Written by: Rodney Romano, Esquire
Sanders Case (real case, different name for privacy)
Q. If it’s not about the money, then why is one amount insufficient but another amount settles the case?
A. It could be that the plaintiffs are insincere and that it really is about the money, but it just might be something else.
I had a breakthrough today as a mediator and gained a profound insight, at least it is profound for me. What I learned was something I already knew in my intellect, but not in my gut. Knowing that all we can exchange in a personal injury settlement is money and sometimes an apology, I learned that a great mediator has to learn how to make money mean more than just money and has to understand what the parties really need to get from the lawsuit. Sometimes it’s the ability to pay bills or replace other lost income. Today I learned that it can be a measure of fairness and of respect for the terrible emotional vacuum created by a profound loss.
19 year old Billy Sanders was driving his motorcycle northbound at night on a four lane divided highway where the speed limit was 45 mph. He was approaching the intersection – probably at 50-60 mph - traveling in the lane closest to the median. Mrs. Bundy was stopped, facing southbound and preparing to execute a “U” turn to travel northbound. She saw three headlights, presumably Billy’s motorcycle and another car. She misjudged Billy’s distance and speed and, thinking she had enough time, began her “U” turn. The forensic evidence showed that Billy laid down 40’ of skid marks, then went down and slid into the right rear of the Barrett vehicle. He died instantly.
You may assume that liability is contested but that the strongest argument places fault on both drivers.
You may assume that both lawyers are highly competent, well respected and capable trial advocates.
You may assume that the claims adjuster is experienced, well informed and very capable at risk analysis.
The initial demand was just over $5MM and the initial offer was $750K. In my opinion, the offers reflected recognition of the significant risk of a plaintiff’s verdict with significant comparative negligence on the decedent. As we got into a realistic seven figure range, I became confused when the plaintiffs said they wouldn’t take anything close to the lower end of the range but would take the high end of the range. I was convinced that the plaintiffs were sincere when they said it’s not about the money. So I asked myself: “if it’s not about the money, how come another million dollars will settle the case but the current offer will not? Arguably, the discussion range was well within a probable jury outcome and both sides knew that. Both sides also knew there was significant risk for a jury verdict well outside the range. Both sides had the financial strength to take the risks.
Unable to think of any other alternative to impasse and knowing the emotional toll a trial would add to the considerable loss already suffered by the parents, I took a chance of offending the father and asked him as gently as I could “if it’s not about the money, then why is one amount not acceptable and another is?” I was afraid he would explode at the challenge and the mediation would be ended in anger, but saw no other path.
Instead of reacting in anger, he looked at me with the kind eyes of a father who realized that I could not possibly understand what he was feeling but appreciation that I was trying. He answered calmly and quietly, fighting back his heartache. I believe that his answer will change my practice profoundly. He said: “It wouldn’t be fair. My son got thrown under the bus once and I will not let him get thrown under the bus again.” Wow! Money was just a gauge for him to tell whether he thought the defense was doing the right thing or just trying to buy a cheap settlement. He was honoring his son’s memory. There will be no “closure” and this loss will never be “behind them.” But a perceived fairness in the form of the offer, will allow the parents to feel that they didn’t let their son down.
Maybe this is no revelation to many experienced mediators, but for me it is a breakthrough moment in my career. I learned that while money is the only thing we can exchange in personal injury cases, it can be used to represent many things that participants need beyond the financial security it provides, things such as fairness, closure, acknowledgement of loss. I learned that sometimes the mediator has to ask questions like “how can I use this process to help you achieve what you need?” and “I know this will never be right for you no matter how much is paid, but how can this mediation help you get to the next step?” Just a little patience. Just a little compassion.
So what happened? The plaintiffs compromised significantly but dug in a million dollars above the carrier’s last, best and final offer. While respecting the confidentiality of the caucus, I conveyed my thoughts and observations and reasons why it might make sense for them to reevaluate their position. The case adjourned for one week to allow for reevaluation and with diligent follow up, settled without further litigation. Mr. and Mrs. Sanders and their two surviving sons will have a hole in their hearts for life. This will never be behind them. But in some small way the mediation process became a tool to acknowledge their loss and honor the son and the love of his family.