Good Mediators Ask Why?
Why? is the first and perhaps most important question good mediators ask. It’s a question you can never ask too often, but it’s asked far too seldom.
A key rule for trial lawyers is to never ask Why? unless you already know the answer, because if you don’t know, the person you’re questioning may provide an answer that undermines your case. As a mediator, however, you get to be a rule-breaker.
An attorney typically assumes she knows why her client wants to sue —money. And for an attorney who works in the world of rights and remedies, that assumption is fine.
For mediators, however, that same assumption is toxic. People don’t really go to lawyers or mediators to get money. It’s not an economic system. It’s the justice system. People seek justice when they believe they’ve been wronged.
Perhaps they want money, but they usually want more than that — to express outrage, get revenge, teach wrongdoers a lesson, or make sure that nobody else suffers this same injustice. Asking Why? helps you determine what the parties really want.
Give clients what they really need to make a final decision. When the time comes to settle a case, clients want to know that
They’re not being taken advantage of.
They’re not getting less than the defendant is willing to pay or paying more than the plaintiff would accept.
They’re making the decision. (Nobody’s holding a gun to their head.)
Any one of these items can be a deal-breaker. Asking Why? is one of the best ways to diagnose which of these potential deal-breakers, if any, are influencing the parties.
Here’s an example of a case in which the question Why? revealed the real reason why the person was suing and broke impasse:
Q. “Why do you want at least six figures in settlement of your malpractice suit against the dialysis center where your wife died?”
A. “Because I told my attorney when I hired him that I’d read in the paper about a veterinarian who paid $25,000 for the death of a dog. That’s what the dialysis center offered me not to file suit. A dog! If the insurance carrier pays anything less than $100,000, they’ll be treating my wife no better than a dog.”
Q. “Why will $100,000 make you feel like justice has been done, though? Why do you envision yourself being satisfied with that figure?”
A. “Well, I’d like to make myself a photo studio. I used to be a professional photographer, but that was 40 years ago. Now that I’m retired and a widow, I need something productive to do. After paying attorneys’ fees and expenses, I’d receive only $57,000, and I’m told that I’ll have to pay taxes on that, so it’ll all boil down to the price of that dog — $25,000 in my pocket. That’s the absolute minimum amount I’d need to set up my photo studio. It may also allow me to contribute to my granddaughter’s university fees. If I can’t help her out with tuition, I’m afraid she’s going to drop out.”
Something about his concern for his granddaughter and his plans to make a better life for himself softened the insurance carrier to pay him $100,000 for his loss. She stopped feeling as though he was just trying to get money out of her pocket. His story moved her.
She realized he had similar desires to her own. “I worry about my own daughter,” she said. “I had an ample college fund, but then the recession hit, my husband left me, and I had to invade her savings account to pay the mortgage or I would have lost the house.”
But don’t think emotion is the only path toward resolution. In an example of what some mediators call a “pure money case” — the reimbursement of an overpayment by an insurance carrier to a physician — the two sides were stuck at a number: $107,500 exactly.
The defendant physician thought the insurance carrier (owned by doctors) was trying to chisel him. He saw no reason why he had to repay them the $250,000 they’d negligently credited to his account. He was willing to pay some of it back, but more than $50,000 seemed wrong to him.
After hours of bargaining, the mediator pulled the insurance carrier and its attorney aside and asked, “Why $107,500 exactly?” In this case, the question Why? revealed one of the greatest contributors to impasse — the hidden constraint tying one of the party’s hands. “We settled another case exactly like this one,” said the insurance carrier.
“We overpaid a lot of doctors, including some who are on our board of directors. In our settlement agreement with one of them, we promised that we wouldn’t settle with anyone else for less than 43 percent of the total we overpaid. In this case, that’s $107,500. We genuinely can’t go under that number or we’d be in breach of contract.”
“May I tell that to the plaintiff?” the mediator asked. “I believe it will help break impasse.”
Sure enough, as soon as the physician found out that a principle of basic fairness (everyone in the same situation should be treated the same) was underlying the offer, the justice issue underlying the money issue evaporated, and the case settled . . . for exactly $107,500.