Teddy Snyder

Category: _Regular Post

Category to place the post in the last group of the blog page and not in the featured posts sections.

  • Be Nice

    Nice guys do not finish last. To the contrary, they are more likely to get a satisfactory result

    Remember Civility?
    I was kind of surprised to learn that a “California style mediation” means going into caucus immediately and staying there until settlement or final impasse. Apparently, in the rest of the country, advocates and parties talk to each other with the direction and help of the mediator. They actually collaborate face-to-face rather than through a mediator filter. Presumably, people are not throwing books on the conference table or stomping out the door. They are actually being >gasp< nice.

    Be Nice in Advance
    One way litigators can help everyone get to settlement faster is through good faith discovery. Don’t ask for overbroad responses. Burdening the opposition only delays the litigation. Don’t copy a bunch of boilerplate objections and not provide meaningful information in your responses. Get it done in time for everyone to have parsed the information in advance of the mediation.

    Actually prepare for the mediation. Every case turns on five or fewer issues. Define them, know what your evidence or the law is that makes yours a winning position. If you can define the pivotal issues, you can cogently present your case. A clear presentation of the groundwork of the case will likely endear you to the mediator.

    Seeing Yourself
    One theory is that negotiators have gotten nicer because of remote mediation. When someone can see himself/herself close up in the camera, that person can see how ugly that temper tantrum really is—not to mention ineffectual. Unfortunately, not everyone has gotten the message.

    What if past dealings block any interest in being nice to your opponent? Here is a trick. Pretend. You don’t have to feel nice—just pretend to be nice. Even if inside, you feel like you want to stab this person.

    Resolve to be nice—even if others are not. It’s the best way to move your case forward.

  • Health Insurance as an Item of Damage

    Future insurance premiums might be a valid component of a settlement evaluation.

    If the claimant must now pay premiums that would not be required “but for” the litigated occurrence, a claimant may present this expense as an item for compensation.

    Considerations include:

    • What did the claimant pay for health insurance prior to the occurrence?
    • Was the health insurance subsidized as an employment benefit which is no longer available?
    • Is the claimant on Medicare before the normal retirement age as a result of the subject occurrence?
    • Will this settlement disqualify the claimant from receiving public benefits?

    The premium is just the starting point. Parties may also calculate deductibles and co-payments, as well as items which may not be within the insurance coverage, such as transportation and home health care.

    The cost of health Insurance will continue to rise. In coming to an appropriate figure, parties may discuss a cost-of-living adjustment versus a reduction of future cost to present value.

  • Medical Expense HopScotch

    Injury claimants are most likely to accept a settlement offer that 1) takes care of liens without wiping out the entire settlement and 2) provides a safety net for their future medical care. In mediation, I try to prompt negotiators to present proposals which show how a demand or offer addresses these issues. To do this, negotiators must review past medical expense records, understanding that claimants may hopscotch among payors or have concurrent payors as their status changes.

    Private insurance Most Americans under 65 get health insurance through their or a family member’s employer. Some people may have purchased health insurance through an Affordable Care Act exchange such as CoveredCA.com; depending on their income, they may receive subsidies to reduce the premium. Claimants who are no longer able to work, and now have a pre-existing condition, may have transitioned from an employer’s plan to an Affordable Care Act plan. Some claimants may be self-procuring health insurance, including Medicare enrollees buying supplemental plans known as Medigap insurance and Part D prescription drug plans.

     

    Workers Compensation will have paid past medical expenses for an accepted industrial injury.

     

    Medi-Cal pays medical expenses for low-income individuals who qualify

     

    Medicare provides medical care for disabled people who have qualified for Social Security Disability Insurance after 30 months, as well as for Medicare enrollees  who have reached  normal retirement age.

     

    Out of pocket – Those with the financial ability to do so may self-pay when they lack insurance or want a procedure the insurer has denied or stalled.

     

    “On a Lien” – When an attorney refers the client to a medical provider who provides services without charge, the provider has a lien on the ultimate case proceeds.

     

    Every one of these possibilities (other than expenses paid out of pocket by the rare individual who can afford it) can give rise to a lien which must be resolved before settlement proceeds can be distributed. Negotiators should determine the extent of such liens before coming to mediation and be prepared with a plan to fund the injured person’s future medical needs.

  • The One Word to Keep Negotiation Going

    How do you react when your negotiating opponent says something completely outlandish? Some negotiators walk out. Some blow up, screaming invective. Some stoop to insult. In short, they do everything but negotiate.

    Keep negotiating
    You can’t reach a negotiated settlement if you’re not negotiating. Sometimes you must react to the nonsense you have just been offered. But how to respond when you are actually biting your tongue?

    Wow.

    There it is. The single word that keeps you non-committal.

    The Perfect Rejoinder
    The injured person has spent 20 minutes weepily telling a tale of woe. You may believe the person has problems, but they are unrelated to the cause of action under discussion. Your respectful response: wow.Opposing counsel has just literally laid on the table proof that your side has concealed evidence for more than a year and lied about it in discovery responses. You know you need to round up your team and figure out what has been going on. Your dispassionate response: wow.

    Defendant insists that their personnel were nowhere near the alleged incident at the critical time. You have just uncovered video footage that shows this is false, but you are not quite ready to disclose this. Your calm response: wow.

    Wow Works Wonders
    A startling, emotional, or angry statement could tempt you to respond in kind. But ratcheting up the emotion index can interfere with the parties’ ability to keep things in perspective. While others around you are heating up, staying cool as you observe the dynamic keeps you in control. Wow.

  • 3 Tips for a Successful Mediation

    Assessing your case from your side’s point of view is critical. But it won’t get you far if you don’t pay attention to your opponent’s needs as well.

    Here are three tips to help you move from conflict to resolution.

    1. Spend time sizing up the case from your opponent’s point of view. They are most likely to see things your way if you can pitch your case to match their needs.
    2. Mediation may be the only opportunity to direct information to the client without the attorney filter. Present information in joint session or through the mediator to appeal to the client.
    3. Assess your litigation budget—and your opponent’s. Look beyond the dollars. Before you head to mediation, draft a plan for discussing the time and energy that will be required as well as the emotional investment.

    Every negotiator would love to get everything they want. That’s not likely to happen. Try to fashion a compromise that appeals to the parties’ needs.

  • 3 Logic Skills to Favorably Settle Your Case

    Most of the cases I mediate are fact-dependent. The law is settled; it is up to the parties to correctly apply the law to these facts. Yet, lawyers sometimes show up with little understanding of what the relevant law is. When the applicability of statutes and regulations is cloudy, case law provides interpretation. Reconsider how these three logic skills apply to that case you know just needs to be settled before parties spend any more time or money.

    Analogize /Extrapolate/Distinguish
    Every individual is different; hence, every case is unique in some ways. Legal analysis involves  researching legal precedents to see the similarities to and differences from the facts of this dispute.

    If case law favors your position, fashion your arguments to show why the precedent is an analogy for the facts of the present case. Instead of understanding this basic legal skill, I see advocates argue against their client’s interest that there are differences.

    To create an analogy, one must extrapolate, i.e., show how the court deciding this case should apply the reasoning of the previously decided case to different facts to rule in favor of the client. This argument requires thoughtful preparation and creativity.

    An attorney who argues that a precedent is so different that it has little bearing on the present dispute is distinguishing that precedent. This is an analysis of degrees of difference.

    If you dig deep enough, you can probably find cases that could suggest opposite results for your case. Don’t ignore the unfavorable ones. The skillful practitioner will show why the favorable cases are analogous to the one being negotiated and the unfavorable ones should be distinguished.

    Remember, you can direct your mediation statement solely to the mediator, and it will remain confidential. Whether in a court memo, a mediation statement, or a demand letter, a reasoned presentation is more persuasive than a bombastic declaration.

  • How the Inflation Reduction Act Does- and Doesn’t- Affect Your Injury Settlement

    The Inflation Reduction Act of 2022 is packed with provisions about tax calculation and collection and climate change. It’s also got provisions worthy of the attention of anyone handling injury cases. Some of these provisions have been widely, but not fully, publicized.

    Medical Insurance Premiums
    Remember those three ways to evaluate future medical expenses? People who get their health insurance through health exchanges like Covered California were scheduled to see a major rise in premium expense at the end of this year. The Department of Health and Human Services projected that three million people would lose their health insurance coverage. The Inflation Reduction Act continues the subsidies that make premiums under the Affordable Care Act actually affordable through 2025.

    2025?, you may say. That’s not very long when computing a person’s lifetime medical expense. True, but it is also true that once a public benefit is entrenched, Congress would find it very difficult to take it away. Skilled negotiators know how to fashion settlements which anticipate these events.

    Downward Pressure on Medication Expense
    Drug companies’ profits are soaring. One reason is that when Part D coverage became law, the compromise was a ban on Medicare being able to negotiate drug prices with drug companies. This contrasts with the way the Veterans Administration manages their drug costs. Medicare accounts for one-third of all prescription spending in the United States.

    While there has been a lot of publicity about the new law granting Medicare negotiation power for the first time, the benefit is more meager than at first glance. First, it doesn’t start until 2026, and even then it’s not a blanket change. It applies to 10 drugs in 2026, 15 in 2027, 30 in 2028 and 40 in 2029 and after. The affected medications are to be chosen from the 100 most expensive pharmaceuticals (50 from Part D, 50 from Part B). What’s more, the drugs subject to price negotiation cannot include conventional drugs that have been approved for marketing for nine years, biotech products with marketing approval for13 years, or “orphan” drugs — those with exclusive FDA approval to treat certain rare conditions. This brings most drugs close to the end of the life of their patent, after which lower-cost generics will become available.

    Those of us who have been evaluating future medical expenses for a while have learned not to rely on prescription costs decreasing because the injured person’s current medications are going off-patent. Drug companies are always innovating. Just when it seems like the availability of a generic will reduce ongoing prescription expense, the injured person gains access to a new, better drug with a high price tag.

    Other Part D Limits
    The Inflation Reduction Act limits out-of-pocket spending by Part D enrollees to $2,000 per year. Premium increases are limited to 6% a year from 2023 through 2030. These limits provide better insurance coverage, but due to the collateral source (civil) and primary payer (WC) rules, won’t change case evaluation without meaningful price reduction. On the other hand, the limitation on how much the injured person will actually have to pay can encourage greater negotiation flexibility.Stay Vigilant
    Depending on how the political winds blow, these changes might be just the first step toward changing how Americans pay for healthcare. Or it may take decades before more important changes occur. News reports typically ignore the effect of such laws on dispute negotiations, so you will have to read between the lines and stay alert. Working with a skilled, experienced mediator can help you navigate these shoals.

  • Confidentiality Agreements, Zoom, and Procrastination

    Confidentiality is a hallmark of the mediation process. Information introduced exclusively at the mediation, whether oral or tangible, cannot be introduced in any other civil forum. The Evidence Code spells this out for civil cases; the Government Code applies in administrative cases. Guaranteed confidentiality promotes frankness, especially when people are in caucus with the mediator without the presence of other parties, which in turn facilitates settlement.
    Get It in Writing
    Each person who is present at the mediation, regardless of their role, needs to sign a joint confidentiality agreement. This can be executed in counterparts.

    Though the statutes spell out the confidentiality provisions, executing an agreement assures that each person is aware of the provisions and has consciously committed to abide by them. Many mediation services specifically require execution of a prescribed mediation confidentiality form. The U.S. District Court Approved Mediators Panel for the Central District and the Center for Conflict Resolution which provides mediators for certain state Superior courts have such forms. I am a member of both these panels.

    When a mediation is set up, participants will usually receive a packet, including a copy of a confidentiality agreement with instructions about returning it. Participants can expect to receive the document weeks or months in advance.

    Though there may be plenty of time to obtain parties’ signatures, attorneys and claim professionals seem to lack the organization necessary to return the agreement in a timely fashion. The demands of the most pressing matters can turn the most efficient of us into procrastinators.

    What Is the Most Productive Use of Mediation Time?
    Before the COVID pandemic, mediations were almost always held face-to-face. Confidentiality agreements were circulated in the opening joint session. The need for remote, virtual mediation via platforms like Zoom changed this dynamic.Getting signed confidentiality agreements to the mediator is now more unwieldy. Typically, agreements are downloaded, then electronically signed; alternatively, participants can print the agreement, physically sign it, then scan, save and transmit the document. The hiccup occurs when parties do not transmit the signed document before the mediation.

    The mediation will not start without submission of the confidentiality agreement. If it has not been submitted, time is spent on the administrative task of gathering the documents, rather than in negotiation.

    If parties are benefiting from three free hours of a mediator’s time, is this the best use of that expertise? If this is a paid mediation, do you really want to pay for the mediator’s time spent on this mundane task rather than working on settling the case?

    Shun Procrastination

    To avoid wasting everyone’s time at the start of a mediation, start working on getting a fully executed confidentiality agreement to the mediator as soon as you have the form. Calendar dates to follow up with the necessary signers just as you would calendar other litigation deadlines. Not only will your mediation proceed more smoothly from the first moment, you will impress the mediator with your dedication to the settlement process.

  • Focus on the Future

    A 2013 market study indicated that 21% of the U.S. population read science fiction. Science fiction films are even more popular.

    If we’re so fascinated with speculation about the future, why do we look to the past instead of the future when we negotiate?

    Instead of planning for a life without conflict, negotiating parties tend to dwell on issues of the past. For example, fixating on how much money has already been spent (called “sunk costs”) instead of on how much will be saved by settling now, can get in the way of an objective case evaluation.

    Litigation creates anxiety. We know that parties are relieved once their disputes are resolved. Redirecting negotiators’ attention to a future without the ongoing investment of time, money and stress can spur settlement. That is true for how your team discusses their position and also how you present your position to your negotiating opponent.

    A future without conflict is a better future. Mediation can help you get there. And that’s not science fiction.