the plenary sessions.
Mediation is a natural and humanistic process springing from the same tributaries of human experience as the law itself. Although simple in concept and structure, it can easily be obstructed by the mischief of man.
IV. The Complication Of Simple Things
In almost every case, the parties to a personal injury claim in mediation will be represented by counsel. This is both good and bad. The good derives from the role of counsel in organizing the materials coherently and presenting the claims or responses in a logical and rational manner. The bad emanates from the fact that, for the most part, attorneys have been trained in the adversarial method and sometimes become fiercely possessive of it.
A lawyer who views the dispute in terms of combat can become an obstructionist presence at the mediation table. He or she may be more invested in the concept of victory than in the objective of resolution. At some level of consciousness, a lawyer might perceive a financial interest in the continuation of the case which could impair his or her vision of a just compromise, placing the lawyer in a conflict position with the client or principal. More often, however, it is the attorney's yen for the stage that is the courtroom, and the taste for battle, that may inadvertently render his or her participation unhelpful in the private and cooperative process of mediation.
V. Resolving The Dispute
Prior to the mediation of a personal injury claim, the parties will have submitted their position papers, which will include pertinent hospital/medical records and reports. In cases involving complex medical issues, deposition transcripts of treating physicians or expert witnesses may also be included in the appendix to a position statement. By the time the mediation session is opened, the neutral will therefore have a hopefully comprehensive grasp of the factual and medical aspects of the case. It is essential that all decision-makers personally be in attendance, if at all feasible, since the dynamics of the process presuppose the sense of group effort and face-to-face exchanges which typically characterize a successful mediation. For the duration of the mediation, the adversarial relationship between the parties is conceptually suspended, and the dispute itself becomes the sole adversary of all the participants.
After outlining the protocol, methodology and objectives of the mediation, the neutral will ask for introductory statements by counsel. In most situations, it will then be appropriate for the individual claimant to make a personal presentation, normally through non-adversarial questioning by counsel and the mediator. The ability of the mediator to thereby assess the coherence, credibility and charisma of the claimant may be crucial to evaluating the human dynamics of the dispute. The impact of the claimant as a potential witness is a variable not readily apparent from the documentation and often of great significance in bringing resolution to the controversy. A seasoned mediator will utilize the relative witness appeal of the claimant, and also that of the respondent in disputed liability situations, as a lever in emphasizing a risk/reward analysis with counsel.
Experienced mediators differ on the question of whether a specific settlement figure should be advocated by the neutral. The preferred practice is for the mediator to evaluate a range within which fair, just and reasonable damages should fall, factoring in the risk of no recovery in those cases where liability is in dispute. In the caucus sessions with the individual parties, this range can serve as a context within which to discuss a mutually agreeable figure. Care must be given not to disclose confidential positions revealed in caucus to the opposing party, but degrees of confidence in making progress can be referenced to a range which includes the perceived or disclosed position of the other side. It should be understood by all that negotiating positions revealed at mediation are not to be used against an opposing party at any future proceedings.
In certain cases, a purely financial resolution may not be feasible. Sometimes it really is the principle that comes first. The resourcefulness and imagination of the mediator will be tested in such situations. In one case involving the lack of weekend supervision at a group home for individuals with emotional problems, allegedly causing a fatal knifing of one resident by another, the mediated settlement included a revised protocol requiring full-time weekend supervision at the home. This feature was critical to acceptance of the settlement by the mother of the victim. In another claim, involving fatal injuries to a young man who was killed in an alcohol-related one-car accident, the family of the driver endowed a Little League baseball field to be named in honor of the deceased youth. A defendant in a slander case, who refused to pay the plaintiff a nickel, was persuaded to make a substantial (tax-deductible) contribution to a charity of the plaintiff's designation. Sometimes a simple apology can be the extra element which brings an emotional dispute to final resolution.
VI. Conclusion
The natural and cooperative process of mediation should be encouraged in personal injury cases. The mediator must be familiar with normative settlement values in such cases and possess those interpersonal skills which elicit the respect and confidence of the participants. Patience, discretion and persuasiveness are attributes which will greatly aid the mediator in guiding the parties to a fair and honorable resolution of their dispute.

Back