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Category: _Regular Post
Category to place the post in the last group of the blog page and not in the featured posts sections.
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The Minor Injury Blows Up Again
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Remote Video Mediation – What We’ve Learned Since 2020
In October 2000, I created a presentation for CEB (Continuing Education of the Bar) entitled Quelling Fear of Video Mediation. Since then, mediators and participants have become more comfortable and more adept in using video platforms. And we’ve all learned a lot. But some things haven’t changed. 
No Travel
Perhaps the biggest advantage of video mediation is the elimination of the need to travel. That means not dealing with traffic which would otherwise frazzle some participants before they even get to the mediation.It also means that there is no longer any excuse for out-of-towners not to attend. In the past, notwithstanding instructions from the mediator that all necessary personnel must attend, mediation participants would often hear that the person who actually had settlement authority was thousands of miles away.
Has remote mediation eliminated this problem? Not on your life. We still hear it. In fact, books about negotiation counsel that “I can’t agree because I have to check with someone who is not available now” is a good technique. I get that it works when you are at the car dealership without your spouse, but it frustrates the serious intent of participants at a (possibly court-ordered) mediation. It’s also pretty disrespectful of the mediator who spent time preparing, often without compensation for that preparation.
Remote mediation eliminates the potentially considerable travel expense for those who must fly and stay in a hotel to attend the mediation.
You’re in Your Own Space
Some participants can feel intimidated in a law office or mediation facility conference room. Some of that anxiety decreases when they are logging in from their own couch or desk.People are just more comfortable. They can also take breaks to get the food or drink they want without a lot of expense. True story: I once conducted an in-person mediation where a participant did not eat anything that was provided nor that was available at a nearby snack bar, because the food was not Halal. As a result, as the day wore on, the participant became cranky and the mediation adjourned without resolution. Food would not have been an issue if the participant had access to their own provisions. [Yeah, I know, the attorney should have foreseen this issue and counseled the person to bring their own food, but that’s not the way it happened.]
Even in remote mediations, participants should dress appropriately. Judges have complained that lawyers sometimes dress inappropriately. Appropriate clothing includes covering up from the waist down. You might have to stand for some reason or otherwise change your camera’s direction. It’s not that big a deal to put on a pair of trousers. Show respect for the mediation process, including the mediator and other participants.
Zooming in from your own work space also eliminates the “Oops, I didn’t bring that” issue. While participants can often access left-behind documents stored in the cloud, occasions still arise where something relevant is miles away and not available electronically. Working from your usual chair lets you grab that item.
A huge advantage is that remote participants can profitably use the down time that inevitably occurs when the mediator is caucusing with other groups.
Scheduling
Even when mediations were conducted in person, it was always more convenient to mediate than to wait for a court hearing. Mediations can happen as soon as all parties are available and don’t have to happen within court hours. Mediations can last as long as needed. Now that there is no need to book a facility, mediations can happen even faster.Some Things Stay the Same
Mediation was always a way to save time and money. Mediation is confidential and private. Communications made within the mediation, including in anticipation and for follow-up, are not admissible in civil proceedings. Unlike open court, there is no record, so no precedent is created.The dynamics of mediation allow attorneys to provide insight to the mediator which they could not otherwise convey. Instead of a hallway, now this happens in electronic breakout rooms.
Caucusing facilitates communication among hostile parties. Again, electronic breakout rooms have taken over for physical shuttle diplomacy. Now, the mediator electronically moves between rooms. She can convey information in a way to facilitate settlement rather than inflame passions.
Because nothing binding can happen without the parties’ agreement, mediation promotes a high degree of satisfaction, whether in-person or by video.
Technology Concerns Remain
Don’t be overconfident. Make sure you are skilled in the technology, especially if you haven’t used it in a while. Just because you thoroughly know one platform doesn’t mean you are proficient in every platform. Zoom is not Teams is not RemoteMeeting.Those of us participating in remote proceedings might be more comfortable now, but what about the clients? Professionals should still spend time educating clients/insureds about what to expect and how to prepare. A practice session is still a good idea for new users.
If the client can’t manage or is intimidated by the technology, consider bringing that person into your office even though everyone else is remote. Anyone helping someone use remote mediation technology during mediation, whether in your office or in their home, must identify themselves and sign off on the confidentiality agreement.
Technology glitches can still happen. Be prepared for internet or app freezes. Stay calm. Exit and sign back in. Try a different device. Your mediator should be available by phone to help participants use alternate media.
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How To Balance the Scales of Justice
We’re all familiar with the symbol: Lady Justice carrying the balance scales. She holds a sword and sometimes is blindfolded to show a lack of prejudice. In most depictions the scales are balanced. She has righted the scale to dispense justice. But sometimes the scales are uneven. 
What Is Being Weighed?
Perhaps the most common interpretation of the symbol is that evidence on both sides of an issue is being compared. Which side has the heaviest evidence? Does that mean there are more witnesses, more exhibits? What weight does the credibility of the claims bear?But consider whether the scales might represent something else. There is an imbalance between the parties. Now our justice system is trying to return them to equilibrium.
Rebuilding Balance
As a civilized society, we have granted the government monopoly control over this process. We do not condone vigilante justice. The result is the complex legal system we have today which might leave the parties still feeling unbalanced.One way our system restores equity between the parties is to impose legal sanctions against wrong-doers. In civil cases this is a money judgment, some of which might be as punitive damages. When a case has gone this far, the parties have surrendered control of the process to the system.
The alternative, which is how approximately 96% of all cases conclude, is settlement. A settlement usually provides financial compensation to the claimant and halts all parties’ expense and stress. Civil settlements avoid a judgment of record. A confidentiality provision can protect all parties’ reputations.
A professional mediator can help parties feel they have achieved better balance by exploring other options, too, such as an apology or agreement to change procedures. Unlike with a money judgment, settlement offers opportunities for creative financial arrangements to better meet the claimant’s needs with the available funds. This might be a structured settlement or a special needs or reversionary trust. Use a mediator who understands these options.
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How to Make the Perfect Offer
You know the case should settle. Why won’t the other side agree to your offer? Here are some tips for creating the perfect offer. I’m going to refer to both offers and demands as offers to settle in this article.
WHEN
As long as you’ve done your homework, there’s no bad time to make an offer. Professionals on both sides of the table have been evaluating the case since it started. The attorney for the plaintiff/claimant made a judgment call about whether to accept the case. The defense set up reserves based on early information. The unique facts of the case will determine how much investigation is needed to put an offer on the table.No one wants to bid too high or too low. Evaluation is an ongoing process. The mark of an expert litigator is knowing when to stop investigating.You don’t need to look under every rock. For example, if you have the experts’ reports, depositions may be an unnecessary expense.You don’t need to wait for a demand. Making an offer without a demand shows you are serious about settlement. This also creates an anchor, i.e., you are defining your evaluation range. The offer should be realistic, but at your outer limit. Putting an offer on the table may prompt your negotiating opponent to take a second– or first– look.
Don’t ignore an offer to settle. Nor should your kneejerk reaction be immediate rejection. Ask questions about how this number was calculated. Have you missed something? Have they? Don’t drop the negotiation ball. Look at the offer as an opening to constructive communication. A mediator can facilitate this process.
WHO
In early days, the adjuster may be best positioned to make an offer. Once an attorney is on board, the attorney speaks for the adjuster. But even later in the proceedings, the adjuster may be the best person to make the offer. This can happen when an attorney senses their opposite number harbors a personal animosity. Similarly, some claimants refuse to negotiate directly with their adjuster, particularly if there is a long contentious history.When adjusters attend mediations, they often take an active role in the negotiation. In rare situations, particularly in commercial cases, the parties can negotiate with each other directly. Direct negotiation like this may work best under the watchful eye of the mediator, but away from the attorneys.
WHAT
The perfect offer will reflect the evaluation effort which went in to creating it. Just like in grade school math, show your work. Avoid round numbers—at least initially. In most cases, the evaluator is considering actual down-to-the-penny bills. The offer should show how they were taken into account, even if a round number ultimately settles the case.As you close in on a deal, be sure to cover all the deal points. Remember everything you know about the Restatement of Contracts. There needs to be an ironclad offer and acceptance to finalize the agreement and foreclose later attacks. Make sure the deal you struck can be enforced in court if something goes awry.
HOW
Negotiations are often oral. If you encounter difficulties getting your opponent’s attention or you suspect opposing counsel is not conveying your offers to their client, a written offer is best.Confirm oral offers in writing. The strongest offers are more than an amount. Include a date by which payment will be made. Does the deal include any other consideration? Once you think you have an agreement in principle, confirm particulars such as how liens, costs, and fees will be handled. Identify exactly all the parties doing the releasing and all the parties/entities being released. What is the nature of the release—with prejudice, without prejudice. stipulation?
PERFECTION
Your first offer is unlikely to be the perfect formulation of that combination of factors that everyone can agree on. Keep making offers of settlement as the matter progresses, and keep an eye on the midpoint between offers and demands. Close when the zone of difference becomes negligible. Voilá: perfection. -
Workers Comp Litigation Guidelines Should Define These Four Settlement Triggers
Civil litigators tend to observe certain guideposts as mediation triggers, such as the closing of discovery, setting of a trial date, or an order from the court to use mediation. Because about 95% of civil cases settle before trial, mediation is the norm for almost every area of civil litigation.
In contrast, many California workers compensation attorneys don’t mediate their cases and are pretty unfamiliar with mediation. Moreover, because a workers compensation case can last literally for the life of the claimant, some practitioners feel no urgency to settle, even though that ratchets up the case value and expenses.
Instead, certain events should automatically trigger parties to actively pursue settlement.
The injured worker is 61 years old. Once the injured worker turns 62½, any buy-out of future medical care must include a Medicare Set-Aside. That MSA could make this case more difficult to settle. It might increase the evaluation more than any party anticipated and for sure will cause delay. Plus, with professional administration, money is no longer under the injured worker’s control. Settle before Medicare becomes a party.
Indemnity payments reach 70% of the expected total. Once all the indemnity is paid, there is no reserve to fund any part of the settlement beyond future medical. This often puts the employer’s side in the position of paying more than they think the case is worth to achieve closure. As for the injured worker, there is little incentive to give up guaranteed medical treatment for life if there is no compensation beyond a sum which may not fully fund future medical needs. Better practice is to monitor the indemnity payout and aggressively move to settlement before the indemnity reserve is depleted.
The Date of Injury was more than three years ago. The employer’s side has many reasons to want to get claims off the books. This is particularly true for private (non-governmental), self-insured employers who are legally required to pay a bond while the claim is open. “Old Dog” claims, those that are more than three years from Date Of Injury, deserve special attention. Widows and widowers receiving death benefits may welcome the opportunity to receive a large cash payment; sometimes they don’t even realize this is an option. In Pro Per claimants may also favorably respond to a settlement outreach.
Trial is Imminent. Nothing makes people think about settlement more than an upcoming trial date. You’ve lived with these facts for a long time; how can you be sure the judge will see things your way in the limited time available to communicate? Going to trial is a risk. Most people are uncomfortable with the lack of control. They are happier with a negotiated settlement.
Time to Call the Mediator
When events pull one of these triggers, it’s time to get serious about settlement. A mediator can help parties define the pertinent facts and law and efficiently bring the case to resolution. -
Applying the Scientific Method to Case Resolution
You undoubtedly studied the scientific method in school. You may have even applied it to sophisticated experimentation. Think about how to use that approach for case evaluation and resolution now 
Scientific Method Going Through The Steps
The scientific method can be defined in as few as four steps or as many as ten, but let’s think about a five-step process.First, identify the problem. Use what you know so far to start your action plan. For each possible issue, determine what information you need to resolve the question. That could be gathering records, talking to occurrence and expert witnesses, and researching alternative theories.
Second, gather data, i.e., discovery. The trick here is to be open to all information. Don’t ignore adverse information, a psychological phenomenon called confirmation bias. Your definition of the issues is likely to change as you collect more information.
Third, develop a hypothesis. This is your theory of the case. An amount of money or other relief is owed/not owed for the reasons shown by the data the parties have gathered.
Fourth, test your hypothesis. Here is where the art of case resolution and science diverge. Sometimes you can test your hypothesis with a motion to dismiss or for summary judgment. Those are rarely successful. This isn’t like subjecting a cell sample to different catalysts and seeing how it reacts.
The safest place to test your legal hypothesis is in mediation. Come prepared to experiment by seeing the result of your disclosures and negotiation. Besides interacting with your opponent in a structured, confidential process, you will get the benefit of the mediator’s guidance. Of course, unlike a scientific experiment, the best result, settlement, will probably fall somewhere between each side’s result hypothesis.
Without a settlement, parties must test their hypothesis by submitting the case to a judge or jury—and we all know how risky that can be.
Fifth, does the new data agree? What did you learn at the mediation? With this new information, you can revise your hypothesis and litigation strategy and test again. After a motion or trial, somebody won and somebody lost—at least theoretically. But a comparison of the net recovery or liability in comparison to the last offer and demand might show that neither side came out ahead. Depending on the posture of the case, it might not be too late to try to settle.
Use what you learned along this inquiry path to facilitate resolution in the next case.
How Thorough Do You Have To Be?
Scientists test every theory before they publish a paper of their results. The experimentation process can be long and expensive. Thankfully, you don’t have to go through that.
As soon as you get a file, you will start making decisions about how serious is this case. On the claimant side, the first decision is whether to accept the case, including what kind of time and money budget it will require. On the defense side, the client and counsel need to assess severity (is it a bet-the-company case/ is coverage available and adequate?) and possibly set reserves.
Even at the earliest stages, in most cases you have enough information to begin the negotiation and dispute resolution process. No, you don’t need to look under every rock for every crumb of information.
This claim may have started with a demand letter—a first opportunity for negotiation. Before litigation or before the parties undertake expensive discovery, consider convening a mediation.
Discovery will uncover facts which affect the evaluation of the case. After all, that is why you do it. Otherwise you are just spinning your wheels. Use that new information to suggest meeting with the mediator to conclude the case.
If that discovery leads parties to file potentially dispositive motions, the period while the motions are pending is another promising window for negotiation.
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In Sickness and In Health
The claimant was in his 30s and paralyzed from the chest down. No bowel or bladder control and no genital-to-genital sex. The settlement was seven figures.
Throughout the years since the accident, his wife had devotedly cared for him and acted as his champion.
Only One Person Perceived The Vibe In The Room
The claimant’s attorney had brought me in on this settlement. One reason, I believe, was my extensive experience. I had seen cases like this before.“Have you considered protecting the settlement to make sure it goes for his care? What if his wife leaves him?” I asked.“Oh, no,” he immediately answered. “She has been a rock. That won’t happen.”I described a couple financial preservation methods the claimant could consider. All were rejected.You Know What Comes Next
The next time I spoke with that claimant’s attorney he mentioned, “Do you remember John Smith? It was just as you predicted. As soon as the money was in their bank account, she left and filed for divorce. He didn’t put up much of a fight, and she got a big chunk of the settlement.”Part of the Job
As mediator, I try to help people recognize issues in the case. That includes how to make available funds go further. That might be through a financial planning device or perhaps characterization of the funds in an insurance reserve. I might even raise the issue of protecting the funds from someone who had promised to be there “until death do us part.” -
It’s Confidential, So I Can Lie, Right?
An important underlying principle of mediation is that communications made in the course of mediation are not admissible in other civil forums. So, is it okay to make stuff up?
There’s a Rule
California Rule of Professional Conduct 4.1 provides, in part: In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person…Business & Professions Code 6068 requires an attorney “to employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”
It’s the Ethics
The difference may be subtle. Puffing is okay. Lying is not.
Puffing refers to exaggeration, opinions, and representations about future actions. “My client will never settle for less/more than $100,000” is a type of posturing often seen in negotiation. Yet, I have often settled cases for a number both parties had previously rejected as one they would never accept.Descriptions of pain are subjective. Because these representations are impossible to verify, they can easily be exaggerated or baselessly dismissed. “My client’s chronic pain prevents her from ever working again” may be puffing—or it might not. If, however, the attorney knows the client is clandestinely working a job or has accepted a job offer, this statement is a false representation of a material fact in violation of the ethical rules.
Valuations based on conflicting expert witness reports are the fodder for arguments about what is a proper settlement. Basing a negotiation stance on a hired expert’s report is appropriate. Intentionally failing to disclose pertinent information which would materially affect that expert’s opinion is an ethical breach.
Ethical, But…
While outlandish puffing about the value of a case may be ethical, it may not be in anyone’s interest. Ridiculous posturing and a lack of civility impair fruitful negotiation.Mediation results in settlement when parties make every argument based on the facts and the law while engaged in good faith negotiations. -
Chatting with ChatGPT
I recently attended a webinar where the speaker stated that as facts emerged in mediation, we would be able on the spot to turn to Artificial Intelligence for a case evaluation.
Uh, no.
Don’t get me wrong. I have test-driven ChatGPT. It is a phenomenal tool and search engine. If you are stuck for ideas, a carefully crafted query can produce excellent results. Then it’s up to you to use those results to produce your own work product.
For example, I asked for five reasons to timely notify an insurance company of a loss. Here is an outline of the answer, omitting the full explanations:
- Fulfillment of policy requirements
- Faster claim processing
- Evidence preservation
- Compliance with legal obligations
- Protection against further damage
I tested the ability of ChatGPT to evaluate a case. I provided a figure for medical expenses and lost earnings and no specific amount for pain and suffering. ChatGPT answered:
As an AI language model, I cannot provide legal advice or determine the outcome of a personal injury case, as these depend on various factors such as the specific circumstances of the incident, the jurisdiction, and the evidence presented.Similarly, the answer about the value of a workers compensation claim was:
…each case is unique, and the value of a workers’ compensation settlement can vary widely depending on the individual circumstances. To get a more accurate estimate of the value of a settlement for a particular case, it’s best to consult with a qualified workers’ compensation attorney in California.And those are the right answers. Lawyers and claims professionals supply the human intelligence to evaluate a case based on all the variables. AI is great at collecting available information and presenting it in a requested format. What it can’t do is analyze and evaluate.
In my book Personal Injury Case Evaluation: What’s My Case Worth?, I explain seven specific ways to use your human intelligence to evaluate a personal injury case. AI isn’t going to do it for you. But a mediator can help you figure it out.
