[Editor’s Note: This article first appeared in Resolution Strategies back in November 2015. It was inspired by an extraordinary mediation that reminded me — and has continued to remind me ever since — that resolving a lawsuit and resolving a conflict are not always the same thing. More than a decade later, its message remains unchanged: sometimes the most meaningful moments in mediation have nothing to do with money and everything to do with humanity.]
One of the final workshops at the 2015 Fall Conference of the International Academy of Mediators 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 mediation can often provide the opportunity for a transformative moment. Earlier that year, I’d experienced just such a moment in one of my cases, and I shared the following story with my colleagues.
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 crossing the street in a marked crosswalk. The defendant, a woman in her early twenties who was allegedly using her cell phone at the time of the incident, acknowledged liability. However, her insurance carrier had rejected the plaintiff’s policy limit demand, despite his having suffered a collapsed lung, numerous broken bones and bleeding into the brain.
Facing potential personal exposure far beyond her insurance coverage, the defendant attended the mediation with her attorney and her mother. Within moments after I introduced myself, it became apparent that she had been carrying an enormous burden of guilt for more than two years.
Believing it might help her begin to let go of that burden, I asked whether she would be willing to meet briefly with the plaintiff and express her remorse. She quietly told me she wasn’t ready. Respecting her decision, I did not pursue the matter further at that time.
Negotiations between the plaintiff and the insurance carrier were demanding and exhausting, consuming an entire day. Eventually, the carrier agreed to settle for an amount in excess of the policy limits, eliminating any personal financial exposure for the defendant.
After the settlement had been documented, I decided to ask the defendant again whether she would allow me to arrange a brief meeting with the plaintiff, explaining that I believed it might be cathartic. WIth encouragement from her mother, this time she agreed.
A few moments later, I escorted 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, gentle grandfather we’ve all seen portrayed in the movies — told her he had prayed for her every day since the accident because he knew how difficult those two years must have been for her. He explained that he understood accidents happen and that he had never blamed her for what had occurred.
Then he reached out to embrace her.
She accepted his embrace, and tears began to flow.
The meeting lasted less than five minutes. The defendant was transformed instantly. The weight she had carried for more than two years — and the cloud that enveloped her — had been lifted by a simple act of compassion. A good and decent man, anchored by his faith, recognized that the defendant, too, had experienced trauma and pain as a result of the same tragic events. Despite the severity of his own injuries, he chose to express genuine concern for her well-being.
None of it would have been possible had it not been for the empathy and cooperation of counsel. They understood there was more to resolve than fairly compensating 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.
As always, it would be my pleasure to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.
Best regards,
Floyd J. Siegal