Held Hostage by a Torturous Claim? How to Escape

Do you feel like you and your clients are hostage to a claim that goes on and on? Every treatment request triggers a new round of litigation. The injury happened decades ago, and the disability percentage still has not finalized. The parties are at each other’s throats.

You can use tips from professional hostage negotiators to free the prisoners of that claim.

Keep Everyone Calm 
By definition, kidnappers are making unreasonable demands. The negotiator’s job is to keep everyone calm to work through the process without anyone taking sudden destructive action. 

Your opponent is a jerk, and your client has a knee-jerk negative reaction to every proposed alternative. Claim litigation can be stressful. The lawyer needs to walk a line between assuring the client of zealous advocacy and being a voice of reason. Near-hysteria can be contagious. So is calm.

In mediation among contentious parties, the mediator can separate them into separate areas, called caucuses, to block confrontation. The mediator channels messages between parties in a calm, reasoned way.

Active Listening
Hostage negotiators are trained to pay attention to the kidnapper, show respect for the kidnapper’s statements, acknowledge receipt of the message, and even read between the lines to figure out the best way to proceed to resolution. You need a mediator who knows how to do these things and can help you do them, too.

Keep Talking
Whether people are trying to defuse a hostage situation or settle an injury claim, as long as everyone is still talking, things will keep moving toward resolution. Prepare yourself and other participants coming with you to be patient. Bring snacks and something to do while the mediator is caucusing with other groups. Do not bring children. Confirm no one is carrying a weapon.

Continue to explore every path toward resolution. More often than you might imagine, an issue emerges that parties were previously unaware of.

At last. . . 
The most fraught situations can end in peace when participants control emotions and continue to communicate their needs.

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.

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?

When The Injured Worker Calls- Ethical Implications

I get calls at least once a month from represented injured workers who don’t know what is going on with their claims. Stop and think about that in light of the Rules of Professional Conduct.

Typically, in violation of existing rules, the AA has not communicated with the client. Sometimes the attorney has given the client false information. Recently an IW told me his lawyer said there was no such thing as mediation for workers’ compensation cases.

Many of these IW’s are reaching out directly to the employer’s counsel to try to resolve their issues. This puts the employer’s counsel in a difficult ethical position. New Rules 4.2 (represented person) and 4.3 (unrepresented person) lay out the restrictions on defense counsel for that communication.

Frustrated injured workers who want to resolve their claims are seeking information on the internet. That’s how they get to me.

I am not an advocate for anyone; I am a professional neutral. I have always made that role clear to callers. New Rule 2.4 requires mediators to inform unrepresented parties of the mediator’s neutrality. All I can do is assure the workers that I am available to mediate and to talk to their lawyers or adjusters about starting the process.

If you get a call from someone who wants to mediate, don’t brush off that inquiry. There is no charge to talk to me about whether mediation is right for your case. I’ll give you the information you need.

Humility Leads to Mediation Success

Here’s an oxymoron for you: the humble litigator. Like jumbo shrimp and military intelligence, it may seem ridiculous to pair humility with any litigator. But for anyone trying to settle a claim, a little humility can help get you to the finish line.

Most of the time that dispute will eventually settle without court intervention. The parties want to resolve the issue with the smallest expenditure of time and money. Incivility, bias, prejudice and anger are inconsistent with humility and get in the way of settlement.

Acting with humility does not admit fault. The most successful litigators are courteous and respectful.

I’m The One Who’s Right
Of course you are.

Then why is the other side fighting so hard to say the opposite? Of course they’re completely wrong, but maybe, just maybe, you could pretend they have a reasonable point of view. Or—here’s a shocking concept—try to see their point of view.

 

Students learning to debate (or get through law school) may be asked to argue a position with which they disagree. While preparing for mediation, try to outline the other side’s position and think about all the reasons supporting that position. This is an excellent way to marshal your own arguments.  It is also an exercise in empathy.

You Want Me To Do What??
Think about forgiveness. When you feel wronged, your desire for vindication may make negotiation difficult. Forgiveness must be internal and not necessarily verbalized.

Forgiveness is about moving on, doing the best thing for you and those you represent, not for the benefit of the offender. Forgiveness keeps you in control of your emotions rather than surrendering control to the volatility of others. Forgiveness does not validate the other side’s behavior or minimize the damage it has caused. It doesn’t mean you were not wronged or that the parties will have a good future relationship.

Conversely, a well-phrased apology has helped settle many a case. For example, I watched one litigator, without any prompting and without admitting fault, express sorrow that the injured worker had experienced a lengthy delay in getting treatment. That may not be right for your case; for his, it was. Don’t forget that everything said in mediation is confidential and cannot be used for evidence in any forum.

Good People, Strong Emotions

You’re a good person, right? Yet, difficult situations can spark rage and other extreme emotions in the best of people who then behave without humility.

In mediation you can state your position in the strongest terms in a private session with the mediator. The mediator can then skillfully communicate those emotions to move parties to settlement.

A bit of humility can improve your effectiveness in formulating and reacting to those communications.

Documenting the Mediated Agreement

Almost all of my mediations end with agreement to a Compromise and Release. Parties often bring a partially completed Compromise & Release form, DWC-CA form 10214(c), to the mediation. That’s great. But when considerations prevent execution of a final agreement at the mediation, a Memorandum of Understanding, known as an M.O.U., can be invaluable.

What Is It
After working hard to come to terms, you don’t want to let the passage of time blur people’s memories or minimize their commitment. Participants should not leave the mediation without a record of their agreements.

A Memorandum of Understanding memorializes the skeleton terms agreed upon at the mediation. Parties sign off at the mediation. The M.O.U. might specify a timeline or conditions.

If It’s Complicated
Some settlements are complicated, requiring many addenda. Unanticipated issues may have arisen and been resolved at the mediation. Parties need to return to their offices to draft the final settlement document. The M.O.U. should specify the basic terms as well as deadlines for completion of the initial settlement document, exchange of revisions, and submission to the WCAB.
Conditional Agreements
Some agreements are conditional, usually upon CMS approval of a Medicare Set-Aside allocation. Attorneys may address this issue by doing everything but the walk-through, including signatures, pending approval. This leaves a potentially dangerous loophole when unforeseen events occur during the waiting period.Another way to document a conditional agreement is through an M.O.U. Unlike the agreement which sits in a file drawer, an M.O.U. can specifically address the condition, including what will happen if the condition cannot be fulfilled. For example, if CMS comes back with a higher amount, and the parties do not assent to that amount within a specified time, they can agree to return to mediation.

Getting to MOU

Mediation allows parties to address issues outside the jurisdiction and procedures of the WCAB and to fashion creative solutions.

If you have despaired of closing that troublesome,  decades-old claim, turn to mediation.

Take the bull by the horns, and the result may well be an M.O.U.

What’s Wrong With Telephone Negotiation?

A litigation analysis found that lawyers used telephone negotiation in 72% of the cases studied resulting in settlement only 35% of the time. That means that phone negotiation sessions or other settlement processes had to be used multiple times to get to settlement. We can assume that repetition resulted in a loss of time and money for the participants.

In contrast, mediation resulted in resolution 100% of the time in the studied cases. Yet, lawyers used mediation in only 2% of the cases.

Lack of Visual Information
You can’t share documents or other visuals over the phone. Even if all participants to the call are supposed to have the documents in their possession, you can’t be positive they are actually looking at it, even if they say they are, or if it’s the right one.

Body language provides visual cues to the negotiator about how things are going. Facial expressions can show surprise, anger, or anxiety as parties exchange information. You can’t look someone in the eye over the phone. Without the visuals, it may be easier for people to dissemble. Likewise, over the phone you are unable to enhance your own message with gestures or other body language. In mediation, the mediator interprets participants’ body language to better facilitate negotiation.

Getting Negotiators to Pay Attention
Listening is hard work. When negotiators use the phone, they may not be focused. There could be active interference, e.g., flashing lights and text messages on the phone, incoming emails, other notifications from multiple devices, or co-workers coming by. Even without those distractions, people’s attention may drift.

Technology Can Get In the Way
What about using Facetime, WhatsApp, Skype or another video call utility? Theoretically, this could overcome some of the deficits of voice-only negotiation. On the other hand, have you seen the hilarious Tripp & Tyler video about video conference calls? Even when the technology is working perfectly, body language can be difficult to interpret or convey through video.

Video conferencing might be helpful during mediation if, for example, the adjuster or injured worker is in another state and unable to travel to the mediation, assuming the principal negotiators are physically present.

What About Meeting At The Board?
Meeting at the board could resolve some of these issues if the parties come with adequate authority, fully prepared, with all relevant information available to them, and with no time pressures.

How often does that happen?