Teddy Snyder

Category: Mediation

  • 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.

  • The Importance of Facts

    A big part of a mediator’s job is to elicit and isolate relevant facts. Then we can determine points of agreement and disagreement.

    Mediations come in two basic types:
    – Parties agree on the facts but disagree on how to interpret them
    – Parties disagree on the facts

    Facts

    Model 1: We Agree on the Facts, But. . .
    In this common situation, parties may disagree on issues such as:
    – the degree of disability the facts describe
    – the effect of facts pointing to a possible non-industrial cause of disability (apportionment)
    – whether the injured worker could have returned to work under these facts
    For example, in a recent mediation, the injured worker’s attorney obtained a last-minute vocational report to show the injured worker was 100% disabled. But that wasn’t the issue. The employer agreed the injured worker was completely disabled, but contended that the disability was largely caused by non-industrial factors. Mediation was the place to correctly define the issue.

    After isolating the pivotal issues, we can define the maximum and minimum values for each side’s interpretation. Compromise mostly then comes down to narrowing the gap between the dollar demand and offer.

    Model 2: Those Aren’t My Facts!
    When parties are operating on different sets of facts, it’s almost impossible to settle. This situation can arise when parties are not communicating, often due to animosity built up over years. Examples include:
    – Injured Worker has been treating the claimed injury with treaters unknown to the adjuster
    – Injured Worker has treated for conditions which may or may not be related to the claimed injury
    – Injured Worker has made another claim, consideration of which is relevant to resolution of this claim, such as a third-party liability claim for this injury or body part.

    Facts exist, no matter how unfair it may seem to have to learn about them at a late date. In fact, for example, some treater recommended and provided treatment. In fact, a bill remains unpaid for such treatment. The employer can claim that the treatment was not reasonable and necessary or was not for the industrial injury, but the fact is still stubbornly out there.

    Sometimes, revelation of these facts prompts adjournment of the mediation to allow time for collection and sharing of relevant documents. The mediation resumes at a later date. Once mediation participants recognize that a fact exists, they can readjust their viewpoint to see the case as Model 1.

  • Is Mediation Effective in Workers’ Comp?

    Babe Ruth’s lifetime batting average was .342. Studies in states with a history of workers’ compensation mediation suggest your success rate with it is likely to be a whole lot better.

    In Florida, parties must mediate workers’ compensation claims within 130 days of the filing of a petition for benefits. Results for the fiscal year ended June 30, 2013, showed a 74% success rate, defined as partial or complete resolution of the issues.

    The Minnesota Department of Labor and Industry reported that the state’s mediation resolution success rate between June 2007 and September 2008 was never less than 60%. The success rate was 100% in four of those months.

    The Maryland Judiciary’s Mediation and Conflict Resolution Office conducted a study where half of Baltimore’s workers’ compensation filings were referred to mediation. The 2002 report details the results. Measured at various points in the litigation process, the mediated cases were consistently found to conclude more quickly and with less discovery than the control group. For example, 83% of cases in the workers’ compensation mediation group were disposed of before their scheduled trial date, compared with 70% in the control group.

    In 1992, the Dallas Mediation Project reviewed 981 mediated cases. Workers’ compensation, contract disputes and collection cases showed the highest level of resolution—87% of these workers’ compensation cases settled through mediation. Motor vehicle claims settled 85% of the time, and other personal injury claims settled 77% of the time.

    Don’t be afraid to step up to the mediation plate. You might hit a home run.

  • 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.

  • Flavors of Workplace Injuries

    Workplace injury benefits come in many “flavors.” Most California workers are covered by workers compensation, administered by the state. However, federal law provides workplace injury benefits to others.

    A narrow definition, subject to many refinements, of these groups includes:

    • Jones Act- maritime workers
    • Longshore Act- dockworkers
    • Defense Base Act – civilian employees working abroad on a U.S. military base or under contract with the U.S. government for public works or national defense
    • Federal Employers Liability Act- railroad workers

    There are important differences among these laws, including what triggers compensation and available benefits. All workplace injury claims, however, can be resolved through mediation.

  • Winning the Zero Sum Game

    Value-Added Negotiating

    Many negotiators approach resolution as a zero sum game. Each side’s gain or loss is exactly equal to the other party’s gain or loss. Viewing the resources available as limited can obstruct getting to settlement.
     
    Particularly when one or more parties have hit their dollar authority limit, adding non-monetary benefits to the discussion creates a larger number of benefits to divide. Some people call this “enlarging the pie.”

    When there are more issues to discuss, parties can “log roll,” i.e., swap benefits across a number of issues, not just fixate on more or fewer dollars.

    Different kinds of cases call for different solutions. Unique facts can inspire creativity. Here are some tried-and-true ways to add value.

    Resignation
    In workers compensation and wrongful termination cases, a resignation can add value. It clarifies the parties’ status and provides finality. Double-check to make sure you do not run afoul of statutory restrictions before raising this issue.

    Respect 
    In the right case, an apology can move negotiation forward.

    Some claimants feel no one is listening. Perceived disrespect leads to resentment which prevents reasonable negotiation. All participants should make sure to show respect for the opponent’s position. One way to do this is by scheduling a mediation where everyone gets a chance to have their say.

    Payments
    In appropriate cases, you may be able to negotiate to characterize money as non-taxable. If some or all of the settlement can be considered payment for a physical injury or restitution for a loss such as property damage, the net benefit to the payee is greater.

    Settlements usually call for a single lump-sum payment. But a different arrangement may be better for all parties. A classic way to do this is through a structured settlement. A structured settlement can provide more money for a claimant without increasing the cost to the payor. Other benefits might include Medicare Set-Aside compliance and professional investment management.

    Sometimes, a defendant requests a payment plan. Even the largest defendant may need to spread a settlement over two budget years. When parties agree to a payment plan, a properly worded settlement agreement must spell out each party’s rights, obligations, and remedies.

    Confidentiality 
    Protection against damage to reputation can be a valuable bargaining chip whether the party is an individual, a corporation, or a government entity. Confidentiality clauses have appeared routinely in personal injury settlement agreements for decades. Defendants and their insurers don’t want to set a benchmark for future plaintiffs. Note: some jurisdictions have prohibited non-disclosure clauses in sexual harassment settlements.

    Victory!
    Victorious negotiators are those who walk away with a settlement. To get there, discard the zero sum approach. Find ways to add value instead

  • FOBO Paralysis

    Most of us have seen, and maybe used, the acronym FOMO. It means Fear of Missing Out. FOMO is the fear of making the wrong decision about how to spend your time, particularly after you’ve seen internet stories about others doing better. 

    Negotiation FOBO
    The related condition in negotiation is FOBO, Fear Of Better Options. Fear that there may be a better option prevents negotiators from choosing any option. Seeing reports of great results in other cases, unlikely to be identical, contributes to the situation.

    Some people are “maximizers”; they think they must have the perfect resolution. So they need to consider every single option. The trouble is, too many options leads to indecision. Maximizers include the attorneys who want to pursue every avenue of inquiry regardless of the expense in relation to the likely effect on evaluation of the claim.

    Happier, more successful people are “satisficers”; they know how to recognize an acceptable deal and move on. Satificers aren’t pushovers. They do their homework.  In mediation, they’re the people who have evaluated the claim based on historic data, expert reports, and their own experience. They present cogent, coherent arguments in their mediation brief. They have considered the downside of walking away from a deal though they might consider it barely acceptable.

    To avoid FOBO, negotiators need to prioritize their needs and wants. For most mediation participants, the highest priority is closing the claim with an acceptable outcome. Continuing to litigate means months or years of additional expense and stress. Well-prepared negotiators know the status of the case today and realize that things could get worse in the future.

  • A Mediation Story

    The claim was decades old; indemnity was supposedly fully paid. The carrier hadn’t paid a medical bill in years. The applicant had dismissed her attorney, but continued to pursue the claim.

    The carrier wanted the claim off the books, so they called me. Without prompting, the adjuster disclosed his authority limit to me in an email.

    The applicant, the carrier’s hearing rep, and I met for mediation.

    While there was no question the applicant was disabled, the dispute was whether the disability was industrial. Thankfully, the applicant had a very good alternate form of medical insurance which had been providing and continued to provide full coverage.

    I spent time with the parties separately, allowing each of them to vent about how they had been taken advantage of by the other. Issues were raised, demands and offers exchanged. While remaining neutral, I empathized with both parties, discussing pros and cons. Finally, the hearing rep made what he said was an offer of his full authority.  I showed him my print-out of the email which showed authority for an additional $15,000. 

    He stared at me.  “I have to make a call.” 

    “Let’s make it together,” I said.

    We got on the phone to the adjuster who said the hearing rep was correct. “Mike” (not the real name), I said, “Are you able to take a look at your email to me of [the email date]?”

    “Yes, I see it.”

    “That says your authority is $15,000 more.”

    “Oh, I didn’t have that authority. I never had that authority.” 

    I did NOT say, “Then why did you tell me that’s what you had?”

    Instead, I went to the room where the applicant was waiting and put the hearing rep’s offer on the table.

    “I have to call my spouse.” I left the room to give her some privacy.

    After a little while, the applicant told me her spouse said the offer was an absolute non-starter.

    The hearing rep stated he had to leave for another commitment, and the mediation adjourned without resolution.

    A few days later, the applicant called me to ask if the offer was still open.  I said I would check.

    The case settled by Compromise & Release for the amount of the hearing rep’s offer.

    The Lesson

    Parties sometimes need time to process everything that happened at mediation. They may have learned about new issues or gained new insights about the basis for the opponent’s position. People often have a negative kneejerk reaction to a demand or offer. After some time to cool down, they may be able to understand a different point of view, even if they don’t agree with it.

    Think about why this case settled. What did the applicant gain by being able to talk about the claim with the mediator? What do you think happened between her and her spouse once she got home? What can you conclude about pre-mediation communication between the adjuster and the hearing rep, between the adjuster and the applicant?

    How important is it to have everyone who will participate in making the settlement decision attend the mediation?

  • New Mediation Disclosure Law

    Effective January 1, 2019, California attorneys must provide a written mediation disclosure statement to clients or face potential disciplinary consequences.

    What Does the New Law Do?
    The disclosure does not protect clients so much as inform them about mediation confidentiality. Under changes to the Evidence Code, attorneys must have clients sign off on a mediation disclosure form as soon as reasonably possible before the client agrees to participate in mediation. If the attorney is hired after the client has agreed to mediate, the attorney must get the client’s sign-off as soon as reasonably possible after being retained. If the client signed off on a disclosure with prior counsel, new counsel should get another acknowledgement naming the current attorney. All clients should sign it.

    The disclosure must be on a single page not attached to any other document and must be printed in the preferred language of the client in at least 12-point font. It must include the names of the attorney and the client and be signed and dated by the attorney and the client.

    The law specifically contemplates an “attorney disciplinary proceeding to determine whether the attorney has complied with Section 1129.”

    Unh-Unh, Not Me
    What if the Evidence Code doesn’t apply to your practice area? You work in administrative law, such as Workers Compensation, or limit your practice to federal court.

    Even if you never handle a case with a state civil court aspect nor a federal case with diversity jurisdiction, observing the new rule is the safe choice.That this amendment passed at all started with concerns about legal malpractice suits founded on communications within the mediation process. Legal malpractice suits are filed in state court or rely on diversity jurisdiction using state rules. Mediation confidentiality rules apply to all types of practice.

    What Does the Disclosure Do—And Not Do?
    The disclosure lays out the basics of the mediation disclosure rules, i.e., an almost total evidentiary exclusion of communications. This includes legal advice provided to a client during the mediation. Absence of the client’s signature or that the client did not receive the form is not a ground for invalidating a settlement agreement.

    The “safe harbor” disclosure form in Evidence Code 1129 assures clients they can still sue for malpractice or report misconduct to the State Bar, just not using any evidence relating to a mediation.

    How To Comply
    Attorneys who regularly mediate should consider obtaining the disclosure at the beginning of the representation. The safe harbor form doesn’t limit the disclosure to a single case. Nonetheless, attorneys working on multiple cases under an ongoing or tripartite relationship may wish to add language to make it clear that the client is executing a blanket sign-off.