I recently conducted a mediation involving injuries to a teenager. The case settled, so my conscience should be clear. However, during the process I fell into the trap of letting impulse overrule reason. I never received a complaint, and both sides left the proceeding happy (or at least equally unhappy, as mediators are prone to predict) but my conscience told me afterward I had slipped, with the best of intentions, but slipped nonetheless.
The young lady had a not very visible scar on her upper lip, purportedly caused by an auto accident, liability for which was attributed to the insured defendant. Fairly routine case, as auto accident cases go.
During opening statements, plaintiff’s counsel presented a persuasive and well reasoned argument in his client’s behalf, emphasizing in particular the serious and permanent nature of the scar on her upper lip. He described the scar as "ugly." When he did, I instinctively looked at her. Mary [not her real name] was a very attractive young lady, 16-years old, and I wondered what her silent reaction was to his reference to this lifetime defect to her beauty.
It was during the first caucus with plaintiff and her counsel that I expressed the inappropriate comment, stemming from a purely emotional response to the attorney’s characterization of her injury:
"Mary, I have to tell you you are pretty enough not to have to worry about your social life with that scar. I can barely notice it."
Now, Mary’s counsel may well have prepared her, for purposes of her claim, for some hyperbole in his description of the scar, but I did not think about that at the moment. In the eyes of her attorney, and possibly to her mother who was present, it probably seemed this mediator had diminished, at least in his own mind, the value of Mary’s claim, and, perhaps, was not as impartial as he had assured everyone at the outset he would be.
In fact, I was and remained impartial during the duration of the proceeding—the other side certainly never enjoyed the benefit of my comment—but perception, as we well know, can sometimes override reality.
A lesson learned. Mediators can and should empathize, but they must remain dispassionate and check the emotional, albeit natural, impulse.