During mediations, I often attempt to put myself into the shoes of the people I try to bring to common ground and imagine what I would have done in their place. Recently, I had an opportunity to experience the plaintiff’s side of mediation firsthand.
Three weeks shy of the two year anniversary of filing my case against Allstate on a minor fender-bender, the court, as it often does, appointed a pro-bono mediator. Our mediator, whose name I will keep anonymous to save face for this poor soul, showed up on time and actually ended up waiting for us to arrive in the conference room.
The mediator began the process by simply being extremely annoyed by the fact that no one submitted a brief to her and that she had no facts about the case; however, that did not stop the mediator from going forward without asking either side to simply explain the details of the dispute. Rather she was using the lack of the briefs to discredit both attorneys every possible chance.
Observing this behavior did not make me feel as if the mediator would be able to keep a neutral position in extreme situations. Unfortunately, my fears were not subdued as the mediation continued. During “Round one” of caucus, before any demands or offers were on the table, I, the client and the true problem in the eyes of the mediator, was listening to her state all the problems with my case and how I would save money and avoid risk of litigation if I settle my case today. The mediator was trying to talk me into a nonexistent deal even before she knew what I wanted or what the defense was offering. A pretty common spiel, however, in my humble opinion, should not have come until much later in the process.
Twenty minutes later, we were asked to step out of the room in order to switch places with the insurance adjuster and the defense attorney, but not before the mediator told us all about her 85% settlement rate and professional background. Although that gesture was meant to establish our trust in the mediator, instead it came across very smug making it even harder to ignore her self-imposed image and trust her true negotiation skills.
Five to ten minutes later, we were asked to step back in. I was expecting to get an opening offer from the defense; however, I quickly realized that it was not the case. Without going into much detail, the mediator told us that unless we made a demand the mediation would be terminated. She also added that we were already costing her, the mediator, hours of paid work.
Again, as a client, I immediately sensed that this neutral was leaning far towards the insurance company and that she was not at all impartial. The worst part about it was that it seemed like there was no attempt to conceal that fact. I also thought that she was so concerned about promoting her self for the next mediation that she had actually forgot about the case at hand.
After much deliberation, we decided to ask for the policy limit just to get the ball rolling as terminating the mediation was not something I wanted to do. But even then, it did not get any easier, because it seemed that the mediator (and I use this term loosely), did not agree with our move. However, she would not make an alternative suggestion. Furthermore, the mediator told me that it is not her job to be our advocate in the mediation.
I felt conflicted by those actions and began to realize it was in the neutral’s interest to terminate this process as soon as possible. I had even gone as far as asking whether there was a place she would rather be, but as predicted she responded with nothing more than her regular hourly rates.
My attorneys were finally able to convince the neutral to simply act as a messenger and convey our positions without any opinions or so called help in order to bring this disaster to an end. And end it did.
Fifteen to twenty minutes later, after the mediator tried to terminate the process once again, we had decided to bring in the defense for a joint session. Our goal was to find out what would be the highest number they would pay today in order to settle this case. No sooner than hearing their response the client in me started to get a mind of his own. I wanted more; it did not matter to me whether or not this was a legitimate offer, or if it made sense for me to take it. I wanted more money for my suffering.
After taking a short private break in order to consult with my attorneys, I had returned to the conference room table and in a very diplomatic way had asked for an additional one thousand dollars. Without a millisecond of hesitation of my request, the mediator had collected all her paperwork, got up and left for the door, taking our signed confidentiality agreement and not even allowing the defense to give a response.
I felt cheated, cheated out of a fair chance to get my case settled. It was always my understanding that the only reason our profession exists is because people cannot communicate between themselves. But what good is a mediator if even she cannot communicate between the parties?
Later that day, I also realized that there was a presence of another conflict - a conflict between the mediator and me. I did not want to give the neutral the satisfaction of settling my case after she had blocked all the open roads with wasted time and more than biased attitudes towards my case and me, personally.
But it was not just me, at one point even my attorney asked our neutral that if at anytime in the future his law firm appeared on one of her cases, to please send the case back to the Superior Court and never work with his law firm again.
In my past mediations I have always tried to have both parties leave happy, because I do not want to believe that a good mediation is when both sides leave unsatisfied. But even if the parties did not settle, I have to know that I have provided them with enough time to realize that they and I have done all we could to bring their case to a close. As someone who experienced being a plaintiff himself, I can now say that it is not easy for a client on either side to accept the right thing to do. But it is our job, the job of the mediator to give them the best possible chance to make a well informed decision. And maybe I wrote this because I am angry at my unfair chance to a fair settlement, but regardless of the reason, I hope that reading this gives you an understanding of what a plaintiff might feel and what a mediator should not do.