As a practicing personal injury attorney, one of the realizations I made in my career is that grief plays a significant role in the way clients perceive and relate to their cases. The legal process I help them through is a way to come to terms with what they are experiencing and, ultimately, finding meaning in the loss. More times than I can count, I have used the phrase, “There’s a reason they call me counselor.” As an attorney studying and practicing mediation, I wanted to bring some of these insights and experiences to bear on the role of the mediator. These techniques are not proper for every mediation. These principles are helpful where the litigant seems to be overly oriented to the past or preoccupied with their loss or blame.
Grief is not limited to the loss of a loved one. The image in many people’s minds of grief is the wailing widow, veiled in black. Though death is the ultimate loss, grief takes many forms. When an injury takes a part of your life or autonomy away, that loss is grieved. There is a “death” of the person that you were before the injury. Resolution of that grief is a focus on the rebirth that can follow. As a practice pointer for attorneys when your client is obviously having difficulty processing their loss, I strongly encourage you to offer any assistance you can give but also to be cognizant of when a mental health professional is needed. Either at mediation or at trial, a client actively processing their grief will have difficulty with the legal process. That being said, a mediator that is open to working with grieving litigants can help provide a framework for healing. 
Many people are aware of the “Five Stages of Grief.” Elisabeth Kubler-Ross first proposed this framework in her 1969 book “On Death and Dying.” She postulated that those contemplating death and, by extension, experiencing grief experience 1) denial, 2) anger, 3) bargaining, 4) depression, and 5) acceptance. This is known as the DABDA model. A common misconception is that these stages progress in a linear fashion. There is an idea that one moves through the stages to a permanent state of acceptance. That is not the case. First, it is not healthy to tell someone that they can “overcome” or “be healed from” their grief. Their grief will always be with them and a healthy relationship with grief honors it too much to ever discard it. I have an injury client who lost his wife decades ago. He goes to visit her grave every year on the anniversary of her passing. I’ve talked with him about this framework, and he relates that all of the stages come back to him at the cemetery. People alternate and “regress” through the “stages” over time. People are also much more complex than any five-stage model. These behaviors/emotions, however, are a valuable framework for understanding the reactions to grief and helping people enter an emotional state that is conducive to settlement.
Denial is often strongest before I meet a client as a lawyer and likely to be weakly expressed when I come into the picture as a mediator. A person in full-blown denial is not likely to take any action to change a situation they are not acknowledging. It can reappear as grief is processed, however. In my experience, this most commonly takes the form of avoidance. Clients will be slow to respond to requests or avoid thinking about the case. Grief isn’t always the cause of this client behavior, but I think it plays a major role. I address this symptom with what I call “caring confrontation.” For the mediator, you cannot shy away from talking with the injured parties about what they have lost and even drawing out information they seem reluctant to share. There are schools of thought that raising the issue of loss will impede settlement. That may be the case if the litigant has clearly processed the loss and is prepared to engage in a business transaction. If that is not the case, the hesitancy to address the loss will leave it lurking in the background. This unspoken issue will affect decision making in ways that will be hard to decipher. By listening to and affirming these losses, the litigant becomes aware that you understand their interests. By expressing them, they can begin to work toward orienting to a future that includes the loss but is not controlled by it.
Anger is usually dominant when I first meet injury clients as an attorney. They believe that their loss is someone else’s fault, and they reach out to a lawyer to help them hold the perceived wrongdoer accountable. Anger is probably the most difficult aspect of grief for the personal injury attorney to deal with. It is a motivation to seek justice, and is often justified, but it also stands in the way of rational evaluation of potential outcomes of the case. As a mediator, anger is a significant bar to resolution. People do not tend to compromise when their emotions are running hot. My approach to anger is to reflect, but not adopt or endorse, the anger. The tactics to diffuse emotions in this situation are complex and vary widely. I have had success, however, with some general approaches. First, you can point out that the insurance company and defense lawyer are not the ones that wronged you. They have honored your loss by showing up to mediation to try to resolve the case and they are just trying to do their job. If you somehow find yourself in a joint session when anger arises or you note other strong emotional responses, get the parties into separate rooms. If the litigant is a smoker, ask them if they need a break and point them to the smoking area if you think it would be helpful. You can also, tactfully, ask them to explain why the other party’s actions have made them angry or why the anger has returned in the mediation setting. By having them express their emotions with words, you are moving them back into a place where the issues can replace the emotion. It goes without saying, but you need to be patient with the angry litigant and give them room to process their feelings without judgment.
Depression is a difficult mental state for mediation as well. It is nearly impossible to assess whether they are experiencing situational or generalized depression. When dealing with depression, be aware of the fact that it impairs decision making. Lean on the lawyer to assist you and consider a sidebar with them to determine if the emotional state is a steady one or something that seems out of character for the litigant. With depression, exercise extreme patience. Pose questions and allow the party to address it on their time scale and in their way. Try to determine what things bring them hope and joy and encourage them to talk about those things.
It would seem that bargaining would be the mental state ideally suited to mediation but that is not how Kubler-Ross used the term. Bargaining is backward looking. Successful resolution of claims occurs with future orientations. In the bargaining stage, the person experiencing grief will re-live the event and engage in thought experiments about how it might have turned out differently. It will manifest with a re-litigation of the facts of the loss and expressions of desire for a different outcome. It is related to denial in the sense that there is a mental construct that has not accepted the reality of the present. Unless someone would go back in time and accept the loss in exchange for the check on the table, the bargaining process is an obstacle to settlement. The mediator, when the past is being re-litigated, should listen for critical issues or motivations, acknowledge the litigant’s feelings, but then re-orient that thinking into the present as a way to begin thinking about the future.
Textbook mediation techniques are about resolving conflicts between individuals. There is often an ongoing relationship between the parties that needs to be repaired. This is where techniques of transformative mediation can be especially helpful. These techniques encourage examining the past harm the parties have caused to each other, reaching a place of recognitions of harm caused, and transforming the relationship for the future with an honoring of the past. That is rarely what personal injury mediation is about, but the techniques of transformative mediation can be of benefit to the person that needs to process their loss. At the core, however, personal injury mediations are about financial compensation for loss from the plaintiff’s perspective and risk management from the defendant’s. The difficult role of the mediator is to help the litigant find meaning in the resolution of their case when they will ultimately be leaving the mediation with only money. In settlement conference style mediations, I have had clients express that they feel like they are at a used car dealership. The horse-trading and bargaining can be perceived as an insult to their loss. There is a balance, then, between exchanging financial positions and structuring the dialogue so that the money is representative of something more meaningful.
In the context of grief, meaning is found in acceptance and an orientation to the future. This emotional state is also conducive to settling a lawsuit over the loss. The mediator should, with a full honoring of the loss, start to orient the conversation to the future. In a death case, talk about ways that the loved ones of the decedent honor their memory and plans they have to do so in the future. In a difficult injury case, talk about new relationships and perspectives that have formed since the loss occurred. If the Defendant is willing, consider gestures on their part that either honor the decedent or help the litigant understand the steps that have been taken/will be taken to ensure that others are not hurt. Depending on the amount of money involved, you can consider asking the litigant what they would like to do with the proceeds on the table. When I have had these conversations people have talked about travel, solving existing financial stresses, providing for their family, and paying for necessities caused by the loss. It is these things, not the money itself, that will motivate the settlement. There is never enough money to compensate for many losses. There is, however, often enough money to improve the present and provide for the future. This is the framing that the mediator should consider employing.
BATNA is an acronym for best alternative to a negotiated agreement. One aspect of continued litigation is that the past will continue to be litigated and hinder moving into the future. This is an important part of the “alternative” to a negotiated settlement. Closure has value for litigants, attorneys, and insurance companies alike.