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Bar News - October 14, 2011

Alternative Dispute Resolution:
I Think, Therefore I Am a Plaintiff: Tips to Defendants Addressing Plaintiffs in Mediation


Blake Sutton
The plaintiff had almost enough tattoos for an NBA star - including H-A-T-E on one set of knuckles; L-O-V-E, on the other. He may not have suffered from diagnosable terminal personality disorder, but it was bad enough to explain – if not condone – what the prison guards had done to him. And right away in the private session, he told me, "I know this is supposed to be about negotiating and all that, but the biggest part of me just wants to beat the **** out of those a******s."

A mediator has to be, above all else, optimistic. But how to communicate with this guy? I decided to tell him a little story.

I read once, I told our plaintiff, about a well-known drug counselor who was surprised to be awakened in the middle of the night by a panicked caller. Being called was not a surprise, but tonight he was far from home in a hotel, after giving a lecture. And the caller was a complete stranger. The caller went on and on about what a "bad trip" he was having, how confused he was, how disoriented. Finally the counselor had enough. "Listen," he said, "I don’t want to talk to you. I want to talk to the one who figured out how to track me down, here, in the middle of the night, in the middle of nowhere. That’s the one I want to talk to."

I looked at the plaintiff. "One of you knows this is about negotiating and compromising. That’s the one I want to talk to." And eventually, that was the one who agreed to settle the case.

All plaintiffs who come to mediation are not like this plaintiff, but they all share one thing in common: they bring a heavy load of emotion along with them. Emotion may be the spice of life, but too much spice can spoil the meal. There may well have to be room for emotion in the mediation. The plaintiff may need to tell his story. He may need his loss to be heard and somewhat understood. But sooner or later, the professionals in the deal have to find another person to speak to – let’s call him the "rational plaintiff." The one who understands, at least somewhat, that this is ultimately just a business deal. That he is here to sell a commodity – his signature on a release – for the best possible price. If the ultimate offer is for something like fair market value, he probably takes it. If not, he doesn’t. It’s as cold-blooded as that. The trick, for all the professionals present at the mediation, is to find a way to speak with that person. This is particularly difficult for defense counsel, being the identified enemy, so this article focuses on what he or she can do.

The opening mediation statement is defense counsel’s biggest opportunity to connect with the rational plaintiff. When giving it, defense counsel should keep in mind that sitting across from her is probably a lot of fiery emotion. Plaintiff may be angry, bitter, or sorrowful about whatever injury he believes he suffered. He may be anxious about coming to mediation, his first rodeo among these hardbitten old cowhands. He may be angry or cynical about the defense position, which is so patently unjust or contrived. And he may have unrealistic hopes and dreams about what kind of money he will end up with.

Faced with that hot emotion, whatever form it takes, defense counsel certainly has to set forth the defense position with force and clarity, but she also has to avoid adding fuel to the fire. Hopefully she can defuse the situation, at least a little. She does this by speaking to the reason, not the emotion. Based on my own experience of many mediations, both as mediator and counsel, here are some of the things I recommend she do, or not do:

1. DO speak directly to the plaintiff, not to the mediator or opposing counsel. Yes, it is true that some plaintiffs may shrink from a direct gaze; therefore, when I am wearing the defense hat, I begin by asking plaintiff if he is okay with being addressed directly. Occasionally, a plaintiff is not. But many plaintiffs will feel disrespected when their case is being talked about as though they are not there. Older readers of this article will recall the days when some restaurants had "gentleman’s" and "lady’s" menus – and only the former had prices. Some will recall the old-fashioned dinner table, where the adults talked and the children were supposed to listen – "seen but not heard." Plaintiffs feel powerless enough without being treated like second-class citizens at the table, or children. Talk to them directly, like rational adults.

2. DON’T talk lawyer talk. Many doctors seem to enjoy asserting their power by talking medical jargon to their patients. The message: I am the doctor and you’re not. Whether they are conscious of it or not, lawyers tend fall into the same hole. Expressions like liability, comparative fault, causal much less DeBenedetto) are not part of a civilian’s vocabulary and may mean nothing to our plaintiff. Instead, what the plaintiff may hear is: "I am the lawyer and you’re not" – which only ramps up the suspicion the plaintiff came in with.

3. DO explain why the defense is taking its position. Plaintiffs, in my experience, appreciate being given an explanation of the defense’s logic. Hearing that, they may drop some of their fear that they are dealing with a malign Dr. No, and recognize that perhaps the defense is being neither arbitrary nor capricious. If some of that fear or cynicism abates, there is more room for Mr. Rational Plaintiff to hear that there is more than one way to see this case.

4. DON’T make the dispute in the case be about what is true, or about which side’s belief is more accurate. To talk about the issues this way can, in the plaintiff’s mind, turn what should be a rational debate into a very personal struggle about who is right and who is wrong, who is telling the truth and who is lying. Plaintiffs tend to be less offended when suggestions are made about what a jury might think of their case.

5. DO assume plaintiff will read the mediation summary – and write it accordingly. The first time defense counsel has a chance to address the "rational plaintiff" is in the mediation summary. The defense summary is nominally addressed to the mediator, and it certainly is addressed to opposing counsel – but it frequently is read by the plaintiff as well. If so, it will be helpful if the summary is like the opening statement: free of lawyer jargon, heavy on explaining the defense position, and focused not on what the defense thinks but on what the jury might do.

Of course, even the best attempt by defense counsel to reach Mr. Rational Plaintiff is likely to fail if plaintiff’s counsel has not prepared his client to hear the message. Plaintiff counsel’s role in this little Descartian drama will be discussed in another article.

Blake Sutton practices mediation, arbitration, and civil litigation with Mallory and Friedman in Concord.

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