Teddy Snyder

Author: Teddy Snyder

  • Why Video Mediations Are Like Early Personal Computers

    You may have heard the abbreviation RTFM. As soon as everyday consumers started using computers, telephone customer support staff had to field daily questions about the most basic functions. Perhaps the most infamous is about the user who insisted that a floppy disk drive (remember those?) was a cup-holder. What the tech people wanted to yell was, “READ THE F-ING MANUAL!” 

    Read the Mediation Instructions
    I send instructions to participants in every one of my mediations. Over time, these instructions have gotten so specific that they even include directions on what topics to include in the mediation brief.

    For better or worse, I am no longer disheartened when it is painfully obvious parties have paid no attention to the instructions. We simply carry on.

    Instructions for Video Mediations
    Shelter-in-Place orders have drastically increased the use of video platforms for remote mediation. It’s really important to prepare for video mediation by READING THE INSTRUCTIONS. These include information about:

    • How to sign in
    • Acceptable remote locations
    • WiFi requirements
    • Device requirements
    • What happens if a computer goes down

    Unlike with in-person mediations, failure to read video mediation instructions can prevent the mediation from going forward.

    Courts may be closed, but the disputes go on. You can get those disputes resolved during a shutdown with video mediation.

  • Resolving COVID-19 Coverage Questions

    Unquestionably, the COVID-19 pandemic is hurting a variety of businesses. As soon as the extent of financial loss started to become obvious, insurers started seeing lawsuits.

    Does the lockdown trigger business interruption insurance? What about pollution coverage? Special event coverage? Does actual notice of circumstance bring later claims within a claims-made policy period? Have workers sickened by the virus sustained an industrial injury? Can you collect on your completion bond? It could take years for the law to become close to settled on questions like these. Unfortunately, many companies will not be able to survive the litigation process.Mediation can provide a quick resolution. Mediation is an appropriate choice when:

    • There is a close question

    • Parties wish to avoid the risk of creating a legal precedent

    •The economics favor resolution for a reasonable amount now as opposed to an extreme result later

    Let’s talk now about the best way for you to bypass the litigation process.

  • 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.

  • Quid Pro Quo in Negotiation

    We’ve heard a lot about quid pro quo lately. But it’s not necessarily a bad thing.

    Quid pro quo is Latin for “this for that.” This is what negotiation is all about. In fact, the exchange of something of value, legally termed “consideration”, is a requirement for a contract to be valid. Settlement agreements are contracts.

    A good negotiator always seeks quid pro quo. Don’t give away something unless you get something in return. In mediation, parties take turns lowering demands and increasing offers until we reach settlement.

    The exception to this rule is if you were legally obligated to do something. Then it is improper to seek compensation for it. For example, an employer is legally required to pay the ordinary and customary medical expenses of an employee who suffers a work-related injury. In an ongoing case, it would be an improper quid pro quo to ask the injured worker for anything of value in return. The thing of value might be money or an agreement to do something in an unrelated context the worker would not otherwise do. That could include sexual favors.

    Parties can enter into any contract which is not illegal. Hiring a hit man to kill your enemy is not a legal contract, no matter the agreed amount of compensation.

    What About Leverage?
    Leverage is different from quid pro quo. A party has leverage in negotiation when that party has the better alternative to a deal. How badly does the negotiator need the deal? For example, an individual who needs money for basic living expenses is likely to accept a settlement of less than full value in order to expedite closure.

    In litigation, each party is negotiating to obtain a quid pro quo, a certain amount of money now in exchange for a release of the claim. When one party is in the better position to wait out the full life of the claim, that party has leverage. Frequently that is the insurance company/defendant. However, many insurers are anxious to close “old dog” claims. In that situation, the claimant has leverage and can demand more to settle. Uncertainty about how future events, such as medical treatment, can affect the value of the claim, giving one party more leverage than the other.

    Quid pro quo is the very basis of settlement—so long as each side is getting value beyond what the other party was already obligated to do.

  • Hello 2020

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    This will be a big year.

    Don’t forget it’s Leap Year; there’s an extra day in February. The summer Olympics in Tokyo start July 24 and continue through August 9. The presidential election is on November 3.

    Maybe you started the year by binging on football bowl games. Now that you’re back to work, think about how 2020 will be your big year of settlement. Prepare by identifying the ugliest claims in your inventory. Then contact SnyderMediations. I can help you identify good settlement candidates and schedule mediations. It’s the best way to move those files to closure.

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  • 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.

  • JOY TO THE WORLD – LAW PARTNERS’ YEAR-END MEETING

    Joy to The world! Year-end has come,
    Accounting has totaled the fees.
    Let ev’ry heart
    prepare him room
    And all of the partners sing
    And all of the partners sing
    And all, all of the partners sing

    Joy to the world! The year was good,
    And now divide the spoils.
    Misters Fields and Floods have a fight.
    Misses Rock and Hill watch in fright,
    Repeating the annual scene
    Repeating the annual scene
    Repeating, repeating the annual scene

    At last there’s an end, some truth, no grace
    Each one their worth to prove
    The glories of righteous hours
    The rain made with superpowers
    And all go home with a check
    And all go home with a check
    And all, all go home with a check

    Happy Holidays!

  • Knowledge Management

    KNOWLEDGE MANAGEMENT – CREATING A MEDIATORS LIST

    Every organization should have a process for creating a collective memory. It’s called knowledge management.

    Knowledge management preserves team members’ experiences so everyone on that team can access them. This efficiency avoids mistakes and duplication of effort.

    Still, it is not uncommon for people considering mediation to send an all-hands email asking, “Do you know a good mediator?” or “Who mediates these kinds of cases?”

    Does your organization maintain a list of mediators? If not, start today. Ask team members to provide names of mediators and include comments, good and bad. It can be as simple as a shared Excel document. Column headers might be: Mediator, Contact Info, Cost, Outcome, Comment.

    To keep information current, whenever someone mediates, that person should report their experience.

    Whether you already have a mediators list or need to create one, make sure Teddy Snyder, SnyderMediations.com,  is on it.