WHAT IS MEDIATION?

Ironically, I decided to write this post during a mediation. Mediations have a lot of dead time—time when there isn’t much to do other than to occupy one’s mind—sometimes in a productive and worthwhile manner, other times on ESPN.com or browsing the Columbian and other news outlets.

Despite the down time, mediation does serve an important function in litigation. To answer the titled question simply, a mediation is a formal and structured opportunity to resolve a lawsuit. In a typical mediation, one party sits in one room, the other party in another room, and a mediator will walk back and forth between the parties to try and settle the case. Mediators do this by building and developing a relationship of trust with both parties and then helping each party to better understand the case—the good and the bad.

In a personal injury case, like most cases, the mediator might come in and talk to the injured party first. He or she might discuss the party’s background and experiences in an attempt to learn about and better understand the person—what makes my client tick. Then the mediator will leave, and go and talk with the insurance company representatives and/or the insurance attorney. The mediator might be gone for 30 minutes, or several hours. During this conversation, the mediator is both establishing rapport with the insurance company representatives and may begin the process of trying to get the case settled. He or she might identify key issues that increase the value of the injured party’s claims. The mediator might offer criticism of one or more of the insurance company’s defenses in the case. After speaking with the insurance company’s representatives, the mediator may ask for a “number”, or an offer of money to get the case settled. Armed then with the offer, the mediator then returns to the room with the injured party.

Right now, it is 11:20 in the morning. We started this mediation at 9:30, and as I write, I’m still waiting for the step I just described to occur in today’s mediation. We talked to the mediator this morning from about 9:30 until 9:50, and have been sitting waiting for his return since that time. When he gets here, I expect that he will offer his understanding of the key issues in our case and explain why our case isn’t as solid as I think it is, and why the risks are greater than I think they are.

Actually, at 11:35, the mediator just poked his head in to tell me that the other side is being totally unreasonable and he’s still working with the insurance company representatives. After less than thirty seconds, he left again. It’s how it goes with mediation, I guess.

This is how today’s mediation will go. The mediator will go back and forth between the parties and will try to get us to accept less money to settle the case and will try to get the insurance company to offer more money to settle the case. At the end of the day, that’s his job. A good mediator settles cases. Like a closing pitcher brought in to pitch the ninth inning, his job is to end the contest—to resolve the case.

It’s now 12:20. All of the stomachs and most of the cell phone batteries in my room are nearing empty. We’re hoping for an opportunity to at least ask the mediator whether we can go to lunch—we don’t want to miss him if and when he finally comes in. So, we continue to wait.

12:35, we just got permission from the mediator to go “get a quick lunch and come back.” It’s going to be a long day.

The clock is nearing 2:00. We long ago finished our burritos from a nearby restaurant. The mediator just came in to advise the insurance company still is not offering any money. The funny and unique thing about this case is months ago the insurance company agreed with us, in writing, that all $20,000 of my clients’ medical bills were related to the injuries sustained in the collision, all of my clients’ medical treatment was reasonable and necessary. The insurance company agreed that the $12,000 estimate to repair the damage to my clients’ vehicle was a reasonable estimate—in fact it was their estimate. Yet, they still refuse to put any money on the table. The mediator is growing as frustrated as we are. The mediator has to remind me that the insurance company representatives invited us to mediation and urged me to be patient—he’s “working on them.”

What is mediation? This is mediation. One can never really appreciate the meaning of the term until they’ve sat in a conference room all day waiting for an insurance company to put a reasonable amount of money on the table. Or in this case, to put any money on the table.

2:30 and we finally got an offer. It’s unreasonable, woefully so, but it’s a start. It’s the first time the insurance company has offered any money on this case. A case that has been going on for two and a half years now.

We’ll continue like this for at least another three hours most likely. Maybe we’ll settle the case today, maybe we won’t. But one thing for certain, a description of today’s mediation is exactly how I would define a mediation for someone who asked.

It is now the morning after the mediation. At 4:15 we told the insurance company reprsentatives that it had until 5:00 to accept our last best offer to resolve the case. It represented, by my professional calculation (and by the mediator’s expressed opinion) a reasonable value on the harms and losses my client suffered. At 4:50 the mediator returned asking us to hold the offer open for another 48 hours to allow the insurance company representative to get additional authority from his supervisor. I reminded him that my clients had waited for two and a half years for this insurance company to offer any amount of money and that with trial barely over a month away, that we didn’t have 48 hours before we had to be talking with medical doctors and other experts and preparing our case for trial. The mediator urged us to reconsider. Ultimately, we decided that we would allow the insurance company until 1:30 this afternoon to decide to settle the claim. So now, my clients and I continue to wait.

I just received an e-mail from the insurance company’s attorney to advise that they will pay the amount our client asked for.

I guess this is what we lawyers call a “successful mediation.”