Telling It Like It Is: A Lesson in Mediation Honesty

While I have greatly enjoyed my transition into mediation, there are still moments and cases that I find difficult. For example, I recently had to inform a former U.S. soldier and paraplegic that he is likely to lose his bad faith lawsuit for hospital benefits under an Accident & Health insurance policy. The soldier is an honest man, makes a good witness, and has a positive attitude about life even in light of his physical limitations.

It was my job as the mediator to let him know that I believed the insurance company’s denial of coverage to be correct in light of the facts and law based on his testimony about how his injury occurred and legal precedent against him.  I dreaded having this conversation with a person of his quality and life experiences, but it was necessary. His view of the case coming into the mediation was not realistic and it was causing his counsel to make demands that had no relationship to the merits of the case.

This was my most difficult and heart wrenching experience to date as a mediator, but I was direct with the plaintiff and told him that in order for me to facilitate a settlement, it was necessary for me to be honest about what I thought was the likely outcome of his case. At the end of our discussion, he told me that he did not like the message and wished it was otherwise, but he thanked me.  His settlement position changed and the next demand put the parties within spitting distance of settlement.

Lesson learned, no matter how difficult it may be to deliver bad news to a party, it is necessary to do so, and to have a discussion about it so that they can express their views to the mediator and hopefully make a rational and reasoned decision on how to proceed.  Compassion and empathy are important part of the message, but the message must be delivered if the mediator is to fulfill his obligation to the parties to provide an evaluation of the case in order to facilitate a resolution.