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

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.

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

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.

Peace on Earth, Good Will to Men

You’re sure to hear this phrase repeatedly in December. What are you doing to make it happen?

Most readers of this message are professionals charged with managing disputes. You may spend a considerable amount of time strategizing how to annul the opposing party’s claims. That’s appropriate. It’s your job. But what practically every party involved in a conflict really wants is peace. Settling parties often say they are compromising in order to get peace.

It’s also your job to achieve the optimal result in a cost-efficient manner. Mediation is a way to achieve that outcome. A trained professional neutral will work with all parties to achieve their own bit of peace– not just at holiday season, but all year round.

HAPPY HOLIDAYS

Mediation Opening Statements

Times have changed. In the past, mediators would open a mediation by asking for opening statements from lawyers for each party. Problem was, though, these were typically so inflammatory that a meeting which was supposed to be about resolution started with animosity. Sometimes one side walked out right then, before the real mediation even started.
 That’s why I have never invited opening statements at the start of a mediation.

Lawyers no longer want opening statements either. I have even had lawyers ask that there be no opening joint session with all parties present. Rather, they wanted to work with me only in caucus, one side meeting with the mediator,  keeping every communication confidential. The lawyers wanted to avoid the hostility which previously permeated the parties’ dealings.

Unless there is strong objection, I start mediations in a joint session. I introduce myself and go over logistics: important stuff such as where are the bathrooms and how we will handle meal breaks.

I also assure everyone that nothing bad can happen. The parties control the outcome, and there can be no result they did not agree to.

Everything that happens in mediation is confidential and cannot be used against anyone in a different civil forum. To emphasize that rule, while we are still in the opening joint session every person present signs a confidentiality agreement.

Then we typically break up into caucus.

The only person who has made an opening statement is me, the mediator. 

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.

The Last-Minute Report

On several occasions, counsel has appeared for mediation with an expert report dated the day before. Often this attorney has not served a copy of the report on opposing counsel. Nor did the advocate attach this document to the mediation brief.

What effect does this report have at mediation? I have never seen a last-minute report have a beneficial effect. Rather, it really ticks off the other side. Sometimes, the recipient threatens to cancel the mediation. My job is then to calm everyone down so we can negotiate.

The contents of the last-minute report are never a surprise. The report restates the author’s or some other expert’s opinion that bolsters that party’s position. I tell mediation participants that we will assume the opposing party could get an opposing report which fully bolsters their position. If the case does not settle, that will surely happen. For purposes of the mediation, however, the value of that new report is zero, nada, zilch.

Moral of the story: If that expert or that report was not obtained in the course of litigation, don’t bother getting it the day before mediation.