Wisconsin Lawyer: "I'm too mad to settle!" Working with Angry Plaintiffs in a Mediation:

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  • Wisconsin Lawyer
    May
    14
    2008

    "I'm too mad to settle!" Working with Angry Plaintiffs in a Mediation

    Russell M. Ware

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    Understanding the causes of and sincerely and directly acknowledging a party’s feelings of anger and resentment, both before and during a mediation, can help the lawyers and mediator move a case toward resolution. Here’s how.

    Wisconsin LawyerWisconsin Lawyer
    Vol. 81, No. 5, May 2008

    "I'm too mad to settle!" Working with Angry Plaintiffs in a Mediation

    Understanding the causes of and sincerely and directly acknowledging a party's feelings of anger and resentment, both before and during a mediation, can help the lawyers and mediator move a case toward resolution. Here's how.

    Arguement

    by Russell M. Ware

    Parties may bring strong emotions to a mediation session in a civil case. Sometimes, the emotional factor can be helpful. Parties may be afraid to undergo the stress of a trial, or may fear the consequences of an unfavorable trial outcome, and therefore be motivated to reach a negotiated settlement. Emotions can at times run high on either or both sides of a case. However, experience shows that the emotional factor most likely to prevent success at a mediation in civil cases is a plaintiff's anger.

    This article discusses how lawyers and mediators can respond to plaintiff anger and keep the mediation on course toward a successful resolution of the matter.

    Reasons for Plaintiff Anger at a Mediation

    At some mediations, the strong emotions arise from the very nature of the underlying dispute. For example, personal injury plaintiffs who have sustained life-altering injuries may understandably come to a mediation with feelings of anger at the defendants. This is particularly true if the injuries arose from allegedly egregious conduct by an individual defendant. The same type of anger can be present in those commercial cases in which a plaintiff has sustained great economic harm.

    Sometimes, plaintiffs may come to the mediation angry or resentful because they conclude (rightly or not) that the other side's premediation settlement position has been unreasonable. In still other cases, the anger is first engendered during the mediation, if the plaintiff perceives the defense's oral presentation to be hostile or bargaining position to be insincere.

    Regardless of the reason for a plaintiff's anger during a mediation, there are ways in which lawyers and mediators can manage and work around such emotion to move the case toward resolution.

    What a Lawyer Can Do About an Angry Plaintiff

    There are things a lawyer representing the plaintiff or the defendant can do both before and during the mediation to lessen the chance that the plaintiff's anger will prevent the parties from achieving a settlement.

    Tim O'Shea

    Russell M. Ware, Marquette 1971, is a trial lawyer in the Milwaukee office of SmithAmundsen LLC, focusing in the defense of professional liability and personal injury matters. He also serves as a mediator and arbitrator in civil matters.

    If a lawyer knows that strong emotions are going to be brought to the mediation by his or her own client or by the opponent, that lawyer should so advise the mediator in advance of the mediation. This can be done in a written mediation submission or by a phone call to the mediator before the mediation. Some (not all) mediators routinely conduct separate and confidential premediation phone conferences with each lawyer to discuss special factors that may affect the mediation. The presence of strong emotions on one side or the other can be discussed during this call. Such an advance warning will allow the mediator to fully prepare to handle the party's anger at the mediation.

    A lawyer may alert the mediator to his or her own client's strong emotions without in any way breaching duties of loyalty and confidentiality. Because opposing parties and their lawyers will no doubt already know if a plaintiff is very emotional about the claim, giving the mediator a heads up about this reality is a matter of good practice.

    Even if a lawyer does not discover that the plaintiff is likely to express anger at the mediation session until the lawyer arrives at the mediation, there is still time for that lawyer to help the mediator manage such emotion. For example, counsel for either or both sides can take the mediator aside just before the mediation formally begins and suggest that any joint session is inadvisable, given the likelihood that emotions will be heightened during any face-to-face meeting of the parties. Likewise, if a joint session is in fact conducted, defense counsel who is aware of the other party's angry state may decline the opportunity to give an opening statement or may carefully tailor any opening statement to delete any comments that may be seen as confrontational or argumentative. In so doing, the defense lawyer may avoid exacerbating the plaintiff's emotions. Further, in appropriate cases defense counsel can offer on the client's behalf, either at the start of or during the mediation, a sincere statement of sympathy and condolence to the plaintiff for the injuries and losses sustained. This can be done without making any admission of fault and without weakening the defense negotiating position if the statement reflects a sincere recognition of the seriousness of the harm and includes an assurance of a genuine desire to work hard at the mediation to resolve the matter. Such a statement often can help to defuse the plaintiff's anger and open the way to serious settlement discussions.

    One important aspect of the lawyer's role in dealing with and overcoming a party's anger is understanding what the mediator will be doing to manage the party's anger. In cases in which a plaintiff's emotional state is perceived by everyone as a major barrier to settlement, wise lawyers on both sides must show considerable patience when the mediator is taking the necessary time to help the plaintiff work through his or her anger so as to permit a realistic evaluation of the case.

    What the Mediator Can Do About an Angry Plaintiff

    The mediator's first task is to recognize the plaintiff's strong emotions. Even if the mediator has not been alerted by counsel in advance of the mediation that such emotions are present, an experienced mediator should be attentive to those things that are said - and not said - that disclose the type of anger that may be a barrier to a successful mediation.

    A plaintiff's anger may be manifested at the mediation in varying ways. In some cases, at the start of the mediation a plaintiff may refuse the mediator's invitation to meet in any joint session during which the parties will all be in the same room. In other cases, the plaintiff's body language or other nonverbal cues will alert the mediator that very strong emotions lie just under the surface. In still other cases, a plaintiff's anger may not be revealed to the mediator at all until the first confidential session with the mediator, when the party begins speaking and expresses such feelings.

    Once the mediator learns that the plaintiff feels the type of anger that might scuttle the mediation, the most important thing a mediator can do to deal with that anger is to directly and sincerely acknowledge the emotion. No attempts should be made to talk the party out of his or her feelings or to tell the party that his or her feelings are inappropriate or unreasonable or unnecessary. The feelings of anger and resentment probably are longstanding and may have become second nature to the party; telling the party that he or she is wrong to have these feelings is almost always unproductive. Rather than trying to immediately convince the party that there is no reason to be so angry or lecturing the party that emotions must not be allowed to get in the way of a settlement, the mediator must instead first demonstrate a sincere understanding of the reality and depth of the plaintiff's anger. Once the mediator has assured the plaintiff that the mediator will not judge or criticize the party for his or her anger or resentment, and once the mediator has demonstrated a plan to work hard for the parties to reach a resolution, the angry plaintiff often will feel ready to listen to the mediator and to participate in the mediation despite the plaintiff's strong emotions.

    As noted, a special brand of plaintiff anger is the type kindled by the plaintiff's perception of the defense's conduct during the mediation. It is not unusual for the plaintiff to become angry if he or she perceives the defendant's first settlement proposal as unrealistically low or even insulting. This type of anger requires a careful response by the mediator.

    It is usually not productive to either tell the plaintiff that an angry reaction to the offer is foolish or to talk down to the plaintiff by implying that the plaintiff's anger at the low offer is born only of inexperience with mediation. Such statements may lead the plaintiff to conclude that his or her right to evaluate offers and to make decisions at the mediation is being challenged. Instead, the mediator should assure the plaintiff that the perceived inadequacy of the defendant's offer will not discourage the mediator from working hard to obtain a settlement offer the plaintiff may deem realistic. Usually the best approach is not to criticize the plaintiff for such anger but instead to lay out and then focus on a plan for making real progress at the mediation.

    Dealing With an Angry Family Member

    A plaintiff may insist that a nonparty family member be allowed to attend and participate in the mediation to give the plaintiff advice or emotional support. Sometimes, the strongest statements of anger at the mediation are then expressed by such a relative, who will pointedly describe on behalf of the plaintiff the harm that has been inflicted. The relative may try to dominate the discussion with an emotional recounting of how much the plaintiff has suffered and may then react angrily to the opponent's offers by calling them insufficient or insulting to the plaintiff. The relative might even angrily confront the plaintiff's lawyer and the mediator, arguing that the plaintiff deserves far more compensation than the plaintiff's lawyer wants to demand and may in fact suggest that the mediator is not properly protecting the plaintiff's interests.

    Just as the anger of a party must be handled carefully, so too the anger of the party's spokesperson must be acknowledged in a nonjudgmental way. It is almost never productive for the party's lawyer or the mediator to criticize the relative, such as by suggesting that settlement decisions are only for the parties to make or by telling the relative to let the plaintiff speak for himself or herself. Almost invariably, the plaintiff will see any harsh statements as an unfair attack on the relative. For example, if the plaintiff sees the mediator as criticizing or embarrassing the layperson who has been speaking strongly on the plaintiff's behalf, the plaintiff likely will defend the relative. If this occurs, the all-important trust, confidence, and rapport between the party and the mediator likely will be lost, and the mediation will be in trouble.

    As with expressions of anger by plaintiffs themselves, the mediator must react calmly to expressions of anger by relatives. A mediator's sincere acknowledgment of the relative's strong emotions as understandable and as evidence of laudable concern for the plaintiff can go a long way to defuse that anger and to convince even the angriest person that the mediator is there to listen and to help. If the relative develops confidence in the mediator and in the mediation process, he or she may well begin to work constructively with the mediator and with the plaintiff's lawyer to devise a mediation strategy that is best for the plaintiff. While there is no guarantee that the relative's anger can be overcome, trying to avoid exacerbating the situation is almost always the best approach.

    The Key for Lawyers and Mediators - Patience

    The key to managing the strong emotions at a mediation often is patience. In most cases, a party will not quickly set aside strongly held emotions. The mediator and the lawyers may have to exercise considerable patience before the very emotional plaintiff concludes that reaching a resolution of the dispute is the right thing to do. However, in most cases even the angriest of plaintiffs will be receptive to the suggestion - if made sincerely and at the appropriate time in the mediation - that a separate and important benefit of resolving a dispute is the emotional healing that can begin when the parties can put the matter behind them. Experienced mediators know that plaintiffs often report feeling as if a burden is being lifted from their shoulders as they realize a settlement agreement is about to be reached.

    Conclusion

    Overcoming strongly held emotions at a mediation is not easy. It requires premediation preparation, acknowledgement of and attention to the party's emotional needs during the mediation, and, above all, patience on the part of lawyers and mediators alike.




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