Subjective injuries present a multifaceted problem for defense lawyers. To clarify, subjective injuries refer to instances where a plaintiff makes a claim for chronic pain or a mental illness that is difficult to objectively substantiate through scientific or medical evidence.
This then raises an important question: what is the difference between cases involving chronic pain where the plaintiff receives compensation for his or her injuries and those cases where no such awards are made? The answer appears to be related to the plaintiff's credibility. Specifically, because of the lack of objective evidence that is available to support a claim for chronic pain, almost all of these cases boil down to the issue of credibility.1 This point is supported in the FSCO decision, Quattrocchi v State Farm. In particular, Arbitrator Makepeace stated that in cases involving chronic pain, where there is no objective evidence available, the credibility of the plaintiff is critical.2
This then gives rise to another issue for defense counsel in the context of mediations. Specifically, faced with a lack of objective evidence, there will likely be a tendency for defense counsel to attend mediations with skepticism over the alleged injuries. Defense counsel must balance the need to inform the plaintiff of the defense position regarding the veracity of the plaintiff's claims with making the mediation a productive exercise. An overly aggressive approach may cause the mediation to quickly end.
The purpose of mediation is to settle a dispute without the use of litigation or at the very least, to better understand the opposing side's case. With this in mind, it becomes clear why a mediation may well fail when the defense enters it with the intention of aggressively casting doubt on the plaintiff's subjective injuries, and when the plaintiff is left to defend his or her position. In short, this practice has the effect of turning the mediation into a courtroom, which is the opposite of what a mediation is designed to achieve.
So then, how should defense counsel approach mediations that involve subjective injuries in a way that balances zealous advocacy on behalf of the insurer with a way that furthers the objective of mediation?
1. The Principled Approach to Disputes
In "Getting to Yes: Negotiating Agreement without giving in", Fisher and Ury discuss the principled approach to negotiations. Applying this method to mediations can be an effective way for defense counsel to approach chronic pain claims and the difficulties that arise from them. The principled method Fisher and Ury suggest involves the application of four elements: (a) separate the people from the problem, (b) focus on interests rather than positions, (c) invent options for mutual gain, and (d) insist on using objective criteria.
(a) Separate the people from the problem.
Fisher and Ury suggest that a negotiator should not view the opposing side as an opponent but rather one should attempt to work with them in dealing with a mutual problem. In short, they suggest that one should be "soft on the people" but "hard on the problem".3 To achieve this, in his article Mediation and the Psychological Injured Plaintiff, David Alcorn suggests that a party should strive to frame statements and issues in neutral and non-judgmental language.4
(b) Focus on interests rather than positions.
Fisher and Ury suggest that instead of focusing on positions (i.e. believing the plaintiff is exaggerating his or her injuries) one should instead focus on reasons (i.e. stating that a doctor has found inconsistent reports of the plaintiff).5 David Alcorn suggests that in some cases, the interests of "psychologically injured persons may extend far beyond monetary considerations".6 Consequently, applying this principle may uncover those interests, thereby facilitating settlement. The simple opportunity for a plaintiff to be heard and express his or her difficulties directly to the defense side often carries a therapeutic value with positive results in terms of resolving the claim. Therefore, letting the plaintiff speak at a mediation may prove highly beneficial.
(c) Invent options for mutual gain.
As David Alcorn points out, this notion of mutual gain is harder to achieve in the context of personal injury claims since the insurer and the plaintiff will not likely have an ongoing relationship.7 However, defense counsel should still continue to brainstorm solutions without resorting to criticisms. For example, an apology directly from the insurer can go a long way in creating a positive environment for the mediation. This is particularly true in cases where liability is not an issue. In cases where liability is contested, the insurer can still express remorse for the plaintiff's circumstances without the admission of liability.
(d) Insist on using objective criteria.
This strategy involves insisting that the result of the mediation be grounded on an objective standard.8 This can be challenging in cases involving mental health and chronic pain in that there is a limit to how much objective evidence can be obtained. However, there are standards that are more "legitimate" than others. For instance, instead of simply stating that the plaintiff is not injured to the extent he or she claims to be, one can make reference to the opinion of experts or to determine how similar cases have been treated in the past.9
2. Other Strategies to Manage Subjective Injuries in a Mediation
Michael Carbone suggests that parties should focus on the evidence available.10 This then allows parties to be able to focus on the facts before them rather than on theories or allegations. Further, he advises counsel to avoid antagonistic remarks.11 This becomes more difficult when defense counsel is not convinced by the plaintiff's claim. However, in these situations employing the "Magical Paradox" technique may prove useful. An example of this technique is:12
"I bet you feel that nobody knows what this situation has done to you; how it has broken you up inside, and made it difficult for you to believe that you will ever be able to have a normal life again. Isn't that so?"
The "magic" in this technique is that you have indirectly stated what the plaintiff is thinking, enabling him or her to agree with what you are saying. However, in saying this, you have not agreed with the claimant, or even accepted their version of facts to be true. Instead, all the speaker has done is convey an understanding of the way the claimant feels.13 This technique is also effective because where the defense counsel can demonstrate an understanding of the plaintiff's position, it is more likely that plaintiff will listen to and understand the positon of the defense.
With this in mind, one of the main goals of the mediation should be to allow the plaintiff to share his or her story so that they can feel heard. To further achieve this result, defense counsel can state what is believed to be the strengths in the plaintiff's case (e.g. stating that the plaintiff makes a good witness, plaintiff has a good lawyer etc.)14 Once the plaintiff feels they has been heard, defense counsel can proceed with "...and this is our position".15 In approaching the conversation this way, the plaintiff is much more likely to understand the positon of the defense, as opposed to the defense immediately rejecting the claim for mental illness or chronic injury.
In mediations involving mental health or chronic pain claims, defense lawyers are often presented with conflicting and inconclusive medical evidence. The result is that they are being prompted to rely on the accounts of the plaintiff. However, these invisible and subjective injuries should not be readily dismissed. This may result in increased claims against the insurer. In Fimiani v Liberty Mutual Insurance Company, a special award was made against the insurer for unreasonably withholding benefits and not accepting the plaintiff's claim of ongoing pain.16
Instead, if settling the dispute is the goal, then defense counsel should not be openly dismissive of the plaintiff's injuries, but instead make the plaintiff feel heard by employing the tactics discussed above. If the defense does not believe the claim to be genuine, it would be prudent to rely on medical evidence, expert reports, or surveillance rather than resorting to direct attacks on credibility.
1 Chronic Pain, the Dilemma for Defense - Nova Scotia Barristers' Society Archives, online: Nova Scotia Barristers' Society
2 Quattrocchi v State Farm (September 1997), OIC A-006854
3 Roger Fisher & Willam Ury, Getting to Yes: Negotiating Agreement without Giving in, 2d ed (UK: Penguin Group, 1981) at chapter 2.
4 David Alcorn, "Mediation and the Psychological Injured Plaintiff" (1996) 2 QUT 162 at pp.168-169.
5 Supra note 4 at chapter 3.
6 Supra note 5.
7 Ibid at 170.
8 Supra note 4 at chapter 5.
9 Supra note 5 at 170.
10 Michael Carbone, Mediation Strategies: A Lawyer's Guide To Successful Negotiation - Mediate (April 26, 2016)
12 Jeff Kichaven, When Logic Just Doesn't Work - Mediate (July 2005)
13 Jim Bleeke, Mediation Strategies: What Plaintiffs Really Want
16 Fimiani v Liberty Mutual Insurance Company (11 January, 2000), FSCO A971518.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.