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THE ADJUSTERS’ AND LAWYERS’ REMOTE MEDIATION SECRET

COVID-19 changed our lives in oh-so-many ways. Courthouses and government buildings shut, and we were forced to suddenly embrace virtual platforms like Zoom, GoToMeeting, WebEx and Microsoft Teams.

Now that restrictions are lifting, many of us don’t want to go back to our pre-pandemic business model. We want to keep working from home, at least some of the time.

And we want mediations to stay remote.

Efficient and Effective
Remote mediation relieved attorneys and claim professionals from coping with stressful and unproductive traffic jams. Decision-makers could call in from anywhere, avoiding the obstacle of the real decision-maker not being present at the mediation. Participants with a history of vitriolic interaction particularly liked the absence of close personal contact.The Secret Benefit of Remote Mediation
Shhh! What lawyers and adjusters really want to keep secret is that they like not sitting with their clients in caucus throughout the mediation.

In traditional mediation, the parties usually break into separate caucus rooms. The mediator acts as a shuttle diplomat, walking between the rooms to confidentially discuss offers and demands and to convey information in a way to facilitate settlement. When the mediator is not in the caucus room, lawyers, adjusters and clients can review what has happened and plan their next move.

And then they sit.

They make small talk. The lawyers, especially, try to charm their clients in a way likely to encourage further referrals.

Sometimes, contrary to instruction, clients bring children to the mediation. Lawyers and adjusters find themselves literally and figuratively baby-sitting their clients during periods which can stretch on for what feels like forever while the mediator talks to the people in the other room.

In contrast, in remote mediation, the mediator electronically moves participants who physically remain in their own offices or homes into virtual, separate caucus rooms. When not talking with the mediator or their own team, participants are free to engage in other activities so long as they remain fully available for the mediation. Suddenly, adjusters and lawyers found that they could attend to other (perhaps billable) work. Clients can work or attend to other obligations.

Will We Go Back?
Some negotiators maintain that being able to physically look one’s opponent in the eye and assess body language are critical. Research shows that we are all actually poor in correctly evaluating these supposed indicators.

Most mediation veterans want to keep things virtual and productive.

New Law Opens Narrow Window For Increased Survivor Damages

We are all aware that COVID restrictions disrupted the ability of civil litigants to get a speedy trial. In some cases, the plaintiff died waiting for trial. Though the action survived, upon the death of the plaintiff, non-economic damages were no longer recoverable. The California legislature addressed this issue by amending California Code of Civil Procedure (CCP) 337.34 to add:

. . . in an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable may include damages for pain, suffering, or disfigurement if the action or proceeding was granted a preference pursuant to Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026.

Preference Cases
CCP 36 allows three groups of litigants with a substantial interest in the case to move the court to try the case within 120 days:
— A party over 70 years whose health is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation
— A party under 14 years of age
— A party in any other case who requests the court to exercise discretion to serve the interests of justiceParties or their representatives who had successfully moved for a preference before 2022 can seek damages for a decedent’s pain, suffering, or disfigurement. Conversely, parties in those pending cases who did not qualify or did not move for a preference will be denied the ability to recover non-economic damages.

For example, if a 69-year-old plaintiff who had filed a case in 2021 dies in 2022 before getting to trial, the representative cannot seek general damages on behalf of the decedent, even if they moved for preference in 2022.

Cases Filed 2022-2025
The new law is temporary. It defines a four-year window. Notably, the law also requires a plaintiff who recovers damages pursuant to the new law between January 1, 2022 and July 31, 2024 to submit a report to the Judicial Council detailing the particulars of the judgment or court-approved settlement. In turn, the Judicial Council will report the results to the legislature on or before January 2025. The legislature can then consider whether to make these provisions permanent.

Settlement Considerations
The value of cases which qualify for this expanded damages rule has increased. In some cases, the added value will dwarf the economic damages. Parties must consider the added exposure to defendants in evaluating cases for settlement. Additionally, in cases where settlement does not require court approval, there may be some value to creating settlements which will not be reported to the Judicial Council.

New Restrictions on Confidentiality in Settlement Agreements

Effective January 1, 2022, amended California Code of Civil Procedure §1001 expands restrictions on confidentiality clauses in settlement agreements.

Previous law barred such clauses in agreements settling filed civil or administrative actions alleging sexual assault or sexual harassment. Only the identity of the claimant and the amount of the settlement could be protected.

The new provisions expand the prohibition to include

1) acts of workplace harassment or discrimination not based on sex, and

2) acts of harassment or discrimination not based on sex by the owner of a housing accommodation.

WHEN SMALL BUSINESS CO-OWNERS FIGHT

Disputes among co-owners in a closely-held business can arise over a number of issues, such as day-to-day control, compensation, or access to information. Left unresolved, these arguments can fester and eventually destroy the business.

Not only are small business co-owners like a family– they are likely to be members of an actual family. While we know that family-owned small businesses tend to weather management storms better than businesses which lack that link, family dysfunctions can seep into management of the business.

Co-owner mediations can seem more like divorce negotiations than business disputes. A mediator can calm parties’ anger, help resolve the current dispute, and create a plan to manage future disagreements so the business survives.

When you are in the middle of a co-owner dispute maelstrom, call me to discuss whether mediation can help. It’s free and completely private under California’s strict mediation confidentiality laws.

Why Your Cases Aren’t Settling

Why aren’t your cases settling? In his book, How to Talk to Strangers, best-selling author Malcolm Gladwell explains that we normally DTT, Default-To-Truth, when we receive communication. When we default to lies instead of to truth, we undermine our ability to get to resolution.

The Litigation Defaults-To-Lies
In almost every facet of our lives, most people take information at face value until something convinces them otherwise. Actually, it’s the only way a society can survive. Unfortunately, though, Gladwell points out, our default to truth lets people like Bernie Madoff, Jerry Sandusky and simultaneous CIA analyst and Cuban spy Ana Belen Montes perpetuate their crimes. Evidence built up, but the people who received the information rationalized it away.

The other end of the spectrum is when a person suspects everyone of being a liar and treats them that way. Gladwell analyzes the 2015 Texas police handling of the Sandra Bland arrest. Officer Brian Encinia habitually stopped motorists on the thinnest, and sometimes manufactured, pretexts as often as multiple times per hour, an off-the-chart frequency rate. He then found reasons to escalate the situation. The “view everyone with suspicion” philosophy of policing originated as a response to crime in a tiny geographic area, but, Gladwell writes, went out of control.
Litigants are often in the default-to-lie camp. When an adjuster was told a claimant’s position on an issue, the immediate reaction without any further information was, “She’s a liar.” Many claims and litigation professionals default to fight every issue, even when that’s a losing argument.

Transparency is the term for another negotiating problem, though it might be better called non-transparency. Transparency assumes that body language reflects what is going on in a person’s mind. An early reaction to remote mediation was an objection to not being able to closely observe someone’s facial expressions and body language. Gladwell documents that we are all very poor at correlating those things, even judges who use observation to set bail and police officers who are trained in assessing facial and body signals.

We humans can have many things going on in our brains at the same time. A facial expression may reflect something going on that has nothing to do with that person’s interaction with us at that moment. What’s more, different cultural groups use and interpret body language differently. The face 91% of Spaniards identified as angry was seen that way by only 7% of people who lived in the Tobriand Islands in the Solomon Sea.

The Lesson

Even when you are sure your evidence unquestionably contradicts your opponent’s position, active listening with an open mind can efficiently lead to settlement. Defaulting to lies does not.