Keys to a Successful Mediation: Patience, Perseverance, and Jill’s Mother?

Some years ago, I represented a family-owned trucking company, whose dump truck driver tried to pass a car on a narrow two-lane road in rural South Carolina.  The driver was speeding and not paying attention.  He ran the car off the road, injuring the car’s driver, “Jane,” and her passenger, “Jill.” We’re all about the pseudonyms here at Abnormal Use. Both Jane and Jill hired a local lawyer and then sued the trucking company.

Jane was more seriously injured, and we ended up settling her case at mediation.  As I recall, we paid her a significant sum of money.  Despite that fact, when the mediator came to our conference room, he said he had “good news and bad news.”  The good news was that the case was settled.  The bad news?  He said we needed to leave the office through the back door!  This is the first, and last, time in my legal career that has happened.

To this day, I do not know how or why we may have offended Jane.  Perhaps she doubted the sincerity of our apology on behalf of the trucking company.  Perhaps she was tired and irritated after a long day of intense negotiations.  Resolution often comes only when both parties have been pushed beyond their comfort level.  Patience and perseverance are often the keys to a successful mediation.

Then, there was Jill.  She was not hurt as seriously as Jane, had fewer medical bills, and was able to return to work.  Yet, as some Plaintiffs somehow do, she testified about a number of physical limitations which were inconsistent with her medical condition.  She did have a diagnosis of meralgia paresthetica, an unusual neurological condition with which I was previously unfamiliar.

We also mediated Jill’s case.  We were making little progress in settlement negotiations when the mediator asked me, “Mauney, why are you being so cheap?  This lady is hurt!”  I told him that we had recently conducted surveillance, which had not yet been disclosed to Jill or her lawyer.  The surveillance – as it sometimes does – showed Jill doing some things which were inconsistent with her deposition testimony, including walking around a flea market for four hours without sitting down or resting and hopping up her apartment steps two at a time without holding onto the railing.  The mediator suggested we hold off on disclosing this information until later in the mediation.  Yet another key to a successful mediation is being able to trust the mediator with this type of information.  In this instance, I trusted the mediator’s judgment on when we should disclose the surveillance during mediation.

When we appeared to reach an impasse, the mediator asked for the surveillance tape to show Jill and her lawyer.  Shortly thereafter, we began to make more progress, as Jill and her lawyer became more reasonable.  My client and I were pleased that we were making real progress toward settlement.

Then, that progress came to a quick halt.  We hit the wall.  The mediator told us that we were not going to be able to settle the case.  Why?  Jill, a grown woman, in her mid 30’s, called her mother from the mediation and told her about the surveillance.  The mother was not amused.  In fact, she accused the big, bad trucking company and its evil insurance company of spying on her daughter.  Jill’s mother was furious; she told her daughter that she had better not come home that day if she accepted the offer that was on the table at that time.

It is always interesting to learn who you need to persuade to get a case resolved.  We had no idea that Jill’s mother was someone of such great influence.

And now for the rest of the story.  Fast forward a few months later to the jury trial of Jill v. Big Bad Trucking Company.  (Yes, that was the actual case caption!) We expected the jury to return a verdict for Jill.  This suspicion was influenced, in part, by the fact that our driver smelled of alcohol when he showed up for his deposition.  He was nowhere near the courtroom when we tried the case.  We offered testimony from a medical expert to refute Jill’s injury claims and also called the private investigator as a witness to show the surveillance tape. Just as expected, the jury returned a verdict for Jill.  But Jill and her mother must have been disappointed, as the verdict was a full 25 percent less than we had offered at mediation.  I always suspected that Jill’s lawyer knew we were offering a settlement that was fair and reasonable.  He probably also thought that Jill’s mother should have stayed out of it!

[Editor’s Note: Click here for Stuart Mauney’s previous story of how he got burned at mediation by his own Facebook post.]