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COVID-19 IS MESSING THIS UP, TOO

HOW CCP 599 HELPS AND HURTS

Due to the pandemic, very few cases are being tried. Reports from the legal community indicate that the absence of an imminent trial date is inducing parties to put off settlement as well.

A History of Procrastination
Lawyers have always seemed to have a reason why it’s too early to settle a case. They need to get another report, look under every rock for new information, research the heck out of every issue whether or not it is pivotal. Traditionally, discovery cut-offs and upcoming trial dates have put up a big stop sign to that process in civil cases. Without that stop sign, some workers compensation cases continue for decades.

Human nature being what it is, litigants tend to wait to the last minute to undertake the tasks necessary to close a case. The global pandemic has aggravated our proclivity to procrastinate.

When do cases settle? Legal and claims professionals have always referred to the ubiquitous last-minute settlements as happening “on the courthouse steps.” As trial dates get pushed further and further back on courts’ calendars, parties put off settlement longer.

CCP 599 Makes Procrastination Easy
When the global pandemic forced courthouses to close their doors, the California legislature recognized the obstacles to litigants’ ability to move their cases forward. The response was Code of Civil Procedure 599. This new section delays most civil litigation deadlines during the official COVID-19 state of emergency and for 180 days thereafter. If a deadline had not passed by March 19, 2020, the continuance or postponement of a trial date extended that deadline. That includes discovery cut-offs and dates for identification of expert witnesses and motions for summary judgment. Notably, the court retains the power to order litigation deadlines. Parties can also agree to self-impose deadlines which would otherwise be suspended.

At the beginning of the pandemic, no one had any idea how long this suspension would last or how we would all learn to conduct much of the court’s business remotely. Still, 599 remains in place. Some lawyers and claims professionals report that the absence of a hard deadline has resulted in fewer settlements.

Blessing or Curse?
In the last year, we have learned to manage litigation pretty well without setting foot in the courthouse. Doctors have resumed seeing patients. The suspension of many hard deadlines provided breathing room while we figured it all out. These are blessings.

On the flip side, cases are backing up. After courthouse life returns to a version of normal, it will take a long time to work through the backup. Once 599 expires, there will be a rush to undertake long-delayed tasks critical to settlement. Things could get kind of crazy, and that’s the curse.

What to Do Now
Before any more time passes, look at those files to see what can be done to set them up for settlement. Almost all mediations are now occurring remotely. Let’s settle those cases promptly, so you can better manage your caseload once the state of emergency is lifted.

Remote Mediation with Non-English Speakers

You’re ready for your remote video mediation. Everyone has the latest version of the technology and knows how to join. You rehearsed with your client; maybe you did a practice session with the mediator. You submitted the mediation confidentiality form and contact form. Now you can concentrate on the facts and the law.

Wait–What about the Interpreter?
At the beginning of every remote mediation, I confirm that everyone present has signed off on the confidentiality agreement. Yet, sometimes, against all the rules, someone else is there. Often, it’s a family member who is “just there to interpret.”

It’s inconvenient, but perhaps not a major issue. Just as would happen with an in-person mediation, someone who does have a role in the mediation can execute the confidentiality acknowledgement at the last minute. But some family members refuse documented participation in any court proceeding. Sometimes the party lacks the technology to return a signed document immediately.

Usually, the attorney can interpret for the client. Of course, the attorney is bound by confidentiality rules, but this arrangement often omits a few steps.

Get the Client What the Client Needs
An English language confidentiality agreement executed by a party who clearly needs an interpreter raises questions. Did the client sign a document without understanding it? If the attorney or a family member interpreted, that should be documented within the agreement. The person who interpreted should be a signatory, e.g.,

I translated this document and read it to Plaintiff in Spanish:___________________________________

The Settlement Agreement
Attorneys on both sides of the conflict should be concerned about the validity of an English-language settlement agreement when one or more signatories are not fluent in English. Nobody wants to be in in court after the fact because someone is contesting the agreement. The document should be read to the non-English speaker, and the interpreter needs to disclose and sign off on the settlement document. Ideally, lawyers will also provide a written translation of the document. Google Translate can create it quickly, but not necessarily with 100% accuracy.

The ultimate protection is to bring in a certified court interpreter by video or telephone and at the time of signing the settlement document.

Translating to Everyday English

You may think all the mediation participants are speaking English, but you have failed to realize that at least some of you are speaking a foreign language. The most common foreign language used in mediation is Lawyer, and Adjuster is also common. In some mediations, everyone except the claimant is speaking Insurance, but no one has thought to provide a translation.

While the professionals in the room are speaking one of these languages, the clients are often mystified, simply trusting that their counsel is looking out for them. Sometimes, though, a client’s inability to understand becomes apparent near the end of the day.

I have heard of mediations where, when it was all over, the client asked, “What just happened?” In one of my mediations, as the attorneys were finalizing the details of the settlement, the claimant asked me how a particular issue was being resolved—an issue that hadn’t been addressed at all. I had to make sure the attorneys addressed this concern with the claimant and each other.

Professionals who use jargon regularly can easily forget that people outside their closed community don’t understand what the professionals are talking about. Just as you would provide an interpreter to translate an international language, make sure everyone understands what is being said in the languages of Lawyer, Adjuster or Insurance.

Have Yourself a Merry Mediation

Have Yourself a merry mediation
Settlement’s in sight
From now on
Our troubles will be out of sight

Have yourself a merry mediation
Enjoy the holiday
From now on
Our troubles will be miles away

Here we are as in olden days
Before a suit was filed
Back to those who are dear to us
A friend, a spouse, grandchild

No more years spent in litigation
We were smarter than
To throw our time and money in the garbage can
Because we had a merry mediation now

Happy Mediation Holidays

A MEDIATION CAROL
Sung to the tune of Jingle Bells
Mediate, Mediate
Mediate all day
Oh, what fun it is to see
The disputes go away
HeyMediate, Mediate
Make nice, it’s Christmas time
Or Hanukkah or Kwanzaa time
Remember this smart rhyme
Hey

Mediate, Mediate,
A way to bring folks peace
Your settlement agreement
Will be a masterpiece

HAPPY HOLIDAYS!

The Smartest Thing to Do in Mediation

W-A-I-T: these four letters remind you to ask yourself Why Am I Talking? Silence is often your most effective negotiation technique.
 

Silence has two big benefits
The first benefit of silence is to be better able to respond. Too many people come to mediation with their attitudes so entrenched that they don’t listen. You cannot successfully respond if you have not listened—really listened—to the opposing party.

Do not multi-task. During a remote mediation on your laptop, no one may be able to see you scrolling on your phone. But you are cheating yourself of the opportunity to collect information to help you conclude the case. You can miss something important if you’re not paying attention.

Lose the condescension. If you come to mediation with the attitude that your side is righteous and the other side’s views are valueless so you don’t have to pay attention to them, the initial obstacle to reaching settlement is yourself.

The second benefit is that if you just stay quiet, the other party may rattle off information to fill the silence void that damages their own case.

Listen First

Lawyers in particular are prone to thinking about what to say next instead of taking heed of what’s happening in the moment. It’s why they can miss asking the follow-up question a deponent’s answer should have prompted. And it’s why they ignore signals that would help them settle their case.

As your mediator, my job is to recognize those missed signals and follow up with the participants to facilitate settlement.

Horror Movie Season

Halloween skeleton

It’s horror movie season.

Maybe you like to get a good scare at the movies. That doesn’t mean your most challenging case should become a Halloween nightmare.

You know which are your ugliest cases. Those are the ones where mediation can really help.

You probably want to close those files before year-end. Finding a mutually convenient date for all participants can cause delay. Start the process to schedule mediation of those files now.

 

Remote Mediation Ethics

The COVID-19 pandemic has made many things about our jobs more difficult. And yet, there is a silver lining when it comes to case resolution.
 

The inability to safely congregate has compelled lawyers and claims professionals to turn to video mediation. Some were surprised to learn the benefits. Among these are that people are more relaxed in familiar environments; they feel more in control. Less stress results in better negotiation.

Pre-pandemic, the real decision makers often did not actively participate, instructing the attorneys, “Call me if something important happens.” These people missed getting the full picture. Now, there is no barrier (or excuse!) for parties who may be hundreds of miles away to actively participate. Again, the result is a better negotiation.

Lawyers must not shun mediating via remote technologies like Zoom. On the contrary, they have an ethical duty to master the technology. California Rule of Professional Conduct 1.1 imposes a duty of competence, which includes the learning and skill reasonably necessary to provide legal services. The rule specifies that if you don’t already have that learning and skill, go out and get it or hand the case off to someone who does. State Bar of California’s Formal Opinion 2015-193 addressed the question of technology competence in a case involving e-discovery. The opinion states: “An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law.”

Of course, you will want to choose a mediator who is comfortable with remote mediation technology. One way for you to get comfortable with it is to ask that mediator for a free practice session.

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.

Business Interruption Insurance Coverage- News from the UK

It’s summertime, and temperatures are high. So let’s look at a hot insurance coverage issue: business interruption caused by the coronavirus.

 Do you know about the business interruption insurance coverage test case in progress in the United Kingdom? To create some consistency and avoid a litigation morass, the Financial Conduct Authority (FCA) has brought a test case, something like a declaratory judgment. The FCA regulates the UK financial services industry. Their work includes protecting consumers, stabilizing the financial services industry and promoting competition. Eight insurers have agreed to be bound by the test case decision. Some of those defendants, such as Zurich, Arch, and Royal & Sun Alliance, also do business in the United States. Also bound will be their managing agents and sales brokers and agents. Issues to be considered include what constitutes “property damage” under the policy and the effect of a pollution exclusion, the same issues coming up in lawsuits in the United States.

The outcome will be binding in the UK, but why should United States insurance professionals care?

Of course, the law applicable in the case jurisdiction controls, but this is a public, complex, deliberately considered judicial process interpreting policy language. Therefore, parties can expect other judicial bodies to take notice of it and find the outcome persuasive. To the extent that an insurer’s policy language is substantially similar across various countries, policyholders would reasonably expect their carrier to treat them equally, regardless of geographic location, assuming such an outcome is consistent with local law.
You can follow the proceedings at the test case official website and subscribe to updates.  Trial started on July 20 and at this writing is ongoing.

Quarantine Settlements

You have an opportunity. Right now. While you are working from home. While you are most likely to be able to reach people by telephone and actually engage in a discussion about pending claims.
 

Look over your file inventory. Which are the claims with high monthly expenses?  What about the old dog claims that have been around forever? Would you like to close that in pro per claim?

Reach out to parties about settling pending claims. Offer to participate in a remote mediation. Video mediation lets parties negotiate jointly and also in separate caucus rooms without physically leaving their homes.

In mediation, people need not retreat from their stated negotiation positions, yet confidentially discuss a route to resolution with the mediator.

Claims are down, right? High unemployment means there are fewer people working and fewer people getting hurt. There are fewer cars on the road. Essential workers must still commute, but the rest of the population is mostly sheltering in place. But then there are those COVID-19 claims. Sickened workers are entitled to coverage. Small businesses are making claims on their business interruption policies. Open roads have encouraged reckless driving, which worsens the outcomes of the inevitable collisions.

Eventually, there is going to be an uptick in claims. The time to reduce the pending claims inventory is now.