This episode of Mediation Tales is from decades ago, but it offers a lesson in creativity and the use of objective criterion (as advocated in Getting To Yes.) And beyond mediation theory and practice, there is an element of karma.
FACTS: One evening, a minivan with seven older ladies was driving back from choir practice at their local church. Suddenly, a drunk driver blew through a red light and violently collided with the minivan. All seven of the ladies were injured to one degree or another. In an example of karma occasionally playing a role in human affairs, only the drunk driver was killed.
Unfortunately, as is common with people who have a history of DUI, the deceased driver had minimal insurance coverage and no personal assets. Litigation is filed and the consolidated cases are assigned to me for mediation. The injured ladies have separate counsel representing their interests. All counsel, plaintiffs’ side and defense side, were well experienced and cooperative with each other and with me.
To give context, this all occurred before the Ohio Supreme Court handed down or even thought of Robinson vs Bates, 112 Ohio St. 3d. 17 (2006) regarding whether or not jurors can hear about collateral sources reducing hospital and medical bills. All counsel in the mediation understood that total medical specials were the measure of how badly someone was injured, and that there wasn’t enough coverage to fully compensate every plaintiff. There were no lost wages and no permanency.
Rather than get everyone into a tug-of-war in a zero-sum game of who gets the biggest share of the available limited insurance, I suggested a mathematical approach. After discussion with all counsel, we all agreed on the following formula:
We would add all the medical bills of all seven plaintiffs to get a total specials number. We would then divide the total specials number by each plaintiff’s individual medical bills to get an individual percentage. All seven percentages added up to 100%. The next step was to multiply the individual percentages by the total specials amount, which yielded the proportionate share each plaintiff should get from the pool of insurance. The plaintiffs with larger medical bills got a larger share of the insurance proceeds, but everyone got something based on their comparative degree of injury.
We did the math with the help of a pocket calculator (this case occurred long before cell phones!), double checked our numbers, and all counsel consulted with their clients. Everyone agreed. Cases settled.
MORALS: (1) A good mediation should look for standards that don’t depend on emotion or advocacy, and that everyone can agree on as “fair.” (2) It is best to avoid zero-sum game thinking when trying to allocate limited resources whether it is insurance coverage, financial accounts, or real property.