Stories from a Mediator #1: “The Bus Rider Who Would Not Stay Down!”

Each mediation I share is a story about my experiences and observations. Each mediation story is about people, emotions, psychology, institutions, values, and so much more. Each experience offers a mediation life lesson with insights for lawyers, parties, insurance claims professionals, and mediators.

Sandy’s story is about the importance of active listening.

“The Bus Rider Who Would Not Stay Down”

A Honda car hits a small passenger bus.  The lone passenger, “Sandy” falls out of her seat. Sandy is an ethnic minority and disabled. In the immediate aftermath of the collision, the driver of the bus follows his post-accident training protocol. He instructs everyone on the bus to stay in place in order to prevent or minimize injuries. Fortunately, Sandy was not seriously injured.

Liability was admitted.

Sandy sued the Honda driver for her injuries. Liability was admitted. Thus, the issue mediation concerned damages only.

The offer: policy limits.

The Honda driver’s insurance company offered all of its money – the policy limits. The amount exceeded Sandy’s medical bills and expenses by more than three times. But the Sandy refused. She wanted her day in court, despite her lawyer’s repeated recommendations to settle.

Why?

A retired judge conducted the mediation. I observed the mediation during my time as dispute resolution director at the court.

Sandy kept repeating over and over again, “The bus driver told me to I stay down. He kept yelling, ‘You stay down!’”

After an hour, Sandy was still not willing to settle. The judge explained that her best day in court would not exceed the insurance company’s offer. To no avail. The mediation ended in frustration with the judge commenting, “You can’t reason with crazy.”

I let the process play out before I intervened. I asked Sandy what was wrong with the bus driver’s instruction to “Stay down"?” Her eyes widened. Her body tensed. She looked at me straight in the eyes and said, “I was offended! I’m not gonna stay down for anybody!”

“I hear you,” I affirmed. Pausing, I asked Sandy, “Did you think that bus drivers owe passengers a duty to be sure they’re safe after an accident?” She thought for a moment and said “I suppose so.” I asked Sandy, “Is it possible the driver in this case was trying to control the situation for your safety?” Reluctantly, she agreed. After a few more questions, Sandy realized that the bus driver was not expressing status, racial or gender superiority.

The next day Sandy accepts the insurance company’s offer.

This mediation was not about repairing a relationship. It was not about techniques that help the parties get to a number. Instead, it was about making Sandy feel heard and respected. She was angry and no one validated her during the litigation or mediation process.

Sandy’s “mediation life lesson” highlights the basic but critical importance of listening to what really bothers and motivates people. At the right times, the mediator should ask insightful questions that will reframe the problem and resolve the case.