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.
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.
|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.
Find out how much you really know about mediation with this short True/False quiz.
1. Opposing parties meet together with the mediator in caucus. T/F
2. No one can use documents disclosed solely in mediation as evidence if the case does not settle. T/F
3. If parties are unable to agree on settlement terms, the mediator will decide the case based on the information presented at the mediation. T/F
4. The process of getting everyone to agree to mediation and to a specific date, time and place is called “convening.” T/F
5. Mediators start a mediation with a mediator’s proposal. T/F
6. Settlement at mediation should be documented with a settlement agreement, stipulation to settle, or memorandum of understanding. T/F
- FALSE. Opposing parties meet together with the mediator in joint session. In caucus, only one side meets with the mediator
- TRUE. Strict confidentiality laws prohibit the introduction of evidence in any civil forum of information disclosed exclusively within mediation
- FALSE. Mediators never decide any issue in a case. The mediator facilitates communication so parties can come to an agreement. The parties have complete control of whether and how a dispute resolves.
- TRUE. Sometimes convening the mediation is as big a challenge as settling the dispute.
- FALSE. The mediator’s proposal may be made near the end of the mediation, never at the beginning. When it looks like parties will not move one more inch toward settlement, and the mediator has an idea what it will take to settle the case, the mediator may propose a way to resolution. Each party responds confidentially to the mediator’s proposal. If everyone agrees, there is a settlement. If fewer than all parties agree, no one will ever know others’ responses; everyone is left at the same bargaining position as before the mediator’s proposal.
- TRUE. Settlements should be documented while everyone is together. If parties are unable to complete a settlement agreement at the mediation, which is common, the main areas of agreement should be documented in a binding stipulation or MOU, memorandum of understanding.
HOW DID YOU DO?
6 correct answers- Mediation Superstar
4-5 correct answers- You’ve got the right idea. Just brush up on the nuances
2-3 correct answers – Looks like you’ve done some reading, but are still pretty unclear on the particulars. Get more information here.
0-1 correct answers- Hey dude/girl, have you ever even been to a mediation? Please call me, and I’ll talk you through how it works.
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:
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.
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.
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.
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.
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.
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?
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.
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.
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.
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.
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.
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.
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?