I thought I'd start the first of future entries on mediation with my write-up from several years ago about my very first mediation. The case involved the auto accident case of one of my estate planning clients--she was a particularly tough nut, proud of her Italian heritage and her skills at the card club table. As you'll read, the case involved some low numbers, so it was a good training exercise, but the higher number cases I deal with now have much of the same dynamics. People are intensely and emotionally involved with their cases, opposing attorneys often have strange and indefensible positions and are exceedingly acidic to boot and the good mediators do a heroic job of finding common grounds for possible settlement between the parties.
I can also tell you that my client, referred to as "Bitter Old Lady" below, went on to do several estate plans which angered various of her heirs, resulting in some colorful litigation and eventual settlement after her death. I'm sure she kept attorneys busy long before she met me. I do miss her, and we still quote some of her wisdom around here, including some I can't print.
With that, my account follows--the names have been kept confidential, and some language has been removed:
We arrive at Expensive Law Firm’s 36th floor office at Something Towers. Counsel for Insurance Company’s in-house legal department is there, Bill R, wearing his usual 3-piece suit with a bright yellow tie with giant smiley faces all over it, except some of the faces are angry. This is a sign. Mr. R won’t smile, won’t respond to your hello, except to acknowledge your presence. As my Partner Y said, it’s obvious this job of his is the latest in a rapidly falling career trajectory. Before I got there, Partner Y asked our Associate attorney X to “schmooze him up,” but even gregarious Associate X couldn’t crack him.
The insurance adjuster was 20 minutes late, apologized, and when Partner Y introduced himself as having formerly worked for her, she had no idea who he was. At least he remembered her, so he knew what sort of thinking was going on in her icy head. Oh, and the large mother and semi-large driver defendant were there too, but didn’t feel like talking.
I gave my opening statement, and then the mediator asked the wrong question: “Mrs. Bitter Old Lady, do you have anything to add?”
“You bet I do. Just that I’ve been living with pain since the day that girl hit me. Pain in my ___. My rectum. Can’t hardly walk. Doctor says I need surgery, but I’m too old. TOO OLD! No way I’m doing it, I told him. And I’d like that girl over there and her mother to feel the pain I’m feeling EVERY DAY. And there was a hair dryer in the seat behind me, a big one like they use in the hair salons, you know what a hair dryer is? Do you?
This went on and on until he finally stopped her. He did not make this mistake again. By the way, the medical records show no indications for surgery, no crushed vertebrae she insisted were there, no current injury, no arthritis, no osteoporosis, just some narrowing of the joints due to age, but she still carries those records with her as if they’re evidence of her condition delivered by God Himself, but I digress.
Then, Mr. Smiley Tie looks at Ms. Adjuster (by the way, his nose is covered with oil at this point, and somehow a lot lighter than the rest of his face, which is not oily), gets up and throws four pictures on the table with a flourish. “This is the car they were driving in. No damage. THAT’S my opening statement!”
“Could you show us the pictures of their car?” I asked. Well, he had those too, the ones with $2,400 in damage. Maybe I should have thrown something on the table with a flourish, but that seemed like a good time to break off, as nothing good could come from all of us being in the same room.
The mediator took us down to a small conference room with a downtown view, and it took some tapping on every window to convince Bitter Old Lady she couldn’t open the 36th floor windows for a smoke.
The mediation dance then took place, with the final result being $3500 for Bitter Old Lady’s Friend and $4500 for Bitter Old Lady, with a large cut in our own fees so that we wouldn’t have to see her again—Partner Y was ready to take this to trial and watch Smiley Face beat up on an old lady in front of the jury, but then again, she may not make the most sympathetic witness if you have to take more than 10 minutes of her. Still, $10,000 to12,000 was possible at a trial It would be good experience, if not economically sensible.
The highlights: the inevitable fight between Bitter Old Lady’s Friend and Bitter Old Lady, which provided plenty of entertainment for the office staff (Associate X bonded well with the secretary who had a hula girl on her desk just like the one in Associate X’s car (“Really? I had it my car too! It just didn’t stay up, so I had to take it in here!”). I believe this started when Bitter Old Lady’s Friend tried to tell Bitter Old Lady that settling would be a good idea, because the best result at trial wouldn’t put any more cash in her pocket than today’s settlement.
“Bitter Old Lady’s Friend, you’re nothing but a cheapskate and a _______ liar![1] You took that $50.00 off my breadboard, and I had to call the police on you. Your husband tells me you’re a cheapskate too. You tried to lie about the hair dryer, and you don’t care about me now. You’re a piece of _____, and nothing but a liar!”
Bitter Old Lady’s Friend rises (slowly) out of her chair now. “How dare you, Bitter Old Lady! How dare you say that! Associate X tried to intervene and calm Bitter Old Lady’s Friend down—I tried the same with Bitter Old Lady, but it was no use. They were both yelling, and in each other’s face, putting on a good show in front of the conference room’s glass wall like a zoo exhibit.
Bitter Old Lady: “Oh, you want the truth? You want the truth?[2] You’re a conniver, and a liar about the hair dryer, and you lied about your chiropractor, but I’m in terrible pain every day. EVERY DAY! I got crushed vertebrae, my spine curves into my stomach and out my ______, my chiropractor won’t touch me, I got electric shocks goin’ up in my shoulders. Ten thousand is not enough, and that’s all them cheap S.O.B.’s want to give me? What? Not even that? You gotta be kiddin’. Well Bitter Old Lady’s Friend can take hers, but I want no part of it.”
Partner Y gets Bitter Old Lady’s Friend out of the room, where she agrees to her settlement—with some more work, Bitter Old Lady does the same, but not until gasping that she’s got papers that will blow this case wide open: “I got a ……foot ……locker in my house, locked with a key, you can’t get it open ….no way. ……” This then trailed off, and we were left with the mystery.
I forgot to mention that earlier Associate X and Bitter Old Lady were trading notes on which are the better local casinos, as both have been known to play five-card stud. On the way home, Bitter Old Lady wanted to let me know that Bitter Old Lady’s Friend’s no-good son just got out of prison for "stealin’." He is gainfully employed as a truck driver, however.
Last note: part of the final agreement was that Bitter Old Lady would never contact the defendants again, ever. She kept her promise.
[1] Her pronunciation of “liar” is much like “lawyer.” Thus, when she earlier accused Partner Y of being a liar, he said he was indeed a lawyer, even though she mistook him for a “whatchamacallit, one of them paralegals” at first.
[2] Here is where I heard “You can’t handle the truth!” from Associate X. Thankfully, the two ladies were too engrossed to see us smiling.
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