Look for ways to adjust your mind set towards cooperation and problem-solving in mediation. Prepare yourself and your client to broaden your perspectives of the dispute.
In my experience a direct communication of apology to a plaintiff from an insurance carrier representative is rare. More rare is a public entity
agreeing to issue a written apology to a plaintiff. Yet both of these occurred in a recent mediation involving an excessive use of force/wrongful arrest claim. The case involved a young woman and local resident who went to a small town police station for help tending to stray dogs she had encountered on the town's main street. The police officers who weren't equipped to handle dogs refused to help her. A heated discussion ensued and quickly escalated, culminating in an alleged assault of an officer and her arrest. Although the physical injuries she suffered during the arrest were minor, she was deeply emotionally harmed by the experience -- her first arrest and being charged with felony assault. Apologies in such a case are complicated given the opposing interests involved. The town officials are concerned with preserving authority while the woman, unfamiliar with the use of force in his or her everyday life, needed some action to help restore her faith in the authority to reach resolution. An apology for her was one of the first steps to getting her there.
One factor leading to these valuable and healing communications is the mind set of the participants in the mediation. The attorneys arrived with a willingness to have their clients meet face-to-face in a brief joint session for me to describe the process. This is the first step towards a broadening of perspective and a reminder that everyone arrives at a mediation with a common goal -- resolution and closure. (Neither of the officers involved were present at the mediation and neither remained employed with the town.)
The two senior attorneys present had opposed each other on a hard-fought, significant case decades earlier. As we were engaged in casual chit-chat and preparing to break up into caucus, the attorneys complimented each other with genuine mutual respect and professionalism. They clearly had admiration for each other. Their overt expression of appreciation and respect set a tone for open communication, trust and cooperation. The attorneys seemed to view each other not as adversaries, but as participants in a joint problem-solving session.
After a short discussion in which the attorneys reminisced about the litigation between the two firms over the years, the insurance carrier representative turned to the plaintiff and apologized to her for her experience with the two police officers. He stated his commitment to resolving and remedying the matter for her through the mediation. It was a brief and direct statement that meant the world to her. It was a generous and authentic gesture. The apology allowed the plaintiff to begin negotiations feeling valued and respected. The apology placed her satisfaction at the center of the discussion that followed. I could not have scripted a better opening session. In 12 years of mediating, this was my first experience with an insurance carrier making a direct apology to a plaintiff. What a great experience!
Later in the mediation, after hearing of the details of the altercation and the impact on the plaintiff -- both and emotionally and physically -- the defense counsel offered a written apology from the town for her experience of the arrest. This was an unsolicited offer and ended up being more valuable to the plaintiff in many ways than the final monetary settlement amount.
These small yet significant communications have the effect of allowing each side to view the other and the dispute in broader terms. Look for opportunities to broaden your view of the dispute at hand. Help your client see the different angles from which to see the same situation -- both factually and legally. Consider the huge impact of small healing communications -- beginning with professionalism and respect between attorneys. These communications pave the way for broader thinking and more substantive and meaningful closure in mediation.
