I am in my 28th year of practicing law. I am in my 18th year of being a mediator. Sometimes there is an interesting confrontation between the 2.

We were asked by one of our clients, a life insurance company, to defend it against a claim in South Texas that an agent had misrepresented the policy to the insured. The first interesting fact about the case was that the policy was sold in 1993 and cancelled by the insured in 1994, when it was replaced with a policy with a greater death benefit from another company. The lawsuit against our client was filed in 2005. The second interesting fact was that the Plaintiff was seeking damages of almost $11 million. The life insurance policy the client had sold to him had a death benefit of $350,000. The insured had paid approximately $220 per month for a year; so the insurance company received about $2500, the bulk of which was paid to the agent in commission. The third interesting fact is that the insured was allegedly told by the agent that after 8 years the insured would not have to come out of pocket for premium, but rather the policy would generate sufficient income to pay the premium. Again, the insured cancelled the policy after 1 year, and was never requested by the insurance company to pay anything after that time.

As a mediator, my initial thought was that assuming everything the Plaintiff said was true, which was a big assumption, what could be done for this person? Immediately my thought went to getting the Plaintiff some type of paid up insurance policy as a compromise. This was rejected by the Plaintiff who wanted cash. This struck me as outrageous. The deal with the insurance company was that the named beneficiary of the policy would receive the money when the insured died. Why should the insured get money during his life? Try as I might, I could not reconcile the "just result" of some type of replacement policy with the "expedient result" of handing over money.

As a lawyer, I had the case prepared for trial and was ready to show the flaws in the claims of the Plaintiff. However, the case was pending in a Texas county notorious for outrageous verdicts against insurance companies. While a bad result could be changed at the appeal level, it would only be after spending a lot of time and money. Lawsuits are designed for one purpose, generally. To obtain an order from the Court declaring that one party should pay money to another party.

Recently I was reading a novel by Robin Cook and there was a passage in there that civil lawsuits are not about finding the truth, but rather are about resolving disputes. Mediation is ofter referred to as one of the forms of Alternative Dispute Resolution. Instead of having a judge and a jury hear that evidence which the Court allows to be presented (and which the parties remember to call to the Court's attention) in mediation the parties meet with a neutral facilitator to try to reach a resolution that each will accept. Rarely does mediation in a situation like this involve getting to the truth. Indeed, very quickly the truth and the facts have very little to do with reaching a resolution. Instead, it is merely seeking a number that will be paid and accepted.

For the insurance company, we did find a number that the Plaintiff was willing to accept, which was dramatically lower than the number that had been demanded. Still, it was money that the Plaintiff gets to use right now for whatever he wants; leaving behind his earlier goal of having money go to beneificiaries on his death.