Tag Archive for: Litigation Management

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.

Mediation During the COVID-19 Shutdown

Mediation Is Critical Right Now
Courts are closed. Attorneys and claims professionals are working from home as best they can. But disputes continue. If an employer is responsible for a claimant’s medical care, delivering that care during a “Shelter in Place” order is a challenge. How a dispute is handled now can determine how the case will proceed in the long term.

Because courts are closed, litigating parties should make an extra effort to resolve disputes through negotiation. However, when they are unable to do so, agreeing to mediate is the best alternative. Issues subject to mediation can include conflicts usually resolved by motion, discovery disputes or entire cases. You can contact your mediator of choice by phone or text at 310/889-8165 or by email. She will take it from there.

Two mediation options are available during the shutdown.

Mediation by Video
Your mediator can conduct a mediation while everyone remains at home through several applications, including Free Conference Call, Zoom, or Legaler. This can happen quickly– as soon as parties agree on a time and electronically send the mediator their mediation statements so she knows the basic outlines of the dispute.

Scheduling an In-Person Mediation
If parties insist on an in-person mediation, the time to schedule that is now.

Once courts and mediation venues re-open, scheduling will be a mad dash to secure an available time. Cases already on the court’s calendar for a future date have first priority, pushing litigants with disputes cresting now further back.

In contrast, cases with a date already on the mediator’s  calendar will get first chance for any other date if circumstances allow an earlier date or must be further delayed.

You may be feeling frustrated as you see the conflicts mounting in your email inbox. There is a solution available right now: mediation.

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.

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

Evaluating the Denied Workers Comp Claim

I recently mediated a partially denied claim where the attorney for the injured worker had no idea what the value of the future medical costs might be. It was an old dog claim, and treaters had been deposed multiple times.

When a printout provides historic data, it’s pretty easy to project future expenses. Sure, parties might disagree about the credibility of treaters’ recommendations or the likely cost of future expenses. They might debate the effect of inflation vs. drugs going generic. But parties can compromise on those things. There are ways to prepare for contingencies in a Compromise & Release. An experienced mediator can help you.

Perhaps this issue is in the NSS category. On the other hand, I see so many parties come to mediation unprepared, I’m taking the time to spell it out.

Discovery Is How You Find Out Things
The Principal Treating Physician (PTP) submitted a report recommending expensive future surgeries and treatment. The PTP was deposed—multiple times. Experts for the employer were deposed and of course said that the need for those procedures was non-industrial. Did anyone ask those experts what such a surgery or treatment might cost?

There’s This Thing Called the Internet
As an experiment, I Googled “cost of fusion surgery los angeles”.  I also Googled “how much does Medicare pay for fusion surgery los angeles.”

I didn’t spend a lot of time on this, but I did browse:
https://www.healthcarebluebook.com/page_ProcedureDetails.aspx?cftId=22&g=SpinalFusion+(lumbar)
https://www.beckersspine.com/spine/item/35786-spinal-fusion-price-in-30-largest-us-cities.html
https://health.costhelper.com/back-surgery.html

Mediation participants often bring in printouts from various websites showing medication costs.

A person might want to argue about the numbers shown on these pages. For one, it isn’t clear that Worker’s Comp wouldn’t get it cheaper. In other words, the value to the employer is different than the value to the injured worker.

Also, many injured workers have Medicare or Medi-Cal (Medicaid) coverage. This means they have lots of room to negotiate.

Informed negotiators negotiate. Uninformed ones throw out numbers without support. You could be using a number that’s too high or too low. When your position lacks credibility, the case is unlikely to settle.

Claims Organizations Have Data
Claims organizations are in the business of paying for medical treatment. Claims professionals see bills for the same procedures again and again. They set reserves based on data. Ask for that data from your client or your opponent. If you are the Applicant’s Attorney, the worst that can happen is that they refuse. That says a lot, too.

No Excuses
There’s no excuse for coming to mediation while clueless about the value of the case. You should repeatedly re-evaluate throughout the case’s pendency. Preparation and good faith negotiation can end cases earlier, saving everyone time, money and stress.

Litigation Status Reports from the Confederate States of America

THINGS ARE GOING GREAT – LET’S KEEP FIGHTING

The fall of Atlanta “is not a calamity that endangers our cause.”
Montgomery, Alabama Advertiser, September 1864

 

“No former period of the war has contained such elements of encouragement for the South as the present.”
Richmond, Virginia Examiner, February 1865, 60 days before the surrender at Appomattox

 

Many clients receive litigation status reports that parallel the unfounded optimism in the South in the final months of the U.S. Civil War. People who try to settle cases often see litigants with that same willful refusal to recognize a failing battle effort. Parties and lawyers who have been living with a case for a long time may delude themselves about their chances of winning.

 

Lawyers in the Front Line
Typically, the lawyer is the front-line soldier with the best ability to assess how things are going. The client expects reliable status reports and guidance in choosing the best course for the litigation. Corporate and insurance clients usually require reports to include an evaluation.Clients want a lawyer who believes in their case. And lawyers have a duty both to the client and the legal system to represent the client “zealously within the bounds of the law.” But sometimes lawyers prepare status reports which mislead clients to pursue expensive and futile choices.Some lawyers seem to think they are litigation superheroes who can’t be beat. Dig deeper and you will find they settle most of their cases, but at what cost? The justification that the client would have gotten a worse deal without the lawyer’s extreme tactics may not be sound.Many lawyers are like animals burrowing a tunnel who never stick out their head to see where they are. They have a playbook they think they need to follow before even considering settlement. It seems like there is always one more report, one more deposition, one more motion they have to have.Lawyers also fear telling clients the unvarnished truth about their cases because the lawyers want to keep the gig. I’ve seen cases where it is the third lawyer on the case on each side. In one instance, the lawyer told me that both prior lawyers had counseled that the opponent’s settlement proposal was reasonable; each was fired. The current lawyer said, “You and I both know those lawyers were right, and they were fired. I am going to try the case.”
Those battles at Lookout Mountain and Missionary Ridge? According to the Mobile Register, union casualties were “ten times greater than ours.” In fact Confederacy casualties numbered 6,687 to the Union’s 5,815.
 
Psychological Reasons for Unfounded Optimism
There are psychological reasons why people refuse to settle. For example, people need to justify past expenditures, known as “sunk costs.” So they feel the need to keep fighting, even when settlement is the best way to stop that drain. Another is reactive devaluation, where people refuse to credit information from the opponent which conflicts with the belief system they have created for themselves.When litigation status reports only offer a choice among battle plans, clients may not realize settlement could be their best option.

Pass the Buck to the Mediator

Mediation is a good way to get the most belligerent parties to talk about settlement. Opposing sides don’t even have to sit together. Caucus sessions take place among the mediator and representatives of a single side. Nothing said in caucus gets repeated elsewhere without the party’s permission, so caucus is a safe place to discuss the weaknesses of a case as well as its merits.The mediator is a professional neutral. Parties can get the opinion of someone who comes to the case without preconception. This is closest to what could happen in court. The mediator can ask pertinent questions and bring the parties to partial or full agreement.When parties can’t bring themselves to agree, the mediator can suggest a mediator’s proposal to close the case. This allows everyone to save face and does not damage the attorney-client relationship.If you are creating or receiving litigation status reports that don’t consider mediation, an essential part of the plan may be missing. Mediation offers a timely, cost-effective way to end whatever war you’re fighting.

Mediation Phases

Like the moon, mediation proceeds in phases. Here’s a primer on what happens when.

Phase 1: Investigation
The first phase of a mediation consists of fact gathering and defining the issues. When the parties provide exhaustive briefs, time spent on fact-finding may be minimal. We can quickly pin down which facts and issues the parties agree or disagree on.Sometimes people agree on the facts, but not how to interpret those facts. Ferreting out those disagreements is part of defining the issues. Usually case resolution will turn on fewer than five pivotal issues.As we drill down, disagreement about a fact may emerge, but a participant may be able to get the evidence to resolve the question during the mediation. Perhaps the information was not previously shared because it was not obvious this was an issue, or someone may have been playing hide-the-ball. The employer’s side in a workers compensation case should bring a copy of the indemnity and medical payment print-outs to the mediation.

If no one can access the needed information during the mediation, we can usually put that issue aside and continue to mediate to resolution. But if that piece of the puzzle is critical, we might adjourn the mediation to allow time to gather those details with a commitment to resume on a specified date.

Mediation is not the time to declare you need additional discovery. For purposes of negotiation, let’s assume that each side’s discovery efforts would produce information favorable to that party. If the case settles, no one need undertake that expense.

Phase 2: Working With The Numbers
Now that we know what we’re dealing with, it’s time to talk about value. Sometimes parties have exchanged offers and demands prior to mediation, but often they were waiting for this meeting. If everyone was together in joint session until this point, now may be the time to go into caucus, separate private meetings with the mediator.

Once in caucus, parties can be candid about the strong and weak points of their case. Nothing said in caucus will be shared with the other side unless you authorize it to be shared. Moreover, per statute, no communication between any participants made exclusively within mediation can be used in any civil forum.

Occasionally, a party has a secret reason for wanting to settle that has nothing to do with the case itself. Here are some real-life examples from my mediations that show the importance of confidentiality. An injured person planned to move to another country. A defendant company was negotiating a buy-out; they were undergoing a fiscal review and wanted to get this potential liability off the books. In each case they told me these things, but the information went no further.

While remaining neutral, the mediator gently helps each side form their offers of settlement and communicates them to the other party. Sometimes this entails restating a party’s position in a way to avoid unnecessary antagonism.

As information and offers are exchanged, parties converge on resolution. If everyone is unwilling to go one step further, and it seems resolution is close, the mediator may suggest a “mediator’s proposal.” This allows parties to settle while saving face and can reduce dissatisfaction within the attorney-client relationship.

Phase 3: Documenting the Agreement
We have a deal, and now everyone gets back together. Parties are encouraged to bring a draft agreement to the mediation. If they must return to their offices to hammer out the final document, before leaving the mediation everyone should sign a stipulation of settlement or Memorandum of Understanding which recites the agreed-upon terms.

Putting words to paper can call parties’ attention to missing details. Now is the time to consider the What If’s.

Finally, review the timeline and commitments for wrapping up the loose ends. That typically includes court approval if required and paying the mediator.

New Rules Of Professional Conduct For California Lawyers

                                                 New Considerations in Settlement and Case Management 

The California Supreme Court has approved new rules of professional conduct for attorneys licensed in California which go into effect November 1, 2018. These rules generally expand the existing settlement ethics rules. Violation of the rules can lead to a range of disciplinary actions, including disbarment. Here are the ones which affect people trying to settle a case.

Client Communication
Prior Rule 3-500 in a single sentence required lawyers to keep clients reasonably informed about significant developments. New Rule 1.4 is more detailed. Now there’s a two-way street: the lawyer must reasonably consult with the client about how to achieve the client’s goals. What’s more, the lawyer must also inform the client about what the lawyer cannot legally or ethically do even if it’s what the client expects.

Prior Rule 3-510 required lawyers to promptly communicate the specifics of a written settlement offer. A California lawyer need only pass along a spoken settlement offer if the lawyer deems the offer significant. New Rule 1.4.1 preserves this distinction.

In evaluating settlement offers or making other decisions about the representation, the Comment to new Rule 2.1 clarifies that a lawyer can initiate advice to a client on relevant, non-legal issues, such as moral, economic, social and political factors.

Diligence
Prior Rule 3-110 defined “competence” as including diligence. Now a separate Rule 1.3 prohibits a lawyer from “intentionally, repeatedly, recklessly or with gross negligence” failing to act with reasonable diligence.

New Rule 3.2 says “a lawyer shall not use means that have no substantial purpose other than to delay or prolong the proceeding or to cause needless expense.” Now an ethical rule may apply to needless court appearances and continuances and improperly postponed treatment.

Truthfulness
New Rule 4.1 prohibits lawyers from knowingly making a false statement of material fact or law to a third person, i.e., someone who is not a client, such as an opposing party or witness. A lawyer cannot knowingly incorporate or affirm the truth of someone else’s false statement. A nondisclosure is the equivalent of a lie if the lawyer makes a partially true but misleading material statement or omission. On the other hand, the Comment to the Rule clarifies that there is no affirmative duty to inform an opponent of relevant facts. Representations about case value are not statements of fact or law.California Business and Professions Code sec. 6068(d) requires lawyers to represent clients with methods which are “consistent with truth.” A lawyer who intentionally deceives the court or any party can be charged with a misdemeanor. This statute remains in effect.Everybody Who Acts For the Firm
Prior Rule 3-110 included within the duty of competence a duty to properly supervise lawyers and non-attorneys or agents. New rules 5.1, 5.2, and 5.3 expand on that and provide for vicarious liability for a breach. A subordinate lawyer has an independent duty to follow the rules, but is not responsible for following instructions when there is an arguable question of professional duty.

 

3 Ways to Evaluate Future Medical Care

Evaluating future medical care is usually the most challenging component for parties trying to settle a workers compensation claim by Compromise & Release. If your crystal ball is in the shop for repairs, try one of these methods.

Medicare Set-Aside
You don’t need a Medicare Set-Aside for claims outside the review thresholds, but claims professionals often order one to get the medical expense analysis. If the report’s only use will be for internal purposes, there is no requirement to share it. If you disagree with a report, you can provide further information to the provider and request revision. Or you can order another report from a different provider. Applicant’s counsel can request the claim professional order an MSA.

Don’t forget that the Medicare Set-Aside amount does not include amounts for co-pays, deductibles, or non-Medicare-eligible expenses.

 

 

Historic Expenses
Don’t be shy about requesting a copy of the print-out of expenditures. Spending some time with the medical expense print-out can be revealing. Total the expenses for the last two or three years and divide by the number of months being reviewed to obtain the average monthly expenditure. You can include claim administration expenses to show what the employer has been spending or omit those expenses to better reflect the actual expenses likely to be incurred post-settlement.

Review the expenses to see if some items are atypical. Is there a major surgery which will not recur? Has the injured worker stopped taking expensive opioids? Omit those items from your calculation, but include the expense for substitute treatments or medications. Conversely, if credible medical reports indicate a future large expense, the evaluation can be increased.

Revisions are not usually a problem because it’s easy to omit a past surgery from the historic total or to change the time period under review. One-time future large expenses can be added as a lump sum.

Once you have determined the average monthly medical expense, your structured settlement broker can quickly calculate the present value of future lifetime care, including an inflation factor to account for rising prices. This figure can purchase monthly payments to be paid to the injured worker or a medical expense account. The broker’s services are free, but be sure to keep that broker in the loop for future settlement discussions.

 

 

Health Insurance Premiums
Many injured workers can get health insurance for their medical expenses after workers compensation coverage stops. Some may already have that insurance. Injured workers who lack health insurance should check with a health insurance agent or www.coveredca.gov to determine their access to an appropriate policy and the cost.

Once you know the premium amount, add in a generous inflation factor plus an allowance for any co-pays and deductibles. Again, your structured settlement broker can calculate a present value, and, voilá!, you have your medical expense evaluation.

 

 

No Claim Too Difficult
Every claim can be evaluated and settled. It’s only a question of how to calculate the settlement components. Whether the disagreement is about DOI, AWW, underpayments, overpayments, scope of the industrial injury, or the cost of future medical care, we can figure it out together in mediation.