Musings of the Mediator . . . A Picture Paints 1,000 Words

            The sticking point in a particular mediation had been proximate cause, an element in a tort case that must be proved by a plaintiff for liability to attach to a defendant. To explain proximate cause, the court in District of Columbia v. Carlson, 793 A.2d 1285, 1288 (D.C. 2002) stated: 

Proximate cause has two components: "cause-in-fact" and a "policy element" which limits a defendant's liability when the chain of events leading to the plaintiff's injury is unforeseeable or "highly extraordinary in retrospect."  . . . This court has adopted the 'substantial factor' test set out in the Restatement of Torts for determining whether a negligent act or omission is the cause-in-fact of a plaintiff's injury. The Restatement [of Torts § 431] says that "[t]he actor's negligent conduct is a legal cause of harm to another if . . . his conduct is a substantial factor in bringing about the harm. . .." (Citations omitted. Emphasis added.)

            In the mediated case, the foreseeability-of-an-injury component was not seriously questioned due to the accident dynamics—the plaintiff-driver's car was hit with enough force that the car was pushed off the road and into a fixed object, the ubiquitous tree.  Plaintiff suffered multiple soft tissue injuries including contusions to both knees, one more serious than the other. In part because plaintiff had had prior knee surgery, plaintiff’s doctor recommended conservative treatment. Plaintiff attended physical therapy. When conservative treatment did not alleviate plaintiff’s pain and other symptoms, the doctor recommended knee surgery.

            The actual person who caused the accident was uninsured; plaintiff’s claims were being handled by her own insurance company, which offered a modest settlement. The company contested whether the accident was the proximate cause of plaintiff’s knee injury and the ensuing medical costs for knee surgery and lost wages.

            After the mediation and during what I call, “The Case Autopsy Without Blame”, I reconsidered what occurred—in particular, the lingering objections: 

“They just don’t get it!” plaintiff’s counsel had lamented.

“It’s complicated,” insurance counsel insisted.

“I didn’t have to have surgery before the accident. I was doing fine! . . . and for years!” urged the plaintiff.

“It’s a causation issue. It’s complicated,” insurance counsel repeated.

            I remembered Palzgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), a seminal, first year law school torts case that illustrates foreseeability and proximate cause. Judge Cardozo, writing the opinion, contemplated:

There are some hints that may help us. The proximate cause, involved as it may be with many other causes, must be, at the least, something without which the event would not happen. The court must ask itself whether there was a natural and continuous sequence between cause and effect. Was the one a substantial factor in producing the other? Was there a direct connection between them, without too many intervening causes? Is the effect of cause on result not too attenuated? Is the cause likely, in the usual judgment of mankind, to produce the result? Or, by the exercise of prudent foresight, could the result be foreseen? Is the result too remote from the cause, and here we consider remoteness in time and space.  . . .

But the natural results of a negligent act—the results which a prudent man would or should foresee—do have a bearing upon the decision as to proximate cause. We have said so repeatedly. What should be foreseen? Id. at 104. (Emphasis added.)

            I could imagine Palzgraf on the “big screen”—a package drops, the explosion, and the trampling crowd—an unexpected chain of events that resulted in Mrs. Palzgraf’s injury. The court ultimately concluded that Mrs. Palzgraf’s injuries were not compensable because they were too remote in space and time from the alleged “cause”—the package dropping—and, therefore, were not foreseeable.

            In the mediated case, the defense fixed on an ultimate jury issue: whether the accident was the foreseeable and actual cause of plaintiff’s knee injury that required surgery. In response, the plaintiff insisted, and medical records appeared to confirm, that she was medically stable with no changes or injuries to plaintiff’s knees for over ten years before the accident. According to the plaintiff, the accident was not just a notable factor, but the only substantial factor causing the result—a knee injury that required surgical intervention. 

            In a trial years ago one attorney used a large calendar that stayed propped up during the entire trial to illustrate the passage of time between the event and subsequent repairs to damaged property  . . .  the calendar made it clear for the jury that the delays in starting repairs caused more damage to his client's home.

             Because over a decade passed between plaintiff’s prior knee surgery and the accident, I mused whether a simple timeline might have responded to the company's position on the issue of actual cause, i.e., the cause-in-fact of the need for the second surgery. Could an illustration, that might be used before a jury, have been persuasive in highlighting how and why a jury could conclude that the accident was the legal cause of plaintiff's knee injury?

And, by the way, I’ve observed that timelines and like illustrations, when case-related events are time-sensitive or occur over a significant period, work for both sides. The process of developing a timeline can also reveal over-looked information and it puts certain issues, like causation in perspective.

            Another observation, is that cases where insurance proceeds are at risk, and for business reasons, companies are motivated to reduce exposure for liability. They also have access to data and resources for analysis and comparison when determining how to value a case for settlement. This dynamic as well as the tendency for both sides to remain in litigation mindset tends to result in an emphasis on legal positions or facts that are disputed or that require an expert witness. Legal-position and facts-disputed resistance thereby becomes and often remains a barrier to resolution in settlement negotiations. 

            At impasse points like this in mediation, counsel may say, “We’ll let the jury decide.” And I often wonder, why parties would prefer that a disinterested third party decide the outcome for them? In this case, I mused about whether the future jury might view the proximate cause arguments as confusing or another tactic to avoid compensating the plaintiff for her medical expenses for the injuries from the accident. 

            In mediation, where admissibility of evidence is not at issue, parties have a real opportunity to use exhibits, illustrations, timelines, and analogies.  They are as helpful in mediation as they may be at trial to explain, persuade, and resolve different perspectives. As well, it signals how an abstract or complex concept can be unpacked and presented convincingly to a jury. 

            This is because most people are visual learners and respond to pictures and other visual stimuli. People also relate to stories that link things together and simplify complicated ideas. Word pictures and actual illustrations can and do change parties’ perspectives, positions, and opinions about things. 

            So in reflecting on this case, I wondered: What if plaintiff’s counsel had used a timeline at mediation to illustrate the pivotal causation issue from plaintiff's perspective? Would it have made a difference in how the company evaluated plaintiff's injury? 

            In conclusion, when parties have different views on pivotal, but abstract legal concepts, or complicated fact patterns that threaten to become barriers to resolution, the use of visual aids at mediation to present those issues to the other side is a way of overcoming objections. Consider your opponent with the same regard as a jury and distill complicated legal and factual issues to their most basic parts. Then use devices like timelines, pictures, diagrams, and illustrations to break impasse, and to persuade and influence your opponent about the merits of your proposals for settlement.