Settlement Unicorn Appears in Malpractice Mediation!
If you've been following the conversation between Settle It Now and Max Kennerly's Philadelphia Litigation and Trial Blog, you'll know that a "settlement unicorn" is composed of "two hostile parties on the verge of a lawsuit [who] get lawyers, almost file suit, and then, through deft representation, settle their differences peacefully and move on."
I believe in Unicorns and Max doesn't so I've promised to keep my eyes open for appearances of that storied creature. Previously, I have reported the Unicorn's appearance here (community mediation; potential lawsuit, no lawyers); here (litigation + lawyers who send the parties to community mediation); and, here (litigation + lawyers + clients who seek mediation without lawyers to resolve dispute).
Today, I have a story of the Unicorn visiting the mediation room in a litigated case -- a case of the type that my (new) friend Max Kennerly suggests will not attract that shy beast because:
The parties to a lawsuit do not have intertwined interests: they have directly adverse interests. Unless there's some possibility of a future relationship, the defendant doesn't want to resolve the conflict: they want the plaintiff to drop their frivolous claim. In their mind, their best alternative to a negotiated agreement ("BATNA") is for the plaintiff to crawl in a hole and die.
[My Comment: the "intertwined interests" all parties to litigation have is the litigation itself with its attendant cost, delay, and, uncertainty, not to mention the discomfort "ordinary" people experience when plunged into the foreign environment occupied by attorneys with their strange "causes of action" and "affirmative defenses," their demurrers and JNOV's; their res ipsas and, most importantly, their view that only facts pertaining to a "cause of action" or "affirmative defense" are relevant to the injustice suffered by their clients.]
[T]he plaintiff usually prefers imposing a conflict on the defendant (who the plaintiff believes cast the first stone) in pursuit of justice, an imposition they will only relieve for at least "full" compensation. . . .
The problem is that most parties don't consider their claims to be assets; the problem isn't that there's emotional baggage around the economic understanding, it's that the parties interpret their dispute as fundamentally non-economic.
[My Comment: I've said before that all litigation is "fundamentally non-economic" -- it's about justice. Though Max is one of the few practicing litigators who agrees with me, he does not believe in the existence of my solution -- a settlement conference or mediation conducted in joint session].
Hence a Mediation Unicorn with litigation and attorneys prior to any meaningful discovery.
I'm talking to a plastic surgeon whose artistry not only went unappreciated, but which gave rise to a lawsuit for battery and malpractice.
The plaintiff is a model and an actor. The surgery, she claims, left permanent scaring on her nose. Her opening demand is $500,000. I am trying to persuade the physician, his attorney, and the claims adjuster, not to walk out. The plaintiff's deposition has been taken and the doctor's is scheduled for the following week. No experts have been retained.
The parties have made the rare effort to settle the case early in the litigation.
This is what the defense thinks about the opening demand in response to their good faith participation in an early mediation:
%&*#%*#%@& and %&^@(% and *&$)*#!
I am suggesting to the defense in separate caucus that they allow me to conduct a joint session in which the parties can talk about the surgery, the scarring and their post-surgical communications. I explain that the Plaintiff is more angry than acquisitive. She believes that the doctor disrespected her when she complained about the scarring.
He denied that I had a scar. He was rude and dismissive. He disrespected me. He had no bedside manner.
She is one of the few personal injury plaintiffs who comes right out and says what so many plantiffs feel.
I want him to suffer. My attorney says he has to report any settlement in excess of $30,000 to the Medical Board. I want to make him do that. I want him to suffer as I have. It's not about the money. It's about accountability. I want him to be accountable.
The parties resist a joint session and we spend two hours negotiating in the strato- and nano-spheres. $10,000. $490,000. $12,500. $475,000.
"We're getting nowhere," says Plaintiffs counsel. "Tell them we're leaving."
"The case will never settle. This is a waste of time for my doctor and my claims examiner. Tell them we're leaving. The case will never settle. It simply won't settle. The case cannot settle."
Click Your Heels Three Times and Say "There's No Place Like Home."
Attorneys are fond of saying that all mediators do is "keep them in the room." They might be right, but the difference is the room I keep them in. It's a mediation room, not a conference room or a deposition room or a courtroom. It's a room in which I ask the doctor if the feeling he has is something akin to a fish being hooked, pulled up out of the water and thrown onto the deck of someone's boat, gasping. He cracks a smile for the first time that morning.
It's a room in which I say there must have been a miscommunication, a misunderstanding. It's a room in which I say to the defense that the Plaintiff feels angry and disrespected. It's a room in which I caution the Plaintiff that the physician is from a different culture than her own -- one where a doctor does not express empathy but only certainty in his skill and expertise.
The claims adjuster asks me if I'd been able to see the Plaintiff's scar from where I was sitting -- across a conference room table. I admit that I could not. I acknowledge what is patent in the defense room -- the Plaintiff is blindingly beautiful. A jury is unlikely to award her much in the way of damages. I have said as much to the Plaintiff. But she is angry and wants a pound of flesh.
I have another mediation in the afternoon. I tell the defense we have fifteen more minutes. The claims adjuster keeps repeating "the case will not settle, the case will not settle, the case will not settle." I take this to mean that the defense very much wants to settle the case.
"If someone repeats something over and over again," my mentor Ken Cloke taught me, "that is the key to the resolution." While that might be so, I haven't yet found a way to use that key to open any door. But it is not really my case to settle. It's my job to keep them in the room.
"I Want to See the Scar," says the claims examiner.
I wish I could take credit for the following but I cannot. The Plaintiff's attorney says "why don't they go to the ladies room where my client can show Ms. Y the scar and together they can look at it."
I hear the click of the Unicorn's hooves in the hallway. The plaintiff's attorney is male. I don't believe he knows what he's suggesting. He wants to send two women into one of the safest and most congenial, soul-bonding rooms in all of God's creation -- the women's room.
I know the case will settle.
We are finally in joint session. The claims examiner says, "I want to tell you that I now see the scar. I'm sorry I denied it. We'd like to offer you $X to settle the case."
Did $X settle the case? No. But $X + $Y settled the case ten minutes later.
And just around the corner, you could see the shadow of the settlement unicorn rear up on its hind legs in celebration.