[PODCAST] JAMS Neutrals Discuss the Benefits of and Strategy Behind Using ADR in Resolving PI Disputes

In this podcast, JAMS neutrals Judge Sherry Klein Heitler and Judge Richard McDermott give listeners a deeper look into the mediation process and how mediation can truly be a more beneficial alternative when managing personal injury cases. They examine the benefits of going through mediation as well as outline what the normal process looks like for personal injury (PI) disputes. Furthermore, they discuss their professional experiences overseeing and handling PI disputes from both the attorney and mediator perspectives and give suggestions for how to help settle these types of cases.

[00:00:00] Moderator: Welcome to this podcast from JAMS. Today we're diving into how ADR can help resolve personal injury disputes. With us are two former judges who are now JAMS neutrals: Judge Sherry Klein Heitler, who spent 26 years on the bench serving New York state, and Judge Richard McDermott, who spent almost 18 years on the King County Superior Court bench in Washington state.

Thank you both for joining us. Both of you have mediated a lot of personal injury cases. Let's talk about some of the benefits. Why do parties typically choose mediation? Judge Heitler?

[00:00:43] Judge Heitler: I think people choose mediation for personal injury cases for several reasons. First of all, when you walk in, you get started immediately. Then you have the opportunity before you even walk in to choose the mediator, which I think gives people a sense that they are in control. They know the person that is going to mediate the case. They've had an opportunity to find out about that person. It's also very private. You come into a room, and you don't have other people that are around you. You can go day to day.

I think that it gives you—if you do settle the case, there's a sense of relief that perhaps if you try the case and you don't like the outcome, you might have to make a motion to the judge or make a motion to an appeals court. So, I think there are several reasons people do go into mediation for PI cases.

[00:01:47] Moderator: And Judge McDermott, would you add any other reasons that parties choose mediation to that list?

[00:01:52] Judge McDermott: Yes, thank you. Before I became a judge, I was a plaintiff's personal injury lawyer, and I started out actually mediating cases in the nineties and really enjoyed it and found that as far as my clients were concerned, it was an opportunity for them to be able to tell their side of the story, to have somebody hear their concerns and their complaints and yet have some control over the outcome. When you appear in front of a jury or—or a judge, you lose that control. You don't have that. The ironic part of the whole thing is the person or persons who know the least about your case are the ones who end up making the final decision.

But in a mediation, you actually retain some control over being able to make a final decision. Whether or not you think that a case is appropriate to settle or whether or not you don't wanna settle it, that's your choice. I think another reason is—quite frankly when we have—nowadays since the pandemic, we do a lot of mediations remotely. I find that adjusters oftentimes attend, when before they were a little bit reluctant to get on an airplane and attend if they were out of town, but now they attend. When adjusters attend—along with defense attorneys on one side and on the other side, the plaintiff and his or her lawyers—then you have a much better chance when everybody's in the same room, so to speak, to be able to get the case resolved.

I like that part of it. So, I think it gives people an opportunity to tell their story to somebody. It also provides the opportunity of feedback because the mediator can go through their case with them and explain to them the weaknesses and the strengths, and it gives them an opportunity to make a decision. “You know, this sounds OK. I'm willing to do this and move on.”

[00:03:33] Moderator: Judge McDermott, you mentioned remote mediation. What kind of impact have you seen the pandemic have on virtual mediation for PI disputes?

[00:03:45] Judge McDermott: You know, when it started, I was really dubious about whether or not remote mediations were going to be as effective as in-person mediations. And sometimes they aren’t.

For a lot of personal injury cases—and I guess you can euphemistically call it the “garden variety” personal injury cases—remote mediations work, and they work well. Again, they bring everybody together so that the mediator can talk to everybody and have input, and I think it's a really good thing.

I do think it's not appropriate for every kind of personal injury case. There are still some where you need to be in person. You need to have that personal contact. I had a mediation about two months ago that was a wrongful death case, and the surviving spouse just needed to be present, needed to have that personal contact with the mediator so she could express her grief, her sorrow, her frustration. And she needed to get it out there. I think it was really important, and I don't think that [case] would've settled if it would've been remote.

So, most mediations, most personal injury cases—I think at least 80% of them—I think remote works just fine.

[00:05:03] Moderator: Judge Heitler, what's been your experience with virtual mediation, or what kind of observations have you made?

[00:05:09] Judge Heitler: I think that—as Judge McDermott said—I think at the beginning of the pandemic, there was great hesitancy, but then people realized the courts were not open, and so they took the opportunity to go into mediation. I think that, you know, where there are cases in which there has been a very good recovery, those seem to be the very best type of cases to handle with virtual mediation because, for example, you are not looking at somebody that lost limbs or somebody that died or somebody that is—is a quadriplegic. So, I think your virtual mediations in PI cases where there is a good recovery—they're terrific.

[00:05:58] Judge McDermott: I've had adjusters tell me that they really like the remote format because they're able to stay in their office. I'm located in a remote corner of the country in Seattle, you know, and a lot of people don't even really understand where Seattle is or have never been here, and it's a bit of a trek for some adjusters to get here, but when we do it remotely, the adjusters are able to sit in their office. And I've had a number of comments tell me that they really like the format and they want to do it again.

[00:06:27] Moderator: Judge Heitler, how do lawyers need to prepare their clients to get the most out of mediation?

[00:06:33] Judge Heitler: Well, I was a practitioner for many years before I went on the bench, and I always would sit with clients and explain that first of all, the demand had to be reasonable. If it was a ridiculous demand, that certainly would in many instances close down a really good mediation. I think that the client has to be told, if you have questions about something, you can always, you know, ask me about the question, but we have to do it in private.

I always told the client to please listen to the judge when the judge was talking about the case. Most judges—hopefully—will only speak to a client in the presence of the attorney. I found many times that I would be in the room, and then I'd go outside and talk to the client privately. Some understood exactly what the judge was saying and the clues being given. And others, I wondered if they were, you know, even in that room for a minute. So, I think the client has to understand [that] if you want to settle this case, then you have to go in with the frame of mind [of] I want to settle it. I want to finish it.

[00:07:57] Moderator: And Judge McDermott, what would you tell lawyers?

[00:08:01] Judge McDermott: I think [there are] a couple of things that I would tell the client. I would certainly tell [them] that this is your opportunity to tell somebody—an impartial neutral—your side of the story. So don't hold anything back. Tell them how you really feel. This is a confidential procedure. Nothing that you say to the neutral is going to be shared with the other side unless you give permission for that to happen.

So, tell them your concerns. Tell them your frustrations, your limitations, how you're really feeling now. That's the first thing I think I'd tell them. I think I'd also tell them that this is not an adversarial process, so be relaxed. This is your opportunity to not worry about being cross-examined by someone, but to have a conversation with someone who wants to learn more about you and more about your case.

Lastly, I think I'd say to them—we talk about a range of value. I think it's wrong for people to tell their clients about a certain number. Let's say I want to settle this case for $40,000 and not a penny less. It might be much better for them to say, “Look. Let's talk about a range. Maybe, you know, maybe $30- to $40,000 or something in that range. Let's talk about that.” So at least prepare their clients to be flexible because flexibility and compromises are the keys to a successful mediation.

[00:09:26] Moderator: Well, just as there are many different types of lawyers with different styles, I assume there are many different mediators with different styles and—and different approaches. How do you, Judge McDermott, as a mediator prepare for a case?

[00:09:41] Judge McDermott: That's a really good question. I like to review everything that the lawyers send me, although I don't like it when they send me 400 or 500 pages, and that does occasionally happen. But I like to really get through—in cases of injuries, I like to look at the medical records. I like to read over the police report and the facts of the accident to see if there’s any liability issues. I’d just basically like to immerse myself to figure out what the strengths and weaknesses of the case are myself so that I get a pretty good feel for a case. Then obviously, I want to know what the injuries of the plaintiff are and how badly they’re injured, whether or not they’re able to return to work, whether or not they even do work—all of those kinds of things—and how long lasting the injuries are gonna be, what’s the effect going to be 10 years from now.

I think the last thing is, I always like to have a pre-mediation telephone call with each lawyer. And I ask them, “Is there anything you did not put in writing that you want to tell me?” I’ve had lawyers tell me in the past things about their client that are very helpful that I’m able to communicate better with their client and talk to their client better because of the fact that their lawyer gave me a heads-up. For instance, one time the defense attorney [was] telling me, “You know, the adjuster seems to be stuck on this fact and this figure. Maybe you could go through that with [them].” Those have been very helpful. So, I really liked making those phone calls, usually the day before the mediation.

[00:11:07] Moderator: Judge Heitler, what about your preparation process?

[00:11:11] Judge Heitler: Well, certainly, as Judge McDermott said, preparing by reading the materials that are sent to you is extremely important.

I think if one has had a similar case before of the same type, one can reflect on what was certainly helpful in getting that particular type of case resolved. I think also generally before you go into the mediation, you’re going to find out what the demand is. Sometimes there’s a demand, but there has never been an offer.

Sometimes if there is an offer that’s giving you a hint as to where this may go—and frankly, as I mentioned before, if the demand is so out of the range of what it should be, that may tell you how difficult the mediation may be to get them to the final point of saying, “Settled.”

[00:12:13] Moderator: And Judge Heitler, you know that mediations don't follow just one playbook. Tell us a little bit about how parties and mediators can customize their mediation.

[00:12:24] Judge Heitler: Well, I think that there are many, many variables, certainly from the lawyer's point of view. The lawyer should really prepare the judge, as was said, for the type of client. Also, one has to really pick up very quickly: Do these people want to settle? Now, there is a certain reality here. If they are choosing to go to mediation and pay for mediation, one would hope that everybody does really want to settle the case, but then I think the mediator has to pick up very quickly: Is there someone—one of the lawyers or one of the clients—who says, “I really want to,” but really perhaps does not want to or only wants what that individual wants in terms of a number?

No case is ever the same because the people are always different and the facts [are] always different. The mediator has to determine: Is the client out of control, or is the lawyer frankly not strong enough to let the client know what he or she thinks about an offer that's put on the table that's reasonable?

Many variables. I think that's the interesting part of being a mediator—to walk into something that you've never seen before and get it done.

[00:13:59] Judge McDermott: I think what Judge Heitler said is right on point. I would probably want to know also what information has been exchanged with the other side. Oftentimes, I'll get a memorandum from the attorney, and it'll say on it “strictly confidential, not to be shared with the other side.” My initial reaction is if I can't share this with the other side, how are we gonna be able to resolve this case?

[00:14:24] Moderator: Right.

[00:14:25] Judge McDermott: So I try and go through that and find out exactly what it is they don't want to share and why. And maybe I can make some inroads into sharing at least some of that with the other side so that there's a good reason for the other side to maybe up their offer, for instance, or more realistically look at their demand. I think that the more information objectively that is out there, the easier it is in the long haul to try and get people to come together for a compromise.

[00:14:54] Moderator: What are some of the other techniques that you use to break a logjam and settle cases?

[00:15:01] Judge McDermott: One of the hardest things for a mediator, I think, is when people have just dug their feet in. I try really hard to talk to people about what could happen to them if they go to court, because their only other option if they can't settle the case is to try the case. Lots of times we go through and talk about what a jury could do or what a judge might do if it's a judge case. Most of the time, a jury case is heard. And maybe [I] even talk about what kind of potential verdicts there are out there, and the fact that you lose control and you let somebody else make the decision.

I try and talk to the plaintiff, especially about that kind of thing and the cost of going to court. The cost of having a doctor come and testify in person or an expert witness—the enhanced costs that maybe they hadn't thought about, that usually come out of their share in some form. Then sometimes I'll give them a mediator's proposal.

I don't do it a lot, but every now and then, I will. What a mediator's proposal is—it's my idea of a compromise settlement position that works for both sides. I'll go through and I'll tell them why, and I'll usually put it in writing, and I'll usually put down the reasons why. I usually have at least three reasons why I think it's a good conclusion, a good way to finish this. Then I'll give them like 48 hours to think about it and let me know. If we're truly at a logjam, I've used mediator’s proposals maybe a half dozen to a dozen times. Most of the time, believe it or not, they've actually ended up resulting in a settlement—not all the time, but a good percentage.

[00:16:41] Moderator: Judge Heitler, any tricks or techniques up your sleeve that you—that you bring out?

[00:16:47] Judge Heitler: Well, a few things. Sometimes, when I see a logjam, I move to a discussion of saying, “OK, folks. We're having difficulty with this issue, but I just wanna review what we have already agreed on.” Now, of course, hopefully, if there's gotten to be a logjam, it's at a point way into the mediation where there has been agreement on certain things. Then I would hope—if it's one particular issue, if I don't have to review what's happened—then I might say, “OK. Let's leave this particular issue and move on to another issue.” Also, I might say, “Let's take a break.” And I would wanna speak to the lawyers again to find out is there something that they know about this that I don't know, especially if I believe it's an issue that should be, frankly, a no-brainer for everybody to agree on or for one side to agree on.

You know, many times people come in, and initially, they'll tell you what is most important, but then you find out, as you move forward, what they told you was not the most important, but there are other issues that are most important. Then again, there are times that I will ask both the lawyer and the client for each side to come in and speak to me separately. Then I'll go back into a joint session.

[00:18:21] Moderator: Well, both of you, as you've mentioned, were in private practice before going on to the bench and becoming mediators. How do you know if your mediator's style is right for your dispute?

[00:18:32] Judge Heitler: Well, you know, as I said, one of the advantages of mediation is that you can review the credentials. Certainly, at JAMS, all of our credentials are up to be reviewed, but remember, we live in the world of the internet. I would gather if one put the name “McDermott” or “Heitler” into the little box to search, someone can find a lot more. There's also, again, the opportunity to check around because remember, it is the lawyer that's going to say to the client, “Look. I've researched these folks, and this is what I think.”

Maybe they'll say one person or, “Here are two people. What do you think?” So, I think that one, if you are the client, pretty much you are depending upon what the lawyer's suggestion is. The lawyer may even say, “Look. I mediated with these two judges, and I like the way they mediate. I like their style. They don't pressure anybody. They listen, which is a very important part of being a mediator.” And then finally, it is the client's decision.

[00:19:50] Moderator: And Judge McDermott, what about you? How do you know if your mediator style is right for your dispute?

[00:19:57] Judge McDermott: Well, that's a really—that's a really good question. I think that what I've tried to do as a mediator is to not do something I'm not. I try really hard to—to mediate cases according to my personality, according to who I am. And not everybody probably likes that. And there are lots of mediators available.

So, I don't make any bones about what I try and do and what I try not to do. I try and be very personal. I try and have personal conversations with the parties and their attorneys. I try and be pretty frank. I don't try and beat around the bush. Sometimes lawyers don't necessarily like that approach.

I will point out the weaknesses of their case—privately to them in their own room—but sometimes lawyers don't really like that. And I don't mind going back and forth with money offers, but I like to only do that after we've gone through a thorough analysis of a case and we have reasons for different positions. Again, there's a way of getting there, and there's different ways of getting there.

I think the lawyers have an obligation to their clients to pick a mediator whose personality they feel the client will be able to identify with and [who] will be able to have credibility. It just—you know, we're all different; everybody's different. Judge Heitler said there's not two cases that are the same.

There's not two mediators that are the same. So, part of the skill of a lawyer is to try and match the mediator up with the case. I think the mediator can just—by being themselves, they can—people can kind of tell whether or not that person, the personality, the approach of the mediator is appropriate for that kind of case.

[00:21:44] Moderator: Well, there aren't too many mediators with as much experience and credibility as the both of you. So, I want to thank both you, Judge McDermott, and [you], Judge Heitler, for this conversation. Really appreciate it.

[00:21:56] Judge McDermott: Thank you.

[00:21:57] Judge Heitler: Thank you.

[00:21:59] Moderator: You've been listening to a podcast from JAMS, the world's largest private alternative dispute resolution provider.

Our guests have been JAMS neutrals Judge Sherry Klein Heitler and Judge Richard McDermott. For more information about JAMS, please visit www.jamsadr.com. Thank you for listening to this podcast from JAMS.