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Observations While in Civil Mediation

Observations While in Civil Mediation: Today!

In all civil cases (not criminal), Indiana trial courts generally require the parties attend and make a good faith effort at mediating the matter before coming a trial. This is particularly the case where the hearing is expected to take more than two or three hours. Many trial courts have this in their local rules. It is not a denial of constitutional right to access to Indiana courts to first required mediation.

There are several sound policy reasons for this. First, given the sheer volume of cases filed in Indiana’s trial courts each year the courts are overworked, and mediation is a way to resolve matters outside the courts. A statistically significant number of cases settle in mediation—often ones that seem impossible to resolve. Ultimately, this saves taxpayer dollars and the need to create new courts.

Second, mediation promotes efficiency in the legal system. Depending on the type of civil cases, there will be multiple players in the mediation process. Certainly the parties and their attorneys will be in attendance, as well as a third party neutral mediator. Sometimes, in cases of personal injury there are non-parties (one party has brought in a non-party because that third party has some culpability in the matter) and insurance agents (because often insurance companies have to money to fund many settlements). This gathering of all parties and key people provides an opportunity to resolve a case in real time in a way that no other type of out-of-the court room dynamic does.

Today, in mediation, I had the opportunity to make some additional real time observations that are sometimes forgotten beyond the moment. I hope these help you if you face mediation.

Legal focus on Insurers version the emotionally aggrieved

Insurance companies may sometimes be present at mediation, usually in matters involving injury. These are insurers for parties, and generally are not as involved as the parties and their attorneys throughout the discovery process, but are brought in and updated about the case just prior to mediation.

The insurance business is largely based on statistics, probability and fault. At the end of the day the insurance company is in a profit business, they do not want to pay out funds (an insurance settlement) unless they have to. In addition, the insurance policy likely has a policy limit, and is strictly approaching mediation with dollar amount in mind (reserved upon making a claim) and not the emotional investment the parties have in the matter. It is easy to take the reduction of your case as a personal insult. It is not.

Why your attorney may ask the mediator questions about his or her view

Your attorney, throughout the mediation process, will often ask the mediator his or her view point on several matters. This is not because your attorney is not knowledgeable in the matter, but rather because your attorney is attempting to gain some valuable information from the other side or the mediator’s years of experience in mediating other similar matters. Depending on the offers from the other side, you and your attorney will gain valuable information as to the strategy and strength of the other side’s case. This information is invaluable to settlement and/or trial strategy. Since the mediator is a neutral party, he or she will be relaying information between the parties in attempting to settle the matter. Additionally, the mediator, in his or her experience mediating hundreds of matters, can tell you the strengths and weaknesses of your mediation position as he or she observes to help you with your attorney decide whether settlement is prudent, which will prove helpful in knowing how far to push in your settlement offers.

Money versus the Principal of it

Often when an aggrieved party has been injured, whether it be physical or emotional, they want some retribution, relief that the legal system cannot give, or have a non-legal objective. This is hard relief to obtain at mediation. Money may not heal all the wounds of the injury, most especially in matters of emotional or psychological injury. This presents a difficult dynamic at mediation and to courts if the matter is taken to trial.

The goal of damages is to put the injured party in the same position as if the injury had not happened, meaning to make the injured whole again. When the injury is emotional, money simply will not do. Often the injured, or in other words, the victim, also wants the other side to 1) admit wrongdoing and 2) make changes so that no one else is injured in the future.

Unfortunately mediation, and the courts, cannot make an ethical or moral wrong into a right. The only remedy is money. This presents a difficult dynamic, as no amount of money will ever be enough. Many injured persons will fight and fight on principal, they just want someone to know they were wronged, and they want the wrongdoers to change. This could ultimately result in an ongoing legal battle that drags out the healing process and is never resolved.

Speculative Damages

Courts (and juries) and mediators alike like black and white numbers. For example, in a personal injury case, if a person loses a leg, what are the costs of the medical bills? And, what loss of income will occur due to loss of mobility? These figures can be added up to determine what the appropriate dollar amount to be paid out to the injured party. But, what if the injury is not physical, but rather emotional? How does one determine the costs of future emotional and psychological problems that may never get resolved? Is it the cost of therapy?

When the courts, and mediators, are presented with injuries that have no tangible value, meaning you can’t just add up the medical bills and loss of income, the damages are considered speculative. Courts generally do not like speculative damages, everyone has heard of many exorbitant jury verdicts awarding millions to someone with a seemingly menial injury. But, for just as many cases where the award seems too high, juries will return no award of damages, simply because they cannot calculate it. Juries will often recognize an injury has occurred, but will not know how or why to award any specific dollar amount.

The Math of Settlement

Ultimately, mediation comes down to a “game” of math and statistics. Each side must weigh the strengths and weaknesses of their case against the costs of going to trial and the probability of prevailing over the other party. And the possibilities of Sometimes settlement is not about who is right and who is wrong, but rather, how much will it cost to not go to trial, versus how much a trial will cost.

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