Stories From a Mediator #3: “The Mediator Doesn’t Know The Real Deal, But The Parties & Counsel Do.”

Plaintiff was horribly burned after a boiler exploded. In pre-litigation mediation, after many hours, the case finally settled for a six-figure sum that was less than what I thought plaintiff would accept. For purposes of this story, I’m sharing what was in my head and I kept it to myself. I realize and agree that my opinion of the settlement amount is irrelevant.

After the mediation, I was packing up. I was alone with plaintiff’s counsel for a moment so I asked him, “Why did your client accept only $XYZk? He was terribly hurt.” He replied, “My client could not open the valve so he used a hammer.” My eyes widened and I just shook my head in affirmation. In Maryland, any amount of negligence contributed by the plaintiff is a complete bar from recovery. Counsel continued, “If that got out, he gets nothing. So we had to take their best offer before discovery.”

Mediators do not know all there is to know about the case, even when stacks of material are provided by counsel and the parties share long stories about their situation. In my view, a “strong” mediator will help the parties get to a number that works for them and counsel, not some other number that won’t settle the case.