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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.

Align Thoughts, Words & Deeds to Get Results

Having trouble concentrating? Affected by shelter-in-place orders to contain the COVID-19, overlaid with curfews activated by civil unrest following the death of George Floyd? Join the club.

For some cases, nothing is urgent right now. It’s easy to leave those cases on autopilot.

What you focus on is what you get. If what you really want is to avoid the expense and stress that go with delaying case resolution, you need to align these:

Thoughts: Concentrate on one, just one, file and put together an action plan in your mind specifically what you can do right now to bring it to resolution. That may well be mediation. Do you really need that pending deposition when everyone knows pretty much what that witness will say? How about trying to resolve the case now without it?

Words: Document the plan, and communicate it to everyone needed to effect it. Tell your lawyer what you want to happen next. Contact opposing counsel to explain your plan. Set deadlines.

Deeds: Don’t slip back to inaction. Too many so-called action plans are never implemented. Calendar a follow-up date to make sure your plan is moving forward.

People prone to procrastination find that forcing themselves to action on one matter prompts them to tackle another and another. Taking ownership of a situation is challenging. It takes courage. It’s the way to get the result you want.

The Role of Empathy in Settlement

Empathy, the ability to see a situation from a different point of view, is an important negotiation and advocacy skill. You must be able to anticipate and understand your opponent’s position to effectively counter it. Debate trainers assign students to argue the position opposite their personal beliefs to foster this skill.
I’m Fine. To Hell With You
Lately we have seen a stunning lack of empathy in our country. On the same day as a county announced that COVID-19 had become the county’s leading cause of death, one resident yelled, “It’s my body and I want to go to work.” Another defiantly asked, “Why shouldn’t I be able to sit in a restaurant and eat?”

The answer is that many people, perhaps the majority, who are infected with the virus are asymptomatic. COVID-19, unlike collisions, drownings, obesity, heart disease, and cancer, is wildly contagious. There is currently no vaccine and no cure. More than 81,000 Americans have died. Around the world, people are not allowed to work in close quarters or sit in a restaurant because that potentially exposes coworkers, servers and other customers to the contagion. Not everyone reacts to the virus the same way.

Similarly, the television journalist who tweeted that anyone who wants to continue to shelter in place should just stay home lacks any awareness of how most people live. If the boss requires workers to show up or lose their jobs, those workers don’t have the luxury of working from home. There are more people living paycheck-to-paycheck to pay the rent and buy groceries than people pulling in big bucks.

And then there’s the 79-year-old Wisconsin Supreme Court Chief Justice who said “regular folks” were not getting COVID-19. Got that, anyone with a family member in a nursing home?

Negotiators need not have suffered a serious injury or business reversal themselves to empathize with someone who has. Perhaps you have had a personal experience which makes you wonder why your negotiating opponent is apparently so much less resilient that you. Again, not everyone reacts to an event the same way. An inability to concede that these are that person’s feelings, even if you think they are baseless, impedes meaningful settlement discussions.

Mediator As Filter

There’s a lot of interest lately in filtering out bad stuff. Of course, we use filters all the time: air filters in the ceilings in our houses, filters to keep the coffee grounds out of our drinks, water filters to improve the stuff that comes from our faucets, filtered cigarettes— well, you get the idea.

Think about this. Your negotiations aren’t leading to resolution because of the absence of a filter. A big part of what a mediator does is filter messages between disputing parties.

Self-Filters Don’t Lead to Resolution
Negotiators shape their message to achieve their goal. They might threaten. They might withhold critical information. Negotiators seldom admit the flaws in their position; they’ve filtered those out to make their case look as strong as possible.

In mediation, parties have the opportunity to let their guard down. One of the most powerful features of mediation is caucusing. In caucus, only one side meets with the mediator. By statute, everything that is said is confidential. The mediator cannot disclose anything unless you authorize that disclosure. She cannot be subpoenaed.

Confidentiality promotes candor. Parties can stop filtering their message and discuss the good and bad points of the case with the mediator. Here’s your chance to discuss the case with a professional neutral who can help parties identify the issues and resolve them.

Reframing
Mediating parties make demands and offers, and the mediator conveys them to the opponent. Part of this process often includes the mediator reframing the message to filter out animosity or extraneous issues. The mediator is using her own filters to enhance the likelihood of settlement. This focuses the parties’ attention on what is important for settling the case.

Posturing
Even in caucus, some attorneys will grandstand in an attempt to assure the client of their support, no matter how unreasonable the client’s position.  An experienced mediator understands the dynamic and how to use it to resolve the case.

Maybe you think your opponent is the biggest jerk in the world. In mediation, the mediator can filter out that attitude to get your case settled.

Mediation During the COVID-19 Shutdown

Mediation Is Critical Right Now
Courts are closed. Attorneys and claims professionals are working from home as best they can. But disputes continue. If an employer is responsible for a claimant’s medical care, delivering that care during a “Shelter in Place” order is a challenge. How a dispute is handled now can determine how the case will proceed in the long term.

Because courts are closed, litigating parties should make an extra effort to resolve disputes through negotiation. However, when they are unable to do so, agreeing to mediate is the best alternative. Issues subject to mediation can include conflicts usually resolved by motion, discovery disputes or entire cases. You can contact your mediator of choice by phone or text at 310/889-8165 or by email. She will take it from there.

Two mediation options are available during the shutdown.

Mediation by Video
Your mediator can conduct a mediation while everyone remains at home through several applications, including Free Conference Call, Zoom, or Legaler. This can happen quickly– as soon as parties agree on a time and electronically send the mediator their mediation statements so she knows the basic outlines of the dispute.

Scheduling an In-Person Mediation
If parties insist on an in-person mediation, the time to schedule that is now.

Once courts and mediation venues re-open, scheduling will be a mad dash to secure an available time. Cases already on the court’s calendar for a future date have first priority, pushing litigants with disputes cresting now further back.

In contrast, cases with a date already on the mediator’s  calendar will get first chance for any other date if circumstances allow an earlier date or must be further delayed.

You may be feeling frustrated as you see the conflicts mounting in your email inbox. There is a solution available right now: mediation.

New Law on Settlement Agreements

A new California law effective January 1, 2020 governs settlement agreement language regarding employment dismissals and rehires. An employer and employee can still agree that a settlement includes termination of employment, but the agreement cannot include language that the person is barred from re-employment.

The legislative history of AB749 shows that the motive behind the law was to prevent situations where a sexual harasser remains employed by a company, but the victim can’t get back or hang on to a job. Here’s the language:

“An agreement to settle an employment dispute shall not contain a provision prohibiting, preventing, or otherwise restricting a settling party that is an aggrieved person from obtaining future employment with the employer against which the aggrieved person has filed a claim. . .”

The law specifically allows termination of a current relationship. Also, the law explicitly states that an employer need not re-hire someone when “the employer has made a good faith determination that the person engaged in sexual harassment or sexual assault” or ”there is a legitimate non-discriminatory or non-retaliatory reason for terminating the employment relationship.”

If It’s Not a Sexual Harassment Case?
This law applies to all claims brought by an employee against an employer in any forum, including mediation, arbitration or other internal process. When an injured worker has not returned to work for years, their employment status in certain situations could still be technically “employed.” To clarify that the injured employee cannot access employee benefits, a settlement agreement may include language defining the date of termination of employment or might specify that the employee is resigning.

I have helped create a settlement where status as an employee was reinstated for a minimal amount of time with the proviso that the employee was resigning on a specific date. I have also helped create settlement agreements where the employee was paid as an independent contractor for a limited period.  This will be more difficult now after passage of AB5, also going into effect on January 1, 2020, which tightens the definition of who is an independent contractor.

Settle, Settle, Settle

It’s almost always better to settle than to keep pouring money into litigation. A trained settlement professional can help you negotiate the best result.

Peace on Earth, Good Will to Men

You’re sure to hear this phrase repeatedly in December. What are you doing to make it happen?

Most readers of this message are professionals charged with managing disputes. You may spend a considerable amount of time strategizing how to annul the opposing party’s claims. That’s appropriate. It’s your job. But what practically every party involved in a conflict really wants is peace. Settling parties often say they are compromising in order to get peace.

It’s also your job to achieve the optimal result in a cost-efficient manner. Mediation is a way to achieve that outcome. A trained professional neutral will work with all parties to achieve their own bit of peace– not just at holiday season, but all year round.

HAPPY HOLIDAYS

Evaluating the Denied Workers Comp Claim

I recently mediated a partially denied claim where the attorney for the injured worker had no idea what the value of the future medical costs might be. It was an old dog claim, and treaters had been deposed multiple times.

When a printout provides historic data, it’s pretty easy to project future expenses. Sure, parties might disagree about the credibility of treaters’ recommendations or the likely cost of future expenses. They might debate the effect of inflation vs. drugs going generic. But parties can compromise on those things. There are ways to prepare for contingencies in a Compromise & Release. An experienced mediator can help you.

Perhaps this issue is in the NSS category. On the other hand, I see so many parties come to mediation unprepared, I’m taking the time to spell it out.

Discovery Is How You Find Out Things
The Principal Treating Physician (PTP) submitted a report recommending expensive future surgeries and treatment. The PTP was deposed—multiple times. Experts for the employer were deposed and of course said that the need for those procedures was non-industrial. Did anyone ask those experts what such a surgery or treatment might cost?

There’s This Thing Called the Internet
As an experiment, I Googled “cost of fusion surgery los angeles”.  I also Googled “how much does Medicare pay for fusion surgery los angeles.”

I didn’t spend a lot of time on this, but I did browse:
https://www.healthcarebluebook.com/page_ProcedureDetails.aspx?cftId=22&g=SpinalFusion+(lumbar)
https://www.beckersspine.com/spine/item/35786-spinal-fusion-price-in-30-largest-us-cities.html
https://health.costhelper.com/back-surgery.html

Mediation participants often bring in printouts from various websites showing medication costs.

A person might want to argue about the numbers shown on these pages. For one, it isn’t clear that Worker’s Comp wouldn’t get it cheaper. In other words, the value to the employer is different than the value to the injured worker.

Also, many injured workers have Medicare or Medi-Cal (Medicaid) coverage. This means they have lots of room to negotiate.

Informed negotiators negotiate. Uninformed ones throw out numbers without support. You could be using a number that’s too high or too low. When your position lacks credibility, the case is unlikely to settle.

Claims Organizations Have Data
Claims organizations are in the business of paying for medical treatment. Claims professionals see bills for the same procedures again and again. They set reserves based on data. Ask for that data from your client or your opponent. If you are the Applicant’s Attorney, the worst that can happen is that they refuse. That says a lot, too.

No Excuses
There’s no excuse for coming to mediation while clueless about the value of the case. You should repeatedly re-evaluate throughout the case’s pendency. Preparation and good faith negotiation can end cases earlier, saving everyone time, money and stress.

How to Write a Workers Compensation Mediation Brief

Why do so many advocates stumble when it comes to preparing for mediation? Perhaps the most important thing a lawyer can do to prepare for mediation is to write a brief. Done properly, the process forces the writer to focus and get ready to negotiate. But many people do it wrong, mostly by providing irrelevant and obsolete information and not providing the data necessary to evaluate the claim. This problem is so common, I now instruct parties in my confirmation letter what to include.

The brief doesn’t have to be fancy. I don’t care if there’s a caption. An email message is fine. What would be helpful would be sub-headings for the categories shown below.

Transmit the brief at least 7 days in advance of the mediation. This helps everyone prepare, including the mediator. Your brief may prompt a request for a document. Showing up with your brief at mediation wastes participants’ time and money as the mediator reads the brief. Late preparation can raise new questions and sometimes leads to adjournment and a second session to allow time for everyone to get answers.

Claims professionals, you know the mediation is coming up. Ask your lawyer to provide you a copy of the brief at the same time it is sent to the mediator. This assures you and your advocate are on the same page. You can also monitor the timeliness of the preparation.

Facts

The brief should briefly (that’s why it’s called a brief) recite facts such as the dates of injury, affected body parts, and the injured worker’s date of birth.

Indemnity
State specifically if indemnity is open. If it is open, what do you think is the correct percentage and dollar amount? If less than 100%, what are the Permanent Disability Advances to date? At what rate are they being paid? Is there any argument about apportionment, overpayments or retro? Do the parties agree on the DOI? If parties disagree on an issue, spell out your position. What does the other party say?

Medical
Copies of narrative medical reports (AME, QME, PTP) from the last two years will be very helpful as well as a print-out of medical expense payments for that period.

Medicare Status
Is there a current (within the last year) MSA? If so, attach a copy to your brief. If the injured worker is a Medicare enrollee or is at least 62 1/2 years old, get a current MSA report and attach it to your brief. If you are not obtaining an MSA because the injured worker is undocumented or is otherwise ineligible for Medicare, say so in your brief. If you have obtained CMS approval, provide a copy.

Other Issues
Are there any other issues to be resolved? Mediations are most successful when parties are able to prepare for negotiation and do not encounter surprise issues.

Confidentiality
Indicate if the brief is confidential or is being shared with the other party. You may choose to create two briefs, one for exchange and one confidential.

Humility Leads to Mediation Success

Here’s an oxymoron for you: the humble litigator. Like jumbo shrimp and military intelligence, it may seem ridiculous to pair humility with any litigator. But for anyone trying to settle a claim, a little humility can help get you to the finish line.

Most of the time that dispute will eventually settle without court intervention. The parties want to resolve the issue with the smallest expenditure of time and money. Incivility, bias, prejudice and anger are inconsistent with humility and get in the way of settlement.

Acting with humility does not admit fault. The most successful litigators are courteous and respectful.

I’m The One Who’s Right
Of course you are.

Then why is the other side fighting so hard to say the opposite? Of course they’re completely wrong, but maybe, just maybe, you could pretend they have a reasonable point of view. Or—here’s a shocking concept—try to see their point of view.

 

Students learning to debate (or get through law school) may be asked to argue a position with which they disagree. While preparing for mediation, try to outline the other side’s position and think about all the reasons supporting that position. This is an excellent way to marshal your own arguments.  It is also an exercise in empathy.

You Want Me To Do What??
Think about forgiveness. When you feel wronged, your desire for vindication may make negotiation difficult. Forgiveness must be internal and not necessarily verbalized.

Forgiveness is about moving on, doing the best thing for you and those you represent, not for the benefit of the offender. Forgiveness keeps you in control of your emotions rather than surrendering control to the volatility of others. Forgiveness does not validate the other side’s behavior or minimize the damage it has caused. It doesn’t mean you were not wronged or that the parties will have a good future relationship.

Conversely, a well-phrased apology has helped settle many a case. For example, I watched one litigator, without any prompting and without admitting fault, express sorrow that the injured worker had experienced a lengthy delay in getting treatment. That may not be right for your case; for his, it was. Don’t forget that everything said in mediation is confidential and cannot be used for evidence in any forum.

Good People, Strong Emotions

You’re a good person, right? Yet, difficult situations can spark rage and other extreme emotions in the best of people who then behave without humility.

In mediation you can state your position in the strongest terms in a private session with the mediator. The mediator can then skillfully communicate those emotions to move parties to settlement.

A bit of humility can improve your effectiveness in formulating and reacting to those communications.