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ADR and Suspected Fraudulent Claims - Chapter 63 - AAA Handbook on Mediation - Third Edition

Author(s): 
Jeffrey Krivis
Page Count: 
10 pages
Published: 
April, 2016
Practice Areas: 
Dispute Resolution & Litigation,
ADR,
Mediation,
Mediators
Author Detail: 

Jeffrey Krivis is a Mediator and author of Improvisational Negotiation (Jossey Bass/A Wiley Imprint; winner of the 2006 CPR book award), from which this chapter is derived. A past President of the International Academy of Mediators and the Southern California Mediation Association, Krivis is an Adjunct Professor at the Straus Institute for Dispute Resolution at Pepperdine University School of Law since 1994. He can be contacted at his website, www.firstmediation.com.

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ADR AND SUSPECTED FRAUDULENT CLAIMS

Jeffrey Krivis

I. Introduction
If you were a conservative investor who was looking for a modest return on your dollar, would you invest in unusual penny stocks with no track record? Of course not; the risk would be too great, though the reward, if one of the equities turned out to be the next Microsoft, could be tremendous. My sense is that most disputants are like investors; they are not looking to achieve fame and fortune in litigation, but are looking for conservative investments (risk) with reasonable returns (reward).
Recently, I had occasion to mediate a stream of disputes for a large department store, ranging from slip-and-fall to false imprisonment. Each case was unique in its own way. The one thread that seemed to run through the risk analysis of defense counsel, in which liability was seriously in question, was whether or not there were actual injuries, and if there were, were they related to the incident in question? I wondered why there was so much concern about each case. Was I so naive as to think everyone was being truthful? Then a pattern started to emerge that was striking. Many of the claimants either did not disclose to their lawyers previous injuries which were identical to those claimed, or the lawyers were not disclosing the injuries to the other side.
For example, consider the case of the woman who claimed that a clerk ran her over with a shopping cart. Though the clerk said the woman did not fall, was fine after the incident, and continued to shop, the woman claimed massive lower-back injuries that would necessitate surgery. Also, she claimed that during all the commotion, she lost her diamond wedding band worth approximately $12,000, which was just one of many red flags for the defense. The demand to settle was in excess of $250,000, with no offer presented by the defense. A huge amount of written discovery requests, depositions, and other related litigation tactics occurred—and then it was the eve of trial.