Mediating the low-dollar, high-emotional-content case.

• Author: Stieglitz, Val H.
• Position: Conning the IADC Newsletters

This article originally appeared in the May 2010 Alternative Dispute Resolution Committee Newsletter.

Big cases get the headlines and are featured prominently in our firm brochures and our Web biographies. The reality, though, is that the overwhelming majority of cases filed in every court, every year, are not really "big" cases from a dollar standpoint. The legal system processes vast numbers of cases every day that present fairly routine legal issues and fairly modest damages claims; and which are generally important or "big" to one person only--the person or business filing the claim.

Every broadly-experienced practitioner and claims professional is familiar with these kinds of disputes: the personal injury case in which the objective injury does not seem significant, but has diminished the Plaintiff's ability to do something that is meaningful in their life; the case in which the Defendant has, to the Plaintiff's way of thinking, done something to insult, belittle, or demean them; the case in which technical application of contract language threatens the Plaintiff's ability to earn a living or his family's financial foundation; the case that is, indeed, based upon a simple misunderstanding.

These cases are different from high-dollar disputes between business entities seeking to protect competing commercial interests. They arise from different motivations and have a unique emotional dynamic. And for Defendants attempting to resolve these kinds of cases on a reasonable basis, they call for some different thinking. Below are some thoughts and observations, distilled from scores of these types of cases that may be helpful in approaching these kinds of claims.

1. Little Cases Can Bite Hard:

   We all have a natural tendency to prioritize, and it is easy to allow the cases with a large price tag to rise to the top, and those with what we perceive as a low price tag to drift to the bottom of our attention. This is very dangerous. The case reporters are full of cases that might have seemed to have a low dollar value, but which resulted in large verdicts because something in the case struck a chord with the jury. The lessons in terms of preparing to mediate a "small dollar" case are two-fold: First, never assume that because the case seems to involve meager damages, that everyone would naturally see it that way; second, devote as much serious thought and analysis to preparing to mediate the "small" case as the "big" case. This sounds like obvious...