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Reflections on a Mediation: Blood, Sweat & Tears

By: Floyd Siegal, IAM Distinguished Fellow
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fjs@fjsmediation.com                                       Posted:  February 23, 2017

 

A closing workshop at an International Academy of Mediators conference was titled Transformative Moments in Mediation. Colleagues shared “war stories,” reminding all of us that every mediation involves real people whose lives have been impacted in a variety of ways by the events which spawned their conflict, and that every mediation could provide the opportunity to experience a transformative moment. This is one of mine:

The case was both simple and complicated. The plaintiff, a vibrant and active 77 year old man, had been walking home from his doctor’s office after a routine blood test when he was struck by an automobile while lawfully crossing the street in a marked crosswalk. The defendant, a young woman in her early twenties who was allegedly using her cell phone at the time of the incident, had acknowledged liability. However, her insurance carrier had rejected a policy limit demand, even though the plaintiff had suffered a collapsed lung, numerous broken bones and bleeding into the brain.

Facing potential excess exposure, the defendant personally attended the mediation, accompanied by her attorney and her mother. Within moments after I introduced myself, it was apparent that she had been suffering enormous guilt since the incident more than two years earlier.

After developing some rapport with the defendant, and believing it might help for her to express her remorse to the plaintiff, I asked whether she was open to meeting with him. She told me that she wasn’t up to it and I decided not to pursue the issue any further at that time.

Negotiations between the plaintiff and the insurance carrier were difficult and physically taxing, taking nearly a full day. Eventually, the carrier agreed to a settlement in excess of the policy limit, thereby relieving the defendant of any personal exposure.

After the settlement had been documented, I decided to once again ask the defendant whether she would permit me to arrange a brief meeting with the plaintiff, assuring her that I believed it would be cathartic. With encouragement from her mother, she agreed.

A few moments later, I brought the plaintiff into the defendant’s conference room. Before the defendant could utter a single word, the plaintiff — speaking with a thick Serbian accent and reminding me of the wise and doting grandfather we’ve all seen in the movies — told the defendant he had been praying for her every day since the accident because he knew how difficult it must have been for her all that time. He told her he understood that accidents happen and that he had never blamed her for what had occurred. He reached out to hug her, she accepted his embrace, and the tears began to flow.

The meeting probably lasted less than five minutes, but the defendant was instantly transformed. The weight on her shoulders and the cloud enveloping her had been lifted by a simple act of kindness — a good and decent man, anchored by his faith, understood that the defendant had experienced her own trauma and pain as a result of the events which brought them together more than two years earlier and, despite the severity of his own injuries, he took the time to express his genuine concern for her well-being.

Of course, the meeting could not have been arranged without the cooperation of their counsel, each of whom recognized that there was so much more to resolve than the amount that would fairly compensate the plaintiff for his injuries.

As indispensable players in the mediation process, lawyers should never lose sight of the role they can play in making mediation truly transformative. The results just might bring a tear to your eye.

© 2017 Floyd Siegal


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