Mediation War Stories - The Underbelly of Litigation

By Jerome Levy

There is a public misperception of what litigation really is. The courtroom is not user-friendly. More and more disputants are currently turning to mediation as a self-empowering method to control the outcome of conflicts.

• Language: English
• Publisher: BookBaby
• Release date: Aug 4, 2014
• ISBN: 9781483534480

Book preview

Hell

Part One: Pajamas

The courts should be the place where disputes end after alternative methods of resolving disputes have been considered and tried.

Retired Justice Sandra Day O’Connor

The word tragedy can be a subjective term. One extreme illustration involved an egotistical woman with a hair fetish. When she had spilt ends, she thought that the governor should call out the National Guard. However, no one could dispute that the death of Irene Collier qualified as a tragedy.

Her catastrophic demise was a perfect storm of events, and it is all but impossible to conjure up a worse combination of factors. Not only did she perish in a nightmarish set of circumstances, there was no way that anyone could have mentally prepared for what transpired.

Irene was 24 years old at the moment her life ended. Irene was decapitated when her Miata convertible went under a tractor trailer. Her death took place on Mothers’ Day. Compounding this horrible event was the fact that at the instant of her death she was talking on her mobile phone to her mother. At the time she was driving to the office of her photographer, who agreed to meet her early that fateful Sunday in order to take her wedding pictures. They chose that early hour so that Irene would be able to return home in time to attend the late morning service at the church where her father was the pastor.

The story gets worse. She perished exactly two weeks before the scheduled date of her wedding. The honeymoon reservation at that beautiful resort at Ochos Rios, Jamaica went unused. There may be a time in the future when Irene’s fiancé, Barry, will find another woman to love as much as he loved Irene, then marry her and move on with his life. Or maybe not.

Another irony about the circumstances of Irene’s death was that she always was a cautious, prudent driver. Barry previously had ridden his Harley Davidson like the proverbial bat out of Hell. In Irene’s eyes, this was the only flaw that she saw in Barry’s character, and it often was a topic of argument. Once their disagreement got out of hand and Irene called him a reprobate. That remark caused them to break up for a brief period of time. Two days later Barry called Irene and promised that thereafter he would ride his motorcycle prudently, would never again either perform a wheelie or speed. They later joking referred to this spat as being his quarter life crisis.

Irene met Barry six years earlier and they were instantly smitten with one another. At the time they both were counselors at a church summer camp. One night when the children were asleep, the six counselors split into teams of three each and had a mock debate as to whether the words in the Bible are literally true. They debated the subject for about thirty minutes and then, as a total lark, switched sides and argued the opposite position.

During a conversation afterwards, Barry decided that the intelligent, svelte, articulate Irene was wonderful. He surprised even himself when they parted as he told her that the two of them just might be soul mates. He was astonished when Irene responded that she had been pondering the same thought. She decided in the predawn hours the following morning to explore the possibility that Barry might become her life partner.

Shortly thereafter they started dating each other exclusively and became engaged two years later. However, they decided to defer getting married until after both of them finished graduate school. Barry graduated from the seminary the previous year and had become the assistant pastor in a church less than a hundred miles from Irene’s home.

Irene was old school in that she took a pledge a decade earlier to remain chaste until married. She had been regaled by many of her friends about how wonderful physical love could be, and Irene was eagerly waiting the time when she could savor that experience. She never found out.

They admired and respected each other’s moral commitment to fidelity and virginity. They had come close to having intercourse several times but, with great difficulty, they always stopped at the last second. It is unusual in this day and age for an attractive, high-energy, engaged 24-year old woman to be a virgin. Barry once observed that Irene was both chased and chaste.

They had intimate conversations. Irene had small breasts and the slender figure of a ballerina, and she once asked Barry if he would prefer a woman with a C-cup. He told her that if he wanted a cow, he could buy one. They laughed. They slept together several times but each time Barry was tightly secured in a sleeping bag. Irene died a virgin.

Compounding the tragedy even further, Irene’s death occurred the week after she was awarded a Master’s Degree in Education. She had been hired to teach the following fall in an elementary school near the church where Barry was employed. She loved children and fully expected that some day she would have some of her own.

That fateful morning Irene arose later than she usually did. That probably was due to the hectic schedule of school, work and the added stress of wedding preparations. She hurriedly got up that Sunday morning, made her bed, dressed, folded her pajamas, placed them on top of her bed, grabbed a quick cup of coffee, and then hurried out the door, saying to her parents as she left, Love you guys. How could anyone have possibly foreseen that this was the last time that they would ever see their wonderful only child alive?

Some people are not approachable. Irene’s parents were not of that nature. They both were warm, spontaneous, loving people, and Irene had a fervent desire to follow in her parents’ footsteps of serving humanity. Norman Rockwell could have used the Collier family for a painting.

The scope of the collateral damage of Irene’s departure from this world was enormous. Pastor Joshua Collier had his faith shaken all the way to its core by the tragic death of his daughter in the prime of her life. He pondered the rhetorical question of how could his wonderful child have perished at this point in time and under these circumstances. Why had the hand of God not reached down that fateful morning and performed an act of divine intervention?

Members of the clergy have been telling their congregants for years that a person cannot fully savor the joys of good times without having experienced some bad times by which to gain perspective. That is a wonderful creed by which to live, but that argument fell flat when Pastor Collier tried to apply it to his own calamity.

Words do not exist to describe the depth of his anguish. He will have a hollow ache in his soul the rest of his life. One item in a pastor’s mental tool box in grief counseling is to refer to the book entitled, When bad things happen to good people. Pastor Collier reread it the week after Irene’s death, but it did not provide him any emotional comfort.

People are resilient creatures and can work through most of life’s difficulties. Irene’s death was outside the scope of that generality. There are all sorts of painful experiences in life, some are fleeting while others can go straight to the depth of a person’s soul, such as when a child dies prematurely in the prime of life.

Trudy Collier never was able to achieve closure regarding her daughter’s death, and lived the rest of her life with minimal happiness. She was a loving mother who was thrilled at her daughter’s achievements. Trudy looked forward to seeing Irene develop her full potential in life as a wife, a teacher and, in due time, a mother. Trudy could not adapt to the seismic upheaval in life caused by Irene’s death. She thereafter remained a tortured soul.

Every night when she tried to sleep, Trudy conjured up images of Irene. Her insomnia could only be cured by medication. Trudy’s total outlook of life went through a reorientation from upbeat to fatalistic. Part of her died when Irene perished. Trudy was a psychiatric social worker who on numerous occasions had counseled others on coping with the death of a loved one. None of her training or experience helped her. Of course, she was conversant with concepts such as fate, but she could not comprehend how that could relate to her daughter’s untimely death.

A cynic once observed that life can be like a game of roulette. Factors such as tragedy, danger and terror can and often do come at any time, and frequently do so without warning. The Grim Reaper certainly struck that particular Mothers’ Day.

Subsequently there arose the issue of monetary compensation. In the larger scheme of life, the dollars that the trucker’s insurance company was willing to pay were meaningless. There is no act of contrition by the owner/driver of the truck that will ever enable him to forgive himself or forget what happened on that particular day. Forever thereafter Mothers’ Day will be a painful memory for him.

There is a fiction that a loss can be priced like a pound of produce at the local A&P. How can anyone evaluate and monetize Irene’s life? Somehow society gives credence to the idea that a jury can put a suitable price tag on the loss of a piece of property, a limb or a life. It fringes on being an obscenity to believe that a death or an injury can be quantified by dollar bills. However, that is the sole remedy that is available in contemporary society, which wants to resolve conflicts.

The adjuster for the trucker’s insurance company was proactive and wrote the family asking the generic question of how they wished to proceed. Contrary to the general public’s perception, there are times when the estate of a deceased does not want to relive a nightmarish situation or receive so-called blood money. In such situations they decline to discuss a financial settlement. After several months of soul-searching Irene’s parents ultimately decided to get the input of a lawyer.

One of the deacons at Pastor Collier’s church was an attorney. He volunteered to counsel the family without fee. It should be noted that he was a real estate lawyer and had never set foot in a courtroom. The media has caused the members of the general public to have the incorrect impression that all attorneys are litigators, whereas the data has shown that only twenty percent of the licensed lawyers in the United States have ever set foot in a courtroom. Only ten percent do so on a regular basis. This unquestionable well-intended attorney did the best that he could do. Possibly the ultimate outcome might have evolved in a different manner had the Collier’s been represented by a litigator.

It was agreed by all parties that litigation was not necessary since the insurance company did not dispute liability. Therefore, a voluntary, pre-suit mediation was scheduled with The Mediator.

In one respect this was an unusual mediation in that none of the underlying facts was in dispute. The truck driver had driven all night and was hurrying to get home for Mothers’ Day. He momentarily dozed at the wheel and only saw the red light when it was too late. Accordingly, the only item to be discussed was the appropriate amount of compensation for the loss of Irene’s life.

Trudy arrived at The Mediator’s office for the mediation carrying a small attaché case. She opened it and placed in the middle of the conference table the pajamas that Irene had taken off minutes before she died. The still-folded pajamas were a psychological tie that Trudy had to her late daughter. Trudy burst into tears every time that she looked at them.

The Colliers kept referring to the fact that Irene was still pure at the time of her death. They could not bring themselves to use the word virginal. Ironically, this mediation took place a few weeks before the wedding of Prince William and Kate Middleton. Thirty years earlier when Prince William’s parents were married, the Royal Family assured the public that Diana Spencer (later known as Princess Diana) was a virgin. Contrast that to Prince William and Kate Middleton who had lived together off and on for several years prior to their wedding.

The first thing that happened was that the adjuster and his attorney expressed their deep sympathy about the loss, and did so with total sincerity. There followed what The Mediator acknowledged sounded like a cold, analytical jury yardstick of the value of the matter. Irene had no employment history but her future earnings potential was clear. There were no medical bills nor was there any claim for pain and suffering since death was instantaneous. The funeral costs were reasonable. The only issue was the amorphous, subjective value of the life of this young woman who perished through no fault of her own.

The mediation stalled as the Collier’s emotionally could not let go of any aspect of their loved daughter’s life. They believed that to accept money as compensation for her life fringed on being heresy. The attorney for the Colliers told them that they basically had three choices. He outlined them as the Colliers emptied a box of tissues.

The first of these was simply to walk away and not pursue the claim any further against the trucking company. This would enable the Colliers to avoid having a monetary value put on Irene’s life, either by them or by a jury.

The second option would be to determine a suitable settlement amount that could be used in whatever manner the Colliers wished, such as to fund their retirement. It could be donated to some charity, it could be used to help pay off the mortgage on Pastor Collier’s church, it could fund a trust to be used to feed the homeless or it could pay for the college education of underprivileged children.

The final option was to have the Colliers step aside and let the value be determined by some objective neutral party, be it a jury or an arbitrator. Then the amount could be placed in the registry of the court until the Colliers decided what to do with these funds.

The lawyer for the Colliers made a mistake that happens all too often prior to mediation. Lawyers always should meet with their clients in advance to quantify specifically what the client realistically wants to achieve during the mediation. If this is not done sometimes a client’s level of expectation is unlikely to be attained at trial. In such an instance the litigator needs to woodshed with the client prior to the date of the mediation conference in order to discuss the most-likely outcome along with a realistic handicapping of the chance of the client’s preconceived result being awarded by a jury.

At other times there is a problem along the lines of what happened at this mediation, as the Colliers did not have a road map, which is to say that they had no idea where they wanted to go. To make a weak analogy, it was as if they got into their car, set the cruise control and then took a nap while the car went whatever direction it was pointed.

After an hour of soul searching, the Colliers could not decide how or even if they wanted to proceed with the mediation. At this point in time The Mediator suggested to them that they should talk further by themselves while he and their lawyer would meet with the adjuster and his attorney. His purpose was to have a candid discussion about the Colliers dilemma and see what thoughts were forthcoming from the trucking company’s insurance company. The Colliers agreed with this idea.

In virtually every settlement talk involving lawyers there is a lot of bluffing, saber rattling and posturing. There was none of that in this mediation.

The adjuster volunteered the fact that one of his investigators did a background study of Irene and her parents. The report that he received was that this was one of those unusual cases in which no blemish in character could be found on any of them. They all were good, authentic people in this tragic factual situation. Clearly he did not believe that the Collier’s were here looking for a financial windfall for themselves. The adjuster had been involved in several death cases in which the sole objective of the estate was to get as much money as possible as a result of the death of a family member about whom none of the survivors really gave a damn while that person was alive.

The lawyer for the Colliers candidly related his clients’ dilemma, and enlisted the thoughts of everyone present as to how best to proceed. The defense attorney almost fell out of his chair when the adjuster volunteered the fact that he had a claim reserve on this file in the amount of half a million dollars. The defense attorney had practiced insurance defense law for nearly twenty years and had never previously experienced an adjuster disclosing his claim reserve to the other side.

The Colliers’ lawyer asked the adjuster if anything more than $500,000 might be paid to settle the conflict. The non-responsive response was that this was a fair question, but this situation was so novel that for the first time in his years of adjusting he thought the disposition of the settlement funds should be resolved first, since the amount was irrelevant without a plan for use of the money.

There followed a wide ranging brainstorming session. If at that moment a stranger walked into the room, that person could not have determined by the conversation taking place who was The Mediator, who was the plaintiffs’ attorney, who was the adjuster or who was the defense attorney. There was an atypical let-your-hair-down, free flowing exchange of ideas.

The adjuster suggested what is known as a friendly lawsuit be filed along with an agreed final judgment, with the settlement amount to be deposited into the registry of the court. The money could remain until the Colliers decided how they wished to use the funds. This would enable him to close his file and at the same time let the Colliers have all the time that they needed to weigh the options of what to do with the money. Obviously this was one of the three suggestions that the lawyer for the Collier’s had already discussed with his clients. He was concerned that they might never achieve emotional closure over the death of their daughter, so this money would sit in the registry of the court forever.

The defense attorney had another idea. The building in which the city’s library is housed is falling apart. He suggested that the insurance company donate the settlement funds to the city and the building could be named the Irene Collier Library.

Another thought was to establish a summer camp for the city’s children which would be fully paid for by the Irene Collier Trust Fund. It could be permanently administered by a local bank.

Ultimately it was agreed to invite the Colliers to join this wide ranging, clearly non-confrontational discussion so as to see if it would help in their decision-making process. That turned out to be a good idea and there followed a pleasant discussion as to how to proceed.

As it was approaching the noon hour, The Mediator suggested that he should order a deli tray from the café on the ground floor of his building. The Mediator suggested that it might be helpful if everyone relaxed and they all ate together, with the caveat that there was not to be any discussion of the claim.

This was a settlement ploy by The Mediator. While this was an atypical mediation in that there was no disagreement between the attendees. The concept of breaking bread together had the dual effect of enabling people to connect on a different level while at the same time humanizing the interaction. Admittedly there is a certain risk element in doing this if the conversation were to become confrontational, but that was not going to happen at this mediation.

The Mediator’s hopes were achieved during the course of the meal. Trudy Collier and the adjuster had an immediate rapport. They shared painful experiences in their respective lives. The dynamic between these two was so strong that everyone else withdrew to the other side of the room. Trudy asked the adjuster what he would do today if he were in Trudy’s position. The adjuster said that he could not even relate to the death of a child, and for that reason could not respond.

Then the adjuster raised the admittedly difficult, hypothetical issue of what would Irene have wanted to be the outcome of the mediation. As Trudy pondered the issue, the adjuster added that doing so might also benefit the Colliers as it might enable them to move to closure. Trudy said that she could never be able to do so. And she never did.

The Mediator had studied comparative religion years earlier and thought back to the observation that Buddha made that life is suffering. Clearly it would have been counterproductive to make reference to that comment. Ditto for nirvana.

The Colliers had reached a decision by the time that everyone finished eating. They decided that the funds obtained from the trucking company’s insurer would be donated to pay for the new library. After a brief give-and-take, the parties agreed upon a settlement figure of $600,000. Preliminary settlement documents were drafted and executed. Then Trudy carefully placed Irene’s pajamas in the attaché case, thanked everyone and then left holding her husband’s hand tightly. Both of them were crying.

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