Rosa and Gordon were hardworking people, she with her church. 4. Rosa and Gordon. Charles W. Crumpton THE ACCIDENT THE LAWSUIT

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1 4. Rosa and Gordon Charles W. Crumpton THE ACCIDENT Rosa and Gordon were hardworking people, she with her church and at home and he as a commercial truck driver. They loved to take long rides together, often with good friends, on Gordon s Harley. On a trip with friends for a scenic ride around the island of Hawai i, as they went around a sharp turn, part of the undercarriage of the motorcycle hit the roadway and they crashed. Rosa was paralyzed from the chest down, a T-2 paraplegic. Gordon, fortunately, had only minor cuts and scrapes. THE LAWSUIT Rosa and Gordon hired an attorney who investigated and fi led suit against the motorcycle manufacturer and an aftermarket motorcycle parts manufacturer. The suit claimed that the motorcycle design and 51

2 parts were defective in not leaving enough clearance above the roadway on sharp turns. The suit claimed that those product defects caused the accident, Rosa s paralysis and a mountain of related losses. Their expenses and losses were calculated by economic and life-care planning experts based on research, statistics and experience in such cases. The experts estimates totaled several hundred thousand dollars for past and future bills for Rosa s medical treatment and rehabilitation therapy and for Gordon s loss of income for time he had to take off from his truck driving work to care for Rosa. In addition, the suit asked for several million dollars in compensation for her pain and suffering and the effects on their activities and enjoyment of life. The manufacturers of the motorcycle and the parts claimed that the accident was caused by Gordon s negligent driving and denied any defect in the motorcycle and parts. The manufacturers also disputed some categories and amounts of Rosa s and Gordon s claims for losses, expenses and compensation. DIVERGENT PERSPECTIVES Recognizing that the suit would be extremely lengthy, expensive and diffi cult to prepare and take through trial, Rosa, Gordon, the manufacturers and their attorneys decided to try mediation to see if they could settle the case, and agreed for me to serve as the mediator. Before the mediation session, they provided their case descriptions and documents and we met in a joint session and separate sessions to get as accurate and complete as possible an understanding of the case information and the parties interests, priorities and perspectives. Those meetings indicated that the parties were far apart on their settlement evaluations. After a meeting with Rosa, Gordon, and their attorneys, their lead attorney told me confi dentially that Rosa and Gordon were feeling overwhelmed, discouraged and unable to cope with the trauma of the accident; Rosa s permanent paralysis and limits on her life functions and activities; Gordon s having to take time off work to care for her and having to take over pretty much all of the home chores and work; the manufacturers focus on blaming Gordon for the accident and trying 52

3 to make it look like Rosa and Gordon were asking for more money than they deserved or needed; the length of time that the lawsuit seemed likely to drag out; the mounting expenses of the lawsuit that their lawyers were advancing but that would have to be repaid from any settlement or recovery they received, which would reduce their net recovery; the uncertainty of the lawsuit, which they thought might get them less compensation than they would need after their legal fees, experts fees, and expenses were paid from any recovery; and their increasing feeling that they wouldn t be able to get through it all and that it might turn out badly for them. These factors put so much strain on them and their relationship that they had told their attorney privately that they thought they might separate and divorce if the case could not be settled soon in a way that would enable them to rebuild their lives. For Rosa and Gordon, the case was intensely personal. The accident brought about severe change and dizzying damage to them as individuals and as a couple. They increasingly doubted whether they could cope any more, unless they got some positive help soon. In contrast, the manufacturers looked at the case from a legal and economic perspective. They focused on legal fault for the accident, which they put on Gordon as the driver. They also believed that what they considered to be Rosa s and Gordon s objectively verifi able future medical care expenses and income losses were signifi cantly less than those projected by Rosa and Gordon s life-care planner. The gap between the parties perspectives, settlement valuations and underlying interests and values seemed huge. The manufacturers didn t seem to see things from Rosa and Gordon s perspective or to understand (or care) what might enable them to rebuild their lives, individually and together. At the same time, Rosa and Gordon didn t understand the manufacturers perspective and the legal system in which the dispute was mired. They did not recognize that the legal system s value of things they claimed might differ from their personal and emotional valuation of those claims. 53

4 THE DISABILITY CONSULTANT To seek an experienced, neutral perspective that might help bridge the gap between the parties, I asked Rosa and Gordon if they would be willing to meet and talk with an experienced disability consultant, together and individually, in their home, about their situation. Rosa said she felt she had been poked and prodded and put under a microscope by too many experts and lawyers already, didn t feel that any of them really understood her or offered any real solutions that could work for her, and didn t really want to go through that again. I explained that the person I would like to have meet with them was himself a T-2 paraplegic from an auto accident and spent his life and his work working with people and businesses on adapting to disabilities. I also explained that his insights and recommendations might help the manufacturers better understand the effects of her injuries and what was needed to help her and Gordon rebuild their lives. Rosa and Gordon agreed to have the neutral disability consultant provide his evaluation, and the manufacturers did, too, so I arranged the meeting. The disability consultant simply offered to do his best to understand, respect, and appreciate Rosa and Gordon s circumstances and talk with her and them about what opportunities and resources might help them rebuild their lives, individually and as a couple. He welcomed the opportunity. After their meeting, their attorney called me and told me that Rosa had been very moved by it. She said that when she saw the disability consultant drive up to their house, get himself out of his truck and into his wheelchair, and roll up the makeshift ramp to their front lanai/ porch, she said to herself, Thank God, he s one of us, and tears came to her eyes. She said they spent hours talking about the things that had changed, the things that were most important to her and Gordon, and ways they might make their lives more what they wanted them to be. The disability consultant did some research and checking and provided his report and recommendations. The plan was for them to start their own business, with Gordon becoming an independent 54

5 commercial truck driver, Rosa learning the business accounting and computer skills to manage the business, and the business providing the health insurance to cover most of Rosa s future health-care needs and expenses. With input from the parties experts, the disability consultant developed an estimate of Rosa s future health-care expenses that were to be covered by insurance and those that they would need to pay themselves. He also worked out a projection of the costs of the business and health-care plans. We provided those projections to the parties and their attorneys before the mediation session. Rosa, Gordon and their attorneys came to the mediation motivated to try to achieve a settlement that would enable them to carry out the plans. The manufacturers and their attorneys came to the mediation motivated to achieve a settlement that would be a better choice than the risk and expense of litigation. THE MEDIATION SESSION At that stage, one of the manufacturer s attorneys said that they would like to bring in nationally acclaimed mediator Tony Piazza for the mediation. Fortunately, Tony and I have been good friends for years, have co-mediated cases, and everyone agreed for us to comediate the case. The initial group mediation meeting focused on the tragic accident and the effects on Rosa and Gordon s life, which were respectfully acknowledged by all. All were also willing to consider starting the negotiations with the disability consultant s recommendations for Rosa s future care and their business plan. With that starting point, the separate sessions then focused on what it would take to fund the recommended health care and business plan expenses, and on negotiating an additional amount for Rosa s and Gordon s general damages compensation. That helped get past arguments over legal claims and defenses. Rosa and Gordon came off as very credible and sympathetic in the group session, the disability consultant s recommended health care and business plan expenses were considered reasonable, and tentative agreement on an amount for that made it possible to work toward an agreement on general damages 55

6 and a total settlement. In the mediation, the parties and counsel became increasingly collaborative and objective, their settlement valuations converged, and they reached a settlement. When we gathered again in joint session to confi rm and sign the memorandum of the settlement, Rosa, who was an ordained minister in her faith, asked everyone to join hands. She led a prayer of thanks to each and all for working together to help make a new life and hope possible for her and Gordon. As Dana Curtis, a close friend and one of the best mediators I know, has put it, in a sense perhaps our calling as mediators is to practice the art of the possible in enabling people to fi nd ways to connect with each other to move from misfortune and confl ict to agreement and opportunity even in a situation as devastating as this. As Rosa reminded us all to appreciate, the strength of the human spirit and its ability to connect us through mutual respect and understanding are often key to that art of the possible. SECOND THOUGHTS: Confl ict resolution often involves breakdowns or gaps in relationships and communications, and power imbalances that the legal system may be used to increase rather than resolve. Mediation tends to work best when it becomes a shared learning experience for those involved to build mutual respect and understanding. For that to happen, it sometimes helps for the mediator to look not only at what problems, confl icts, interests and priorities there are among the parties and their representatives, but also at how a respected neutral perspective might help bridge those gaps and increase receptivity and motivation to reach a mutually benefi cial agreement. One lesson of this is that sometimes mediators have to be inventive in terms of what outside resources might be helpful to move things forward, whether it be, as here, a neutral expert on key issues, co-mediation, or another resource to promote understanding and motivation to reach agreement. 56