This is another in a series of vignettes, culled from mediations conducted by the author. In this vignette, a young woman loses her family and hope and the mediator stumbles to ascertain interests.
When the plaintiff’s lawyer called to set up the mediation, she said that there could not be a joint session: that the widow was much too emotional to meet together. Further, the lawyer said, my preference would be that you not engage the widow in any conversation about the incident because she is just too fragile and her doctors have said that it is not helpful for her to talk about it. Well, I said, why don’t you send me the submission we discussed and we can talk about the details as the mediation gets closer. My position isn’t going to change later, said the lawyer. I will be very uncomfortable with you talking with her about the accident. She is just too traumatized. My goodness, John, she lost her entire family: her husband and two children.
The plaintiff, the widow, was in her early thirties and her nightmare began about two years ago. She lived about three miles outside of Bluffton, Indiana and was driving home from an evening meeting at the school her five old son and seven year old daughter attended. It was December, two weeks before Christmas and the snow was starting to blow and drift across the county road to their house. She told me later, after the mediation, that she loved to drive the country roads in Indiana at Christmas because of the Christmas lights. All the corn is down and you can see for miles in all directions and you’re just driving along, worried about that or thinking about this and then you’ll notice a farm house, far off across a field and there are colored lights along the roof line and around the windows in front and maybe a bright white star high on a silo and it seems to bring hope, promise. I mean, she said, those people could be a young family, like we were, and maybe they had money problems or someone was sick or maybe it just didn’t live up to the dream. But each year, they put up those Christmas lights and that means hope, that they have hope and maybe even faith that things will get better, that things will work out. I imagine, she said later, that they put those lights up every year and that there are probably even nails that are just left, used year after year.
But this night, the roads were too bad to look around much. It was slick and icy and just as she passed a small convenience store, her car slid off the road and lodged deep in a drift. She didn’t have a cell phone so she trudged back to the store and asked the cashier if she could call her husband. She was only a mile or so from home and he could come and probably push her out. I’ll be right there, he said, your mother is here but she’s just leaving so I’ll have to bring the kids and it will take me a minute to get them all ready.
She went outside to wait but too much time passed and he wasn’t there. More time passed and when she called, there was no answer. He should have been here long ago. And the storm had cleared and the snow had stopped and he had a four wheel drive so he should have been here long ago. Do you want me to run you somewhere, the cashier asked. I’ll be closing in a while. And just then she saw the state police car slowly pull into the store lot and she told me later that she knew right then, that instant that her family was dead. Of course she could not have really known it, but she said she was certain, that it just hit her and when the trooper told her about the accident, she didn’t even really listen. She said she seemed to already know about it, even the details. The trooper told her that he needed to take her to the county hospital, that her husband’s car had been involved in a collision with a semi truck. He would not tell her more, or whether there had been injuries or how everyone was. But when she got to the hospital, there was a minister there and he told her about what happened.
Her husband’s car was pulling across the state highway and was struck broadside by a fully loaded sixteen wheel tractor and trailer. The state police later determined that her husband had the right away but the truck driver said his brakes did “not catch, not even a little bit”. Tests later showed that the brakes were faulty and had not been maintained properly. Her husband and two children were killed.
When I greeted her at the door on the day of the mediation, I was struck by how tiny she was. She trembled a little and her hand felt like a shadow when she offered it to me to shake. I had convinced the lawyers that it would be good to meet together at least for me to go over the mediation process and guidelines. She made no eye contact with anyone during that joint session and said nothing when I showed her and her counsel and mother to a private room. The morning was taken up shuttling back and forth but spending most of the time meeting with the lawyers for the trucking company and the lawyer for and representative of the company’s insurer. There was a very large self insured retention and some minor coverage issues. Also, the defendants were arguing that the husband was at fault for pulling out. The evidence was clear, however, that the trucking company simply failed to follow even basic safety inspections of its trucks.
At about three o’clock in the afternoon, the widow began to talk a little in the private sessions. I don’t like your earlier demands, she told her lawyer. I want to demand more. I want five million for the death of my husband and two million each for the children. No, she said, I want six million for my husband and three million each for the kids. When she said “kids”, she started crying for the first time. Well, said the lawyer, we can change the demand. Wait, she said, I want money for his family also. For his mother and sister. We’ve talked about this, said her lawyer. I’ve told you about the limits on what we can claim. I don’t care, she said, I want, eight million each for all three and I want…
Brian Greene, one of the world’s leading physicists, writes in “The Fabric of the Cosmos” about the theory that what we see, what we experience, might be holographic projections of two diminsional realities. Greene writes; “The shadows- the things that are flattened out…are real, while what seem to be the more richly structured entities…are evanescent projections of the shadows.” Without wanting to get too far out on a far out limb, it seems interesting to think about the statements and expressions of disputants as the projections of their underlying “real” feelings and thoughts. When Carol went back and forth, from position to position; when she repeatedly changed her mind about what she wanted, how much she wanted, perhaps I was seeing the hologram and missing the shadow. Sometimes the amount she said she wanted went up, sometimes down. Finally, on one trip back to her room, it occurred to me that I was missing how much the shadows of her grief and her fear were being projected into loud and inconsistent holograms of wants and positions. I realized I had yet to really explore her “interests”. In the next private caucus, when she said she wanted twenty million dollars to settle, I called her Carol and asked her what she would do with the money. Without a pause, she said, I’d give it away. I don’t want their money.
The dynamic of the process changed at that point and we continued to talk, Carol and I and her mother and lawyer, until about ten thirty p.m. What is the lawsuit really about, I asked and you can guess at her answer. She thought about the question -as if for the first time- and finally she said; I guess it’s about making sure it doesn’t happen to someone else and, I guess, it’s about making sure it all wasn’t just for nothing.
And the case settled around midnight: not for the many millions she had been talking about, but for a large amount of money and, as importantly to her, with an agreement that the trucking company would start a training program for its drivers and mechanics on brake maintenance. The defendant agreed that a picture of the accident would be posted in all the company dispatch offices, with a warning: here is what can happen if you don’t maintain your brakes. Below was a detailed checklist for drivers and mechanics to follow.
I got a Christmas card from Carol a couple of years after the mediation and she invited me to call her and I did. She told me how she was getting along, that she was getting better. She also told me that when she is some new city, she still checks the dispatch offices of the trucking company to make sure the signs and checklists are still up.
I also asked if she put up Christmas lights this year. She said, no, not this year. Maybe next.
Names and details in these vignettes have been changed or altered to protect
and preserve confidentiality and privilege.
The subject of private judging and maintaining confidentiality in settlement agreements was in the news again today, this time in the Los Angeles Times article "Prying into Judicial Secrecy." The article...By Victoria Pynchon