Grace Louise was four years old, curly blond hair, a bright red dress with an orange bow. Her grandfather got her the dress in Mexico. She tried to say “Puerto Vallarta” but didn’t come real close.
She was kneeling on a chair looking out of the conference room window, watching barges push coal along the muddy Ohio River some twenty floors below.
“On the other side of the river, Grace,” I said “that’s the great state of Indiana.”
“That’s the North, honey.” Her mother told her. “You’re a Southern lady.”
And she was, or clearly would be. A light knock on the door and the lawyers and party representatives from the defendants’ side filed into the room. You could see hints of easy charm and pose to come as Grace was introduced by her mother to the stream of dark suited litigants.
“Mr. Sheridan, may I introduce our daughter, Grace Louise.” She probably said “our” out of habit.
Grace would put out her hand, make eye contact and respond with a “Nice to meet you.”
“Mrs. Adams, may I introduce our daughter, Grace Louise. Mrs. Adams is the lawyer for your Daddy’s company, Grace.”
On and on through the line of eight to ten people, Grace Louise formally met the participants in the mediation to be held that day in connection with the law suit over her father’s death.
Grace’s father was crushed to death when a brick wall collapsed during the construction of a medical office complex being built by the construction company that employed him and in which he owned the majority interest. There were three defendants in the wrongful death law suit brought by Grace’s father’s estate, two subcontractors and the architectural firm. All defendants had experts who had testified in depositions that the collapse of the wall was caused solely by the negligence of Grace’s father’s company, and, therefore, his exclusive remedy was workers’ compensation.
Because of these experts, each team of lawyers for the defendants had taken a very aggressive stand in previous settlement negotiations, offering only nominal amounts.
These lawyers were now lined up, dutifully meeting four year old Grace Louise. She was much more relaxed than they were.
Several of the lawyers noted to Grace’s mother that they had a child or grandchild about the same age as Grace. It’s difficult to determine what someone is really trying to covey with such a statement. Perhaps, it’s something like “This is an awkward situation and I’m your adversary but I have a child and, therefore, can’t be all bad.”
After all the lawyers and party representatives had met Grace Louise, they were ready to move on. They were clearly uncomfortable just standing around, trying to make conversation with each other or with Grace or her mother. This was not a dynamic they had prepared for. They were anxious to get in their seats, a comfortable table top away from the family.
There was almost a sigh of relief when Grace’s mother told everyone that Grace’s aunt would now be taking her to her pre-school.
At the end of the long, intense day, the parties were closer in their negotiations than many had anticipated coming in. But there was still a gap of almost a million dollars and settlement seemed unlikely unless the defendants were willing to further materially alter their evaluations. The parties went back and forth a couple of times and late in the evening the mother and the estate proposed an amount for settlement that they said would be their final position and which was a substantially higher amount than any of the defendants had ever considered.
The defendants caucused and reviewed the negotiations. Nothing new had been presented, said one lawyer. There are no new facts, said another.
Then one defendant’s representative stated that she thought they should meet the demand and settle.
Another agreed with her. “But, wait…” said the third defendant, “nothing’s changed. The jury won’t see or hear anything we haven’t fully anticipated and evaluated. There is no reason to settle.”
The rest of the defendants group that clearly now wanted to settle all looked at each other and nodded together when one of them said:
“The jury will see and hear Grace Louise and that’s reason enough for me to settle.”
Names and details in these vignettes have been changed or altered to protect
and preserve confidentiality and privilege.
The question whether mediation should be "fair" or "just" elicited the following thoughtful response from one of our attorney readers, who, as you can tell from the context, primarily represents plaintiffs...By Victoria Pynchon