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Bar News - October 14, 2011


Alternative Dispute Resolution: The $7,500 Bruise: Mediation Breaks Down Barriers

By:


Kathleen Marquis
For more than 16 years, I’ve been involved with settling and resolving hundreds of cases. I’ve resolved numerous cases with insurance companies for policy limits. I’ve even helped settle many soft-tissue injury cases with really good results. One of the most memorable cases I’ve ever been involved in, however, resulted in a soft-spoken Asian woman (we’ll call her Mrs. Lee) receiving $7,500 for a bruise on her knee.

Mrs. Lee was standing at the airline counter in Philadelphia’s airport. A pilot, exiting a plane, was in a hurry. In his haste, he hit Mrs. Lee on her left knee with the brief case he carried. She felt immediate pain. She had to sit down. The pilot rendered a cordial, but not heart-felt apology and continued on his way.

Mrs. Lee’s knee hurt and it was bruised. She went to her family doctor. He told her to rest and to stay off her feet until she felt better. For Mrs. Lee, this was difficult. She was a busy grandmother who was active with her grandchildren. She had happily cared for her daughter’s child, while her daughter worked. While she recovered, Mrs. Lee was unable to help out, since she couldn’t walk around or stand holding her grandbaby. Mrs. Lee was a passionate gardener. Her garden was bountiful and was the envy of the neighborhood. For about two weeks, Mrs. Lee couldn’t weed her garden and tend to it the way she usually did.

The insurance company involved was adamant that no money would change hands in this case. After all, it was only a bruise. Mrs. Lee’s single medical expense was one visit to her family doctor. They said they wouldn’t settle – not even for nuisance value.

When everyone sat down together in one room for mediation, however, the insurance company changed its mind about settlement. They saw a genuine woman. They acknowledged how her knee injury had impacted her life, as she quietly spoke of being unable to do what she loved to do most. The life that she loved had changed because of one of their pilot’s actions. This was a woman who was passionate and caring. The activities she loved were put on hold. The insurance company wasn’t too impressed either with the way their pilot rushed off, while Mrs. Lee quietly cried, holding her knee. The case settled for $7,500.

Rarely will a small contusion injury result in an insurance company writing a sizeable check. But when people really listen, they learn that a resolution that benefits both sides may be possible. Litigation is costly. I’m sure that the insurance company recognized that Mrs. Lee would have made a sympathetic witness. At the time of this case, a Montgomery County, Pennsylvania jury may have awarded her accordingly. The jury may have empathized with Mrs. Lee and found the pilot to be arrogant and uncaring. If so, a jury at that time could have returned a five-figure verdict. As the mediation progressed and after truly hearing the impact of Mrs. Lee’s injury, the insurance company wasn’t willing to take that risk.

A good mediator knows that the easy part of mediating is talking. The hard part is listening. Mediation can be an extremely effective alternative to litigation. It helps break down barriers. It can help parties listen and be heard. When one side hears and sincerely "gets" how the other side is feeling, a resolution is easier to achieve. When a mediator helps get to the real issues, they can effectively facilitate a good outcome for both parties. The process of actually hearing and understanding where the other side is coming from is not always easy. More often then not, however, I’ve found that a good facilitator can help make sure that the parties are "heard." Through the mediation process, the neutral can expand options and solutions to help get a case resolved.

There are many dimensions to a conflict. The parties have underlying needs and interests. People have needs that are personal, behavioral, emotional, cognitive, financial, etc. If a person’s core concerns and issues are recognized, heard, and addressed, dispute resolution is easier to achieve. In this case, it was important for Mrs. Lee to speak on her own behalf. Her direct participation proved cathartic to her and meaningful to the other side. There was satisfaction with the process and the outcome. Mrs. Lee had a perception of validation when she felt the insurance company understood what her pain had meant to her. The insurance company recognized the impact of Mrs. Lee’s injury on her life. They felt satisfied compensating her for what she went through.

The psychology degree I earned from McGill University and my mediation training and experience come in handy every day. Whether it’s effectively listening to and communicating with my husband of 16 years, resolving arguments between my children, or mediating legal disputes, understanding emotion and really hearing people strengthens relationships. Comprehending another’s position and acknowledging one side’s feelings breaks down barriers and can help achieve a successful outcome. Examining the various dimensions involved in a case can help parties achieve satisfaction with the outcome of their dispute.

Who would have thought that Mrs. Lee would have received real compensation for a bruise on her knee? Who would have thought that the insurance company would be willing to pay for the impact their pilot’s actions had on one woman’s daily life? I did. Mediation was the successful alternative to litigation that got everyone there.

Kathleen Marquis is an attorney and mediator at Feniger & Uliasz in Manchester. She has lived and worked with law firms in Massachusetts, Pennsylvania, Ohio, and New Hampshire. She is a volunteer Superior Court Rule 170 Mediator. She can be reached at 603–627–5997 or by email at kmarquis@fenigeranduliasz.com.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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