Teddy Snyder

Month: March 2018

  • Turn Workers Comp Straw Into Gold

    Remember the story of Rumpelstiltskin, a little man who could turn straw into gold? The mediation process does the same thing. When provided with the basic ingredients, the mediator can create gold: a win-win settlement.

    But the parties have to provide the “straw”:
     
    An Open Mind
    One reason a case stays open may be that parties are not paying attention to what the other side views as important. Try to discard pre-conceived notions of what the other side needs and come to mediation willing to listen.

    Preparation
    What does your side really need to settle this case? Is it purely a dollar figure—or are there non-monetary concerns?  Which issues must parties resolve for settlement to happen? Communicating those issues to the mediator in advance makes for an efficient mediation.

    A Willingness to Settle
    The right people need to be at the mediation with adequate authority. Parties need to spend time calculating a reasonable settlement range in light of all factors before negotiation can bear fruit—or gold. The decision-maker must be at the mediation as well as any necessary support people. That might include family members, clergy, or other advisors to the injured worker, a nurse case manager or structured settlement broker for the employer. If the decision-maker can’t/won’t close the deal without the support person’s input, that person needs to be there or at least available by phone. Coming to mediation with the right people and proper authority shows respect for others at the table and enhances the opportunity for a good result.

    When everyone brings the right straw to the bargaining table, they are likely to walk away with a golden settlement. Rumpelstiltskin is the bad guy of his story, but your mediator can be the hero of yours.

  • 3 Reasons Why Mediation Is Better Than An Informal

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    There are a lot of reasons why negotiating a settlement at a mediation is better than at the Board, such as control over scheduling and lack of time constraints. But how does that compare to an informal? The presence of the mediator makes all the difference. Here are three examples:
    Stop the Posturing
    When opposing counsel sit together they keep their cards close to the vest. They magnify the strengths of their own case while denigrating the opposing viewpoint. Once I separate the parties into separate rooms (caucuses,) the motivation to aggrandize diminishes. Attorneys and their clients can reasonably discuss the good and bad sides of the issues with the mediator without giving up their negotiation position. Then it’s my job to convey that position so that another reasoned discussion happens in the other room.
    The Neutral Sounding Board
    As a professional neutral, I do not have a stake in the outcome. I want to help the parties reach a settlement which is the optimal result for all. I can provide untainted feedback and sometimes point out overlooked data. Some clients refuse to listen to their lawyer’s case assessment, and some lawyers have learned that their continued employment mitigates against contradicting their client’s overconfidence. As mediator, I can deliver an unwelcome message about the prospect of success, opening the door to a more frank discussion between attorney and client.
    Stakeholders have Active Roles 
    Unlike at the WCAB or an informal, the stakeholders are encouraged to take an active part in mediation. In caucus, clients and their attorneys can have frank discussions with the mediator—and each other. When claims adjusters and risk managers attend mediation, they maximize their understanding of the dynamics of the negotiation. Injured workers can receive settlement offers in real-time.Some applicant attorneys keep their clients away from the negotiation in an informal meeting. The injured worker may be hidden in a back office or on telephone stand-by. There may be important reasons to prevent interaction between the defense attorney and the injured worker, but this approach prevents the injured worker from buying in to the negotiation. Sometimes, the result can be disastrous when the injured worker later repudiates that carefully crafted Compromise & Release.

    In contrast, once the parties are separated into their caucus rooms, the stakeholders, their attorney and the mediator can have a confidential, free-flowing discussion without the presence of opposing counsel. It may be the only time the injured worker gets to tell the story to a neutral.

    The neutral intermediary is missing in an informal. My job is to steer the proceedings, frame communications to facilitate the negotiation, and help parties decide their course.

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