Wisconsin
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.
by Russell M. Ware
arties 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.
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.
Wisconsin Lawyer