Teddy Snyder

Tag: workers compensation

  • 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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  • Privacy Issues When Predators Cause Comp Claims

    In the #MeToo and #TimesUp era, employees may be more ready to assert sexual aggression claims than in the past. These situations could lead to a workers compensation claim, a civil suit or even criminal proceedings. Privacy is an issue in each setting, but only in comp is the claims professional engaged in the victim’s medical treatment. Privacy issues merit consideration throughout the life of the claim, including at time of resolution.

    The applicability of SB 863 and Labor Code §4660.1(c) regarding the compensability of psych claims is outside the scope of this post.

    Who is the adjuster?
    Advocacy based claims handling emphasizes empathy with the injured worker.  Adjusting a claim for physical injury from rape, actual or attempted, or a psych claim arising from sexual aggression may call for special attention to who will see the injured worker’s records.  A female adjuster may be best suited to handle a woman’s claim.  But reports of Kevin Spacey’s and others’ behavior remind us this problem is not limited to aggression against women.

    An important concern with #MeToo claims is to avoid a string of claims personnel who have access to the injured workers’ medical records as they make treatment authorization decisions. Some companies have procedures to limit access to sensitive records. However, the longer a case is pending, the more likely it is that multiple people will need to see these records, possibly causing additional stress for the injured worker.

    Confidential Resolution
    As with all other workers compensation claims, early resolution is best. Mediation is the most private place to resolve sexual aggression claims.  Unlike with an informal meeting, mediation confidentiality is mandated by law.

    A WCAB hearing may create additional psychological issues for someone who has had these experiences. Assure that person or their representative that participants are barred from disclosing what happens in a mediation in other forums.

    Additionally, caucusing enhances a claimant’s privacy. Once I have separated the parties into separate spaces,they can talk to me without fear that anything will be communicated to those in the other room without their permission. As the mediator, I can reframe the injured worker’s concerns to maximize privacy. This environment facilitates case settlement.

  • Mediate to Comply with this Regulation

    Ready to file that DOR?  Not so fast. If you can’t show you tried to settle, you may be wasting everyone’s time.
    Mediation Shows Readiness
    8 CCR §10414(d) requires that “All declarations of readiness to proceed shall state under penalty of perjury that the moving party has made a genuine, good faith effort to resolve the dispute before filing the declaration of readiness to proceed, and shall state with specificity the same on the declaration of readiness to proceed…. [emphasis added]”The way to show a genuine, good faith effort at resolution is to mediate the disputed issues.   Here’s how you meet the regulation’s requirement to state with specificity:”The parties attempted to resolve the described dispute through mediation with mediator Teddy Snyder on [date].”

    How often will you need this language? Almost never. The reason is that once parties mediate their dispute, more often than not they resolve it.

    Convening
    Convening, the process of getting everyone to agree to a time and place to mediate, can be the trickiest part. Some practitioners remain unfamiliar with mediation. They may confuse it with arbitration. We are all afraid to try new things, sometimes even when clients tell us to. You need to communicate your readiness to resolve the issues in a setting where those issues can be fully explored and the parties are in control of the outcome. Mediating is the win-win choice.

    Convening is best done by the attorneys, though the mediator can assist. If you are still trying to get the other attorney’s attention, you may indeed have to file that DOR. Once you get a response, even if it takes going to the Board, immediately suggest mediation as a way to cut to the chase, resolve the issues and avoid future unnecessary Board appearances.

  • New Year, New You? It’s Your Decision

    “New year, new you.” How many times have we heard that one?

    Yet, the same problems that vexed us in December are still there in January. You may be planning to lose weight, save money, or spend more time with family. But what are you doing about a new approach to resolve your ugliest workers compensation claims?

    Start by identifying claims that are ripe for closure. Look at the injured worker’s birth date; if the injured worker has reached age 61 and isn’t already on SSDI, it’s time to get serious. Is the claim more than five years old? Are you spending time and money with frequent WCAB trips?

    Workers Compensation professionals often have a to-do list which actually impedes claim closure. The content of that additional report may be completely predictable. You could settle without it. Meanwhile frustration, disputes, and expense increase.

    Call me to talk about whether the time is right for mediation. There’s never a charge for that discussion.

  • Slice Workers Compensation Claims to Settle Them

    One of my favorite methods for resolving Workers Compensation cases in mediation is slicing. Slicing a dispute into its separate issues allows parties to reach early partial agreement, paving the way for complete resolution.

    Parties sometimes want to put one number on the table without specifying how much of that number may represent PD, LP, future medical care or any other issue in dispute. There are pluses and minuses to this approach.

    Benefits of Slicing
    A typical Workers Compensation mediation requires resolution of multiple issues, each of which is subject to a separate evaluation calculation. Often there are sub-issues. For example, in calculating PD, not only is the disability percentage up for discussion, but perhaps also the average weekly wage or dates when compensation should or should not have been paid as TD.

    Drilling down to the reason for disagreement on each issue can be enlightening. One side may have an “Aha!” moment when they finally catch on to why the parties have been at odds. Before mediation they may have negotiated without understanding the other’s motivation.


    When negotiations are stalled, slicing can shift the parties’ focus. Slicing can produce forward movement when parties have reached an impasse.

    Focusing on individual issues may resolve some issues while allowing parties to litigate only the remaining disputed issues. Sometimes resolution of a single issue, such as which medical treatment will be authorized, leads to parties adjourning the mediation to test the good faith of the adversary as well as the mediation process. After this initial hurdle, parties can return to mediation.

    The Benefit of the Single Number Offer/Demand
    Presenting a single number allows a negotiator to “log roll.” When evaluating for settlement, a negotiator can borrow from one column where the argument is strong to shore up the evaluation of another issue where success is not so certain. By presenting a single number, the negotiator minimizes argument about a single issue and leaves it up to the offer recipient to parse the figure among the issues.

  • Counting Our Blessings

    Particularly at holiday time, many of us consciously count our blessings. I recently participated in a study group that looked at the question, “What is a blessing?” For me, the all-encompassing blessing is safety and security. You could call it “peace.” That includes being grateful that I have not suffered a disabling injury or illness.
     
    The Blessing Of Peace
    Perhaps the most familiar biblical reference to blessing is the priestly benediction in Numbers 6:24-26:
    “The Lord bless you and keep you;
    The Lord make His face shine upon you, And be gracious to you;
    The Lord lift up His countenance upon you, And give you peace.”
    Our group looked at a few sources, including Genesis 12:2 where G-d tells Abraham, “You shall be a blessing.” The conclusion we finally reached was that being a blessing is not about asking for stuff; it’s what you do for other people. Being a blessing to others can bring peace to them and to you.
    Mediation Brings Peace
    Many of us spend our days confronting conflicts and trying to resolve them. Controlling the conflict in our lives is a way to achieve peace for ourselves and others. Some mediation participants will actually say they are buying their peace. Unlike in a court proceeding, the parties are in control in mediation. Mediation can get people to resolution quicker.
    I am grateful I can help bring peace to mediation participants. Try thinking about techniques to bring more peace (closure) to what we do. You shall be a blessing.

     

  • Don’t Get Hangry

    Hungry negotiators are bad negotiators. The term “hangry” arose because hunger actually makes people angry, hence “hangry.”

    If the mediator provides you with a sandwich menu to order food, it’s not just a courtesy. Nourishment keeps people focused on the mediation instead of their tummies. Take advantage of that menu to keep up your blood sugar. If you are released for lunch while the mediator is caucusing in the other room, go get some lunch. Don’t be shy about brown-bagging or bringing snacks for everyone on your team to save time and money.

    For some reason, negotiators seem loath to take meal breaks. On one occasion, the injured worker let everyone know he was hangry. He became visibly agitated and wanted to terminate the mediation early, even though negotiations were progressing. Now I bring nutrition bars to mediations to mitigate the problem. But why have a problem at all? Go ahead and eat.

  • Plan How To Start Your Mediation

    The way mediations start is important. A bad start can result in a lot of wasted time getting to the place you should have been at the beginning.

    The First Move
    The best way to start is to start. Don’t be afraid to make the first offer to settle. Setting a settlement floor or ceiling tells your negotiating opponent where you are. Silence can falsely communicate that you are in the same ballpark.

    Even if your offers did not get a response before, making a new offer now re-defines the settlement ballpark. An offer made “in light of new information” (even if that is simply a reconsideration) is not bidding against yourself.

    Start Very Big or Very Small
    Think about how your negotiating opponent will react to your opening. Your initial offer should not be so ridiculous that your opponent will walk out. On the other hand, research tells us that an extreme number can lead to a final result closer to the speaker’s expectation than does a more moderate opener.

    Pick the Tiny Issue
    Seldom does settlement turn on only one issue.  Plan to start with the issue where the parties have the smallest evaluation difference and continue on as the challenge size increases. You may have to skip and come back to the thorniest issues regardless of size. Isolating issues and knocking them down one by one is an effective way to reach agreement.