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Mediating the low-dollar, high-emotional-content case.

This article originally appeared in the May 2010 Alternative Dispute Resolution Committee Newsletter.

Big cases get the headlines and are featured prominently in our firm brochures and our Web biographies. The reality, though, is that the overwhelming majority of cases filed in every court, every year, are not really "big" cases from a dollar standpoint. The legal system processes vast numbers of cases every day that present fairly routine legal issues and fairly modest damages claims; and which are generally important or "big" to one person only--the person or business filing the claim.

Every broadly-experienced practitioner and claims professional is familiar with these kinds of disputes: the personal injury case in which the objective injury does not seem significant, but has diminished the Plaintiff's ability to do something that is meaningful in their life; the case in which the Defendant has, to the Plaintiff's way of thinking, done something to insult, belittle, or demean them; the case in which technical application of contract language threatens the Plaintiff's ability to earn a living or his family's financial foundation; the case that is, indeed, based upon a simple misunderstanding.

These cases are different from high-dollar disputes between business entities seeking to protect competing commercial interests. They arise from different motivations and have a unique emotional dynamic. And for Defendants attempting to resolve these kinds of cases on a reasonable basis, they call for some different thinking. Below are some thoughts and observations, distilled from scores of these types of cases that may be helpful in approaching these kinds of claims.

1. Little Cases Can Bite Hard:

We all have a natural tendency to prioritize, and it is easy to allow the cases with a large price tag to rise to the top, and those with what we perceive as a low price tag to drift to the bottom of our attention. This is very dangerous. The case reporters are full of cases that might have seemed to have a low dollar value, but which resulted in large verdicts because something in the case struck a chord with the jury. The lessons in terms of preparing to mediate a "small dollar" case are two-fold: First, never assume that because the case seems to involve meager damages, that everyone would naturally see it that way; second, devote as much serious thought and analysis to preparing to mediate the "small" case as the "big" case. This sounds like obvious advice but it is surprising how often the tendency to prioritize and categorize can, almost subconsciously, lead to giving resolution of the "small" case only whatever attention is left over after you have dealt with your "big" cases.

2. Big Shots Not Needed:

The foregoing leads to the second main point. If you think that the case with seemingly small damages is, indeed, a "small" case--chances are that you will act this way, and subtly convey to the opposite party that neither he/she, nor their case, mean very much to you. This dynamic can be fatal to resolving these kinds of cases. In general, the "small" claimant likely has a dim view of lawyers to begin with, has a dimmer view of lawyers in dark suits representing corporate and business interests, thinks they have been mistreated by forces somewhat beyond their control, and thinks that you think you are better than them. This is a generalization, of course, but no one watching current political and economic trends can miss the fact that substantial segments of the public appear to have the sense that things are slipping out of their control, and that faceless interests are having negative impacts upon their lives.

If you show up to mediate a case that looks "small" to you and act like you are too important to be bothered with such trivia--then you will be feeding this anxiety and setting up a dynamic that makes resolution more difficult, not easier.

Treat the claimant who has a small claim with respect and sincerity. A problem that is minute to your corporate client can be huge to an individual. And if your corporate client wants to resolve the claim, presenting yourself to the claimant as a listener and facilitator, rather than a big shot with a busy schedule, will serve your clients interests.

3. What Is the Plaintiff Trying to Tell You That He/She Needs?

Settlements in small cases can often grow out of rapport. Instead of leaping to methodically knock down every point raised by the claimant (which you can do when and as needed) ask yourself what this person is trying to tell you. How do they believe the incident has affected their life--what, in the circumstances that have lead to the lawsuit, is eating at the claimant? In contrast to larger corporations, most individuals, or small businesses, do not initiate litigation in order to protect a strategic competitive interest or to protect a precedent. Try to ascertain why this claimant is actually bringing this lawsuit. This means looking beyond their lawyer's verbiage, resisting the temptation to spar over the legal strength or weakness of the causes of action--it means a concerted effort to stand in the other party's shoes and look at the situation as it may look from their eyes.

This does not mean, of course, that you have to accept their view of the situation. But understanding their real motivation--what do they fear, how do they think they have been insulted, what do they need--can be invaluable in crafting a resolution.

4. Be Creative, Step Outside the Box:

Sometimes the claimant's needs can be addressed through things other than money, or in combination with money. Smaller cases offer a unique opportunity to assemble creative solutions. If you have gained an understanding of the claimant's true motivations and goals, then you can put your imagination to work and devise a myriad of unconventional but mutually satisfactory--outcomes. Do not think solely in terms of exchanging money. Money will always be a prime factor in resolving civil disputes but it does not have to be the only factor, and the effective practitioner will search for those concerns on the claimant's part which can be dealt with in other ways.

5. Show the Money:

Finally, it must be acknowledged that money plays a not-insubstantial role in settling all cases, big and small. A unique wrinkle in smaller cases, though, is that often the claimant needs cash in the short term, in a way that larger businesses do not. In order to resolve these cases, it is vital to make it clear that money is on the table today; do not leave the claimant unsure as to whether you are prepared to put money in their pocket today. And the attraction of money today can be effectively contrasted with the uncertainty of what awaits in the future if the case is not resolved. While the claimant may not care about the elegance of your legal theories or your dissection of his causes of action, he/she will care about the prospect of having to run a lengthy gauntlet of uncertainty before receiving anything, or maybe even nothing. This can be contrasted with the closure that is available now, today; closure both emotionally (often important in personal injury cases) and financially. To get there, though, you have to show the money in an unequivocal way.

Val H. Stieglitz is' a Member in the firm of Nexsen Pruet, LLC. Nexsen Pruet has seven offices throughout the Carolinas. Mr. Stieglitz is Coordinator of the Business Litigation Practice Group, and is' located in the Columbia, S.C., office. Mr. Stieglitz has represented a widely diverse array of business and insurance clients over a 25-year career, ranging .from national corporations to local family businesses, and involving claims at all levels" of the economic spectrum. During this time he has mediated more than 100 cases" throughout the Carolinas. He is a former Chair of the IADC Business Litigation and Intellectual Property Committees. He has been recognized as a 'South Carolina Super Lawyer. "
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Author:Stieglitz, Val H.
Publication:Defense Counsel Journal
Date:Oct 1, 2010
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