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The Mediator’s Role: Achieving Mediation Value for Every Participant

April 27, 2017

No mediator can resolve every dispute.  There are innumerable factors, almost all beyond the control of any mediator, that must each successfully align (or be aligned) to have even the possibility of resolution at any given mediation.

If even one participant, or their counsel, comes unprepared for or simply uninterested in resolution of a particular dispute, unless the mediator can literally “cure” such inbred negative traits during the limited time typically reserved for such matters, no resolution will be possible.

Or, if any participant simply desires “their day in court” or to “make a point”, no resolution can be possible.  Reasons for such a position often are totally unrelated to that particular dispute.

And, frankly, where strong differences of valid, informed opinions are simply not reconcilable by compromise, often solely for practical reasons, likely a trial of the issues may be the best ultimate choice, for everyone.  But, see, “Why Mediate When Mediation is a Waste of Time ?”, January 2, 2012

However, even in these “impossible” disputes, in jurisdictions that support mandatory mediation, mediation will almost always be ordered, will very likely fail, and then be followed by the inevitable trial  in which one side will unquestionably lose.

And, some of these losing parties (and even some counsel) will end disappointed in the process of mediation (and trial).

And, a few will “blame” (among others) their mediator!

Accordingly, every mediator should and MUST strive to insure that in every mediation each mediating participant and their counsel receive “value” for their mediation effort and cost in every mediation!  it is critical to the future success of the entire process of mediation; it is even more critical to the future of that mediator!

Mediation participants seek resolution.  If resolution is not obtained, you can bet that mediator will not be asked to try again UNLESS the parties can perceive and understand why that resolution was simply not possible this time (in spite of the mediator) OR resolution progress never made previously or information never learned before was obtained at  this mediation BECAUSE of the mediator.

Parties on both sides come to every mediation biased with only THEIR perception of the facts, the law and their firm belief of their success in a future trial.  One side is wrong.

Often, despite literally years of litigation effort, either there has been no demand for settlement/resolution by the claimant or no offer by any defendant or a huge irreconcilable gulf between the opposing parties settlement positions.

It thus becomes imperative for every mediator who cannot achieve resolution at mediation  to 1) make observable progress toward a more possible later resolution AND  2) educate the participants regarding  the objective actual facts, the actual law and understanding an objectively fair range of likely outcomes of their dispute along with alternatives toward resolution then or later during the process.  See, “Mediation Process:  (Berman) Make Your Mediator Work Harder”,  August 22, 2011

Similar to all counsel’s effort required for success for both sides, achieving mediation value by the mediator for the participants begins with the advance preparation of and by the mediator.

It is critical to the mediator to gain as much information about the parties, their counsel, their dispute, and the law,well in advance of the mediation, as possible.  See, “Your All-Important Pre-Mediation Summary:  Seven Other Valuable Uses!”, March 23, 2015

The disadvantage of a mediator is that no mediator can ever know the details of any dispute as well as the participating counsel who have often spent years in learning and preparing their client’s legal positions.  And, of course, their parties have lived the events so the facts are even more known to them, and worse, ingrained with bias in their minds.

The advantage that the mediator has, however, is that, once the legal and factual differences are revealed, examined, and considered together, without bias,  the truly neutral mediator can avoid the parties’ unavoidable trap of advocacy, bias and emotion and instead, seek to guide the parties to reasonably achievable goals, not simply their desired ones.

There is a reason mediators must be truly neutral; they can thereby best effectively emulate the ultimate trier of the matter in looking for future trial outcomes if  parties voluntary resolution cannot be achieved!

It begins by focusing the parties’ counsel on their own case rapidly approaching mediation.  Rarely does any parties’ counsel have the luxury of only one cause.  Sometimes simply directing counsel to fully and timely reviewing their own potential elements of proof and potential likely outcomes (if tried at mediation), can start the resolution ball rolling.

As mediation begins, learning and then understanding the true (sometimes unspoken) issues between the parties and just what would constitute justice for either or all sides, is critical.  Many disputes get lost in the forest as each tree is being considered!

Thinking “outside the box” is too often not even considered by participants or their counsel in the rigorous context of legal disputes.  Mediators have so much more latitude to seek and even suggest alternatives, including some that are not even within the legal context of a dispute, that can quickly close the most hotly disputed matters.

And, of course, many mediators are chosen because they, previously, were quite experienced in similar disputes and even litigation techniques and can often have much to offer all sides by way of suggestions on how to bridge recalcitrant positions.  Both sides must leave objectively knowing their weaknesses and strengths as seen through the eyes of a neutral.

At the very least, good mediators can assist you find the best way to negotiate to your side’s believed-best position more effectively.  It is what they do!

And, then, a critical next value of your mediator is in helping the parties close the initial gaps in early negotiations.  If your mediator cannot move the parties closer to a better-reasoned middle position, it often becomes impossible to reach resolution.

However, the greatest mediator value may be solely in HOW they move the parties toward each other.  In the end,  all mediation progress must be the idea of the parties.  See, “My Opinion:  Good Mediators Lead Best From the Back of the Room.”, September 30, 2014

The ultimate Mediator’s “mediation value” goal, if resolution is not possible, therefore, is to have the participants and their counsel leave mediation feeling that 1) the opposition now fully understands the strengths of  the factual and legal basis of our claim/defense 2) the mediator assisted with moving the opposing resolution positions much closer than would have been accomplished without him/her 3) both sides learned factual, legal and tactical information they would never have obtained without mediation 4) both sides obtained learned alternatives to allow both to continue preparation for trial, while continuing to consider reasonable alternatives for resolution, and 5) any one of the first four factors alone were worth every dime of the parties costs of preparation for and participation in this mediation.

If, after any “failed” mediation, you can appreciate any one of  these values gained by your mediation and your mediator, that mediation was actually quite successful!

And, by the way, that was your mediator’s job.

Dan, from Orlando/Winter Park, Florida.

Personal Injury Mediation: The Importance of Accurate Special Damage Information: Part II: Loss of Earnings/Capacity

February 28, 2017

Economic damages or “special” damages consist of some of the easiest-proven and most understandable evidence for any jury’s consideration in any personal injury case-verdict.  Thus, accuracy and available proof is critical for negotiation and mediation.

Further, most civil trial lawyers on both sides of the dispute, believe there is a direct, positive relationship between the amount of these “tangible” damages and the essentially unlimited, but more difficult to prove, ‘intangible’ damages, i.e,  pain, suffering, loss of the ability to enjoy life, etc.,  that are both part of every jury’s consideration in reaching their total verdict in every personal injury case.

In Part I, we discussed the mediation/negotiation importance of complete and accurate accounting for medical expenses (and included briefly their related topic of legal liens regarding such expenses, even if only temporarily paid by other sources), See, Personal Injury Mediation:  The Importance of Accurate Special Damage Information:  Medical Expense and Liens,  December 19, 2016.

This Part II,  now seeks to discuss the equal importance of accurate accounting and mediation/negotiation use of another important tangible damage for any injured claimant:   loss of income, past and future

Again, as any juror can easily personally relate to anyone’s loss of income or monies due to a personal injury, too often this critical, but easy, element of damage is either over-looked, under-estimated or under-utilized.

And, it should not be.

The insurance industry, who typically is the ONLY entity negotiating a total personal injury claim, puts far greater weight on any tangible damages in their far-ranging formulas used to evaluate the potential settlement value of personal injury claims than any claimant’s counsel!   i.e., Have you ever heard of the “three times specials” settlement evaluation system?

Ironically, most injured parties (and most juries) consider the immediate loss of monies as their single greatest fear. And, if fully considered,  like medical expense, proof of loss of income due to any accident is relatively easy AND ALWAYS available (at least for discussion) in some amount in every injury case!

For the hourly employed, simply proving the person’s PAST loss of time and their hourly rate at the time of loss, can be successfully introduced into evidence by the injured parties own testimony, alone.  (Others may wish to consider supplemental/alternative evidence in support or as a better strategy, but that is not the point of this article.)

For others, salaried, self-employed, or even sales/incentive paid, once the hourly equivalent rate is established by simple extrapolation of earnings comparisons, the PAST earnings lost can also be quite easily computed for any jury’s consideration.  (These types of earnings, also, open collateral trial issues to be later considered, but for mediation simply are too significant to ignore.)

However, the first step to take in being able to accurately use this understandable loss is for the injured party to literally keep a log/chart of it!  Since the issue is usually not the central theme of most counsel’s  attention and most clients are focused on overcoming their injuries, usually little thought is given to being able to accurately explain each hour, day or week of loss.

Keeping a log and later being able to demonstrate on a critical calendar jury-exhibit, a calendar of events on how the time was lost over the likely years between an injury and a mediation (or even more importantly, a trial is critical. (Also a great exhibit to use for the intangible damage of loss of enjoyment to life!)

Think of it:  It is not only the first day in the emergency room or at home for the day where anyone’s loss of time (and their loss of enjoyment of life!) occurs, but rather almost daily until their case is resolved.

And in almost every activity now required that would not have been “but for” the unwanted accident and personal injury.

Every return to any hospital, every doctor’s appointment, every therapy visit, every home exercise, every day ‘when you just couldn’t go to work”, needs to be recorded!  (And, additionally recording appointment efforts are critical in showing why sometimes the earliest next appointment is not always the injured party’s choice.  i.e. Gaps in treatment?)

In short, it is these minor details timely recorded as they actualy occur that later is easily recounted from a demonstrative chart-exhibit that make more believable the entire living experience of any injured party.

And, it can also become invaluable in your own potential verdict evaluation;  See, “Mediation Negotiation:  One Reliable Method to Evaluate Personal Injury Damages”, December 13, 2013

What else is often missed?

How many times have you heard:  “He/She doesn’t have any earnings loss…”

Even more forgotten (maybe misunderstood or underappreciated?), particularly if an injured party is “unemployed” at the time of injury, OR, a student, a housewife OR is partially or even fully compensated by other sources, i.e. workers compensation, accumulated leave or just a friendly employer, is the always powerful, loss of the ability to earn.  And, note: this damage is just as important for the past losses as the future!

And, every injured person has an earnings loss; even it may only be EASILY demonstrated by its loss of the ability to have their time loss measured at the minimum wage!

Florida law recognizes that time, “Earnings/Working Time”, has a value whether an individual is paid for their time by an hourly rate, a salary, their productivity or by any other agreed measure of the value on any worker’s time.  See, 501.2, c., Florida Standard Jury Instructions (2017).

But, by far the most widely missed concept is, “Loss of Ability to Earn”, that even if someone is not working at the time, by choice (student/housewife), by necessity (i.e. child-care), or even retirement, that person’s time still has value that can be and at least should be a topic of discussion and/or consideration.

Can anyone honestly “forget” the value of a mother’s time or a housewife’s services or even the retired neighbor who volunteers a valuable service that otherwise would require a monetary billing.  What replaces the services of those persons while they recover?  Would any retired member of any jury believe their time loss has no value?  If so, there are a multitude of articles and even experts who can clearly submit almost irrefutable evidence on the subject.

And, the same is even more true for any Future loss with the proper supporting personal, medical evidence and likely expert support and testimony.  The future can be a long time; and even a minimum injury will always become more impactful with time.

Again, if properly documented and supported, any future loss, with its impact being felt over many years in the future, is simply too much to under-appreciate, much less under-use…

for mediation!  (Remember the point of these articles.)

The beauty of mediation is that it is only one tool in the litigator’ bag.  And, mediation is a great place to test the ‘lawyering” of your case for any trial that mediation does not permit you to avoid.

When preparing for any ultimate trial, the better lawyers give much thought not only to what evidence they have, but whether of not to use it.

At mediation, you have the best of both worlds; if the accurate portrayal of your damage element is seriously (and justifiably?) questioned, what a great “practice” for your final show, if it ever becomes necessary.

But, if you don’t prepare reliable mediation evidence, in advance, to use for negotiation and in mediation, you will never even have the chance to use/test this important tool.  And, it begins simply with accuracy and documentation.

Give it a try.  There is little to lose and much to gain from accurate special damage information that is so useful in so many ways.

Dan, from Kissimmee, Florida

 

Personal Injury Mediation: The Importance of Accurate Special Damage Information: Part I: Medical Expense and Liens

December 19, 2016

In the practice of personal injury litigation, fully discovering, accurately documenting and then timely sharing with the opposition the relevant “special damages” of  an injured party for purposes of claim resolution without trial, including by mediation,  is one of the most commonly misunderstood absolute duties for claimants and their attorneys seeking redress.

Honestly, it should not be such an issue.  But, because of the inherent differences of resolution emphasis by the legal industries representing the opposing sides, it continues to remain one of the most common, if not the most troublesome, for mediators and others who seek the voluntary settlement, not trial, for personal injury dispute resolution.

In Florida, and in most jurisdictions, personal injury  “special damages” commonly include those matters that can be relatively easily gathered, tabulated, explained and objectively understood:  related medical expense and loss of income or time value caused by  the alleged relevant injury.

Accordingly, the cornerstone of any risk analysis or claim evaluation by any claimant counsel or any defendant of any personal injury claim always begins with and relies totally upon the complete and accurate collected information on “special  damages”.

I have written upon several other recommended preparations for personal injury matters mediation: i.e.,  See, “The ‘Surgical Recommendation Letter’ Issue”, April 26, 2012;   “Your All-Important Pre-Mediation Summary:  Seven Other Valuable Uses!”,  March 23, 2016.  This one may be even more important.

In this first “Special Damages” offering, Part I, we will examine the collection, organizing and timely sharing of accurate and complete medical history, medical billing and resultant medical liens.

And, we will try to explain why it is so important.

The Medical History:  The critical first step.

First, representatives of any injured claimant-plaintiff, at their very first encounter, must initiate a medical care history chart; a careful, accurate and detailed chronological medical treatment history of each new client.  And, I mean one that can be and IS easily updated with the collection of every additional piece of  related information thereafter obtained from any source literally to the day of your mediation or trial.

It is imperative to aggressively collect and chart the date, name, address and telephone number of every entity, and if possible, every individual health-care provider from whom the client sought medical care of any kind for any injury they believe is related to the their claim  Using an ongoing computer table-chart allows correction for the common errors of memory and insertions of additions and modifications as learned later directly from medical records and copies of the billings themselves thereafter obtained.

This chronology-work-sheet should then become the source of  many of your ultimate chronology centerpieces for your exhibits for mediation and even trial.

This critical administrative tool should also be used to collect as much similar information for the entire medical history of the client PRIOR to their injury for which you are retained.  And, should also include related information regarding other prior injuries or even “incidents” in which the client was involved in accidents where no claim was even made.

(Trust me, your opposition will have and use this UNRELATED information against you if you do not remove this weapon by advance full disclosure!)

Related Medical Bills Chart:  The second step.

Simply stated, many believe the single most important factor of any personal injury matter is the cost/billing for medical treatment legally related to the alleged injury.  This is the one damage “element” that all attorneys believe is most easily understood (sometimes misunderstood?) by juries who are asked to evaluate the TOTAL monetary damages of any injured claimant.

It will thus be critical to obtain COMPLETE medical bills of each healthcare provider who rendered healthcare to the injured client.  (And, please,(even  if the client elects to go to a provider with whom they are already treating, i..e, the primary care physician) get a complete bill, not one that is “redacted’ by someone else!)

If an attorney is lucky, they will have skilled staff charting much of this information.  But, beware, your assistants are not the one who will be representing the client at mediation, much less trial.  Accordingly, take the time to personally review these medical charts and billing information as closely as you KNOW the defense counsel will!

It will also be important to know exactly to whom your client is still indebted!

Using the same chronological medical history you first created, each medical bill can then be broken down by payments by the injured party, payments by each known medical insurer (first party and even third-party) and each and every governmental entity who might be contributing.  Even “adjustments”, voluntary and contractual, should be noted to be able to compare any final bill due.

Medical (and other) Liens:  the third important chart. (or, at least a dedicated column in your Billing chart.)

It is imperative claimant’s counsel constantly seek out all those who have alleged related bills; it is doubly important, however, you obtain balances of all of those who still seek any remaining payment due from any proposed settlement before an injured client receives any net funds.

Some balances are simply bills that remain unpaid.  Other balances due, some, called “liens”, have  immediate legal standing of priority of collection by operation of law (as opposed to requiring litigation.).

Such common “legal liens” include some hospitals and usually those who routinely pay for medical billing without requiring a fault-finding:  i.e., automobile medical payments, premises medical payments, health insurers, worker’s compensation insurers, and governmental payments such as Veteran’s Care, Medicaid and Medicare.

But beware of professional lien collection entities who send “lien” billing to you upon your request for any known liens.  Most such collection agencies  (including governmental) are simply conduits from the entity claiming the lien and frankly do not review the actual billing for much accuracy!  It is all too common to find included charges pre-dating and even totally causally unrelated billing within the claimed lien.

And, also remember, many governmental entities do not permit “balance billing”.  In simple language, if their benefits are used in payment of a bill, no balance is permitted to be passed on to the patient!  (note: this is a matter of expertise and specifics, but i.e., Medicare and Worker’s Compensation are ones that commonly, if accepted for any payment, will not permit ANY balance billing.)

Now you have the information.  Why did you bother?

There are major differences in how claimant’s counsel and  defense counsel process and use this seemingly same information in their resolution-evaluation process. Knowing some of these distinct differences may mean the difference between your success and failure at your next personal injury mediation.

For example, many claimant’s counsel generally believe the higher the total bills, the greater their opportunity for a larger total dollar recovery for all other damages, including for so-called “intangible” damages.  Many defense professionals will agree; but only to truly related billing.

But all will scrutinize (even fly speck) every bill for every administrative mistake you make.  And, worse, use it against your client to defeat every element of their claim.

Further, common fact questions for every defense counsel will always include proof of the direct relationship of the billing to the alleged negligent injury and the reasonableness of every billing charge compared  to the average in the community.

Thus the accuracy of each of these sub-elements is critical to credibility for acceptance, not only to future juries, but to the opposition being asked for voluntary compensation by settlement.

Although greater injuries, of course, normally receive greater medical billings, if any individual bill’s relationship or amount is subject to question, particularly if of questionable objective reasonableness, such questions can cause the defense to encourage a jury to reject the entire injury rather than only the bill!

And, proven unrelated care is usually considered “fraud” by the defense.  Juries, at best, will question such presentations.

All of these points simply emphasize careful preparation.  If your opposition has better knowledge and more accurate information than you do, you will lose not only credibility at mediation (and all negotiation), you likely will be unable to reach resolution because each side will be using different facts for their separate evaluations.  It is THAT important.

( Article Cross-check:  If you do not believe all of this data collection and charting effort is important, remember this article the next time at mediation your opposing attorney publicly points out any one of your billing or lien errors: i.e., billing pre-dating your client’s injury or charges totally unrelated to any relevant injury, or duplicate charges or illegal balance billings or any billing extremely out of the community average.  Trust me, it will be embarrassing to you, upsetting to your client and an unnecessary edge to your opponent!)

It is of course, impossible in this restricted article to “teach” every part and parcel of the importance of this critical part of any claimant’s negotiation preparation and for use at mediation.  Hopefully, however, you see the point:  it is critical for any chance of success at mediation to discover, document and then timely, fully and accurately share this medical billing/lien special damage information well-prior to mediation for your best opportunity of success.

You will need it for your client.  You will need it for your trial.  You MUST have it and timely share it for success in mediation.

I know it works.  I see the success (and failures) every day.  Give these ideas a try to up your own success ratio next year!

Merry Christmas 2016.  Happy New Year 2017.

Dan, from Winter Park-Orlando, Florida.

Personal Injury Mediation: Success for the Defense? Get Your Real Money on the Table Early.

November 17, 2016

Defense Secret:  At mediation, the Defense “knows” exactly what they intend to pay, that day, and how.   They are risk evaluation specialists, are almost always better prepared for mediation than their claimant-opponents and usually possess and have considered more information about the claim than the Plaintiff/Claimant’s side.

And, (rightly or wrongly) they care little about their opposing Claimant’s initial demand, their subsequent negotiation positions, their pace in negotiation or even their purported “final offer”.

Defense mystery:  If the above is so, just why does the Defense so frequently take such a tortious route to put their really best offer on the table?  (If they will!)

Last month, I identified the most repetitive mediation negotiation error of the Claimant:  Excessive initial “demands”.  See, “Mediation Negotiation:  Want a Home Run?  First, Find the Ballpark”, October 27, 2016.

This month, I want to identify an equally similar criticism for the Defense:  Protracted impossible-to-accept offers that injure negotiation before it can even begin.

Too many of today’s mediation defense negotiators are “old school”.  They live in the past.  i.e., Because a favorite negotiation tactic (i.e.  “wear ’em down”) worked for them “for years”, it will always work.  Because they have the most money and lots of other cases to spread their company’s risks they can  negotiate any way they wish in any case they wish.

They are wrong.  Times have changed.  And, if defendants now wish to maximize their mediation opportunities to actually resolve a volume of matters to reduce risk, cost and wasted time at trial, they, too, will have to change their dated methods of negotiation.  I have hinted at this before.  See, “Mediation Negotiation:  Increase Your Pace For Greater Success”, March 10, 2016 and “The ‘Principled’ Demand or Counter-Offer:  A Better Method of Negotiation”, June 7, 2016.

Dribbling out unrealistic offers incapable of acceptance for hours before finally arriving late in the day at an offer that “can” be considered no longer works.  Scare tactics and constant trial risk emphasis with each meager offer no longer works.   Claimants no longer fear litigation or even the courtroom. The traditional unequal economic and risk taking ability of large insurance carriers versus an individual claimant is a thing of the past.  Claimants are no longer accepting peanuts and they are not quitting when offered them.

Frankly, they don’t have to.

The claimant’s lawyer is now virtually “free” and even risk-free due to the modern interpretation of the ethics of the contingency fee representation.  Claimant’s lawyers can now almost totally protect their clients from adverse verdicts with insurance.  Their lawyers now fully fund their claimant’s litigation.  And the billboards shout out the significant dollars that are available with these free lawyers and a litigation risk that has no downside; even further in a market glutted with lawyers seeking to represent them, particularly if a claimant is significantly injured.

In short, David can now be just as big as Goliath.  Times have changed.

But the defense still has one distinct advantage:  They still hold the checkbook that can resolve any claim.  And, reasonable money, paid appropriately, can settle ANY case.

“Reasonable money” remains the sole decision of any Defendant.

“Paid Appropriately”, however, is the point of this discussion.  How and when to pay is the domain for the Mediator.  It is time for the defense to remember some old cliché’s that are now again so terribly important to modern personal injury negotiation.

Do you recall:  “A bird in the hand is worth TWO in the bush”?  How about “A stitch in TIME is worth NINE”.  Or, “Strike while the iron is hot”?  Too many “old school” proponents forget these time-honored “lay-people” observations about the time-value of money.

And, the Defense is missing the single most OTHER significant advantage they retain:  their intended negotiation target is the uninformed, novice claimant.  The claimant seeks only “fair and timely” compensation.  They have no other goals and seek no others until they become the latest unwilling pawns in the industry-wide generic struggle between their attorneys and some insurance company.

In simple terms, most personal injury clients have no (and want no) experience in lawyers, litigation, or negotiation and certainly not in the evaluation of their own claims.  However, they do clearly know what “money in hand” is (at that moment) worth to THEM.

And here is where the defense most commonly fails:  they simply wait too long to offer to pay a valid claim “fairly”.

They undoubtedly have their reasons; perhaps a subject for another day.

However, while the defense delays payment of even admitted claims, that initially unsophisticated claimant is now learning.  They are getting to know/trust their lawyer, learning about the process of litigation, obtaining evaluations of their claims (often from the wrong sources) and becoming disgusted with objectively poor negotiation practices.  (Remember: they no longer fear any adverse outcome by trial!)

And, simple anger at being treated “unfairly” raises the stakes and hardens the claimant to continue a process they would normally far prefer to avoid.  And, further delay merely increases the hardening.

Even at mediation, with delays in finally arriving (hopefully) at minimally acceptable offers the time delays alone often lose the attention of the most important advocate for resolution in the “other room”: the claimant!

In the United States, consumers either pay the asking price or they simply pass.  No one “negotiates” for a hamburger, new  shoes or a dress against the tag price!  And, for certain, no one would even consider offering pennies for it.  Other than for automobiles the average American consumer has never negotiated for anything in their life!

Thus, such lay-consumers find the process of others making offers to them for their personal injury that are patently ridiculous, i.e. less than their (reasonable) medical bills incurred, as simply insulting.  And, lay people do not take insults well.

It may be acceptable to “insult” a seasoned lawyer with a low-ball offer; it is a huge mistake to take the same approach to an unsophisticated (and injured) claimant.

Again, I suggest that the best way to use that unsophisticated claimant to the best advantage is to use strong early and “fair” offers to get the interest of the claimant (over the objections of even their attorney), and by continuing such “fairness” to actually turn the claimant to your position.

As soon as any offer, after attorneys fees and repayable costs, actually places money to be gained to the SOLE choice to the claimant, the defense begins to obtain the edge.  And, the longer the claimant has to consider just how ‘their’ portion of each offer might be spent, today, for something better (and less stressful) than litigation, the stronger that edge-advantage becomes.

Conversely, the less the time to consider a “finally possible” offer and the more insulting the day, the less effect, even a fair offer, has.

I realize there are many existing arguments about a slower pace to defense offers.  But, I submit they are rapidly losing favor and likely only realistically still possible due to increasing skills of mediators to keep people engaged.  If you want to test my premise, try sending a similar initial offer by mail!

I do not doubt, also, that occasionally, ridiculous offers and tactics succeed.  Unfortunately, such matters are usually the result of uninformed counsel, or desperate claimants; and many result in further litigation over such matters.

However, ask any mediator:  early, significant and fair offers, more frequently arrive at resolution at mediation than any other single contributing tactic.

And, it is only the Defense, this time, that can use this invaluable negotiation advantage.

Now, will they?

Dan, from Clearwater, Florida

Mediation Negotiation: Want a Home run? First, Find the Ballpark!

October 27, 2016

The 2016 World Series* began this week!

(*World Series time always brings the overuse of common baseball terms (and clichés).

So, hold your caps* and indulge me:

The most frequent negotiation error* made by claimants in mediation is in their initial ‘demand’ for settlement.    This error invariably then causes every defendant to bobble their own play* with their initial offer of a “low-ball”*.    Any such foul* beginning, unless quickly cured, rarely allows either side*the final home run* of resolution (groan).

(OK, now that I have your attention…)

Mediator Secret:  Every mediator knows that to have any chance of success at mediation they must move the opposing parties initial negotiation positions close enough to each other to even allow the final efforts of reasoned final compromise.  And, such a goal must be achieved early!

Yet, no matter how much is spoken or written on claim negotiation,   See, i.e., Putting the ‘For Sale’ Price on your Horse”, January 31, 2011, “Consider the Real Estate Market When Planning Your Next Mediation Negotiation”, December 22,2010 or  “Mediation Negotiation:  One Reliable Method of Evaluating Personal Injury Damages”, December 18, 2013.  it is presently entirely too predictable that whether in a demand package, informal negotiation or in formal mediation, and without regard to the subject in dollar litigation, most claimant’s opening demand will invariably be excessive.  By excessive, I mean, that the opposition (and practically every other objective, thinking person on the planet) KNOWS that any alternative judicial outcome in the dispute will, likely and reasonably, be far less than their initial demand!

The predictable response to this excessive demand is that the opposition’s initial offer will thus invariably be totally and completely inadequate!   By inadequate, I mean every objective bystander equally knows such an initial response could not possibly be accepted by the claimant!

In short?  Too many mediating parties invariably begin their compromise negotiation efforts not even “in the ballpark” for any reasonable negotiation.  And, thus, it becomes the critical role of the mediator to find means to close-this-gap.

And, for any mediator to assist mediating parties to resolution with this all-too-common beginning , they first must find novel ways to get these always widely divergent initial mediation positions much closer to have any reasonable opportunity for a voluntary mutual agreement.

And, quickly, before the participants lost patience, hope and thus, interest.  See, “Is ‘Fear of Failure’ Ruining Your Negotiations?”, December 10, 2012.

This is not an easy task.  Many mediating participants resent being led.  See, “My Opinion:  Good Mediators Lead Best from the Back of the Room”, September 30, 2014  Thus, the better and clearer the explanation by the mediator for his/her suggestions, the easier the task.

However, until recently, I had no metaphor to help explain this initial and critical early gap-closing phenomena.  Or more importantly, why it was so critical to ultimate mediation negotiation success.

Recently, however, while preparing for a complex mediation, I found an article by the excellent Florida/Alabama mediator,  Rod Max, which likened this early closing-the-gap effort of the mediator to baseball.   ( I doubt Rod originated the baseball metaphor in mediation, but I certainly give him the credit for reminding me of this great “visual aid”.)

In short, and using the baseball metaphor, “you can never hit any home run of resolution in mediation without first getting all of the players at least to, and then, into the same ball park”.

In essence, before the negotiation game can even begin, much less have any chance of success, all of the players must agree just where their game will be played.

If a reasonable range of negotiation is not quickly found, often the parties’ exhaustion from first having to “build the park” simply prevents the rest of the final negotiation game to even get started!

Therefore, rather than having to first build a ballpark to play the negotiation game, why not FIRST choose a mutually acceptable park that all already know is a a fair one in which to begin your negotiations?.

If claimants have done their pretrial evaluation homework and know the true reasonable verdict range of their claim, they simply must accept that their opposition knows the same reasonable range as well.  Each side simply must respect, even without agreement, the experience and opinions of the opposing professionals.

For greater credibility and success, therefore, Claimants must consider NOT demanding the Taj Mahal for their ballpark, but rather instead, offering an already known and commonly accepted ballpark as the superior place to  begin to seek final negotiation success.

Of course, Defendants need not ALWAYS retaliate to a too-high demand with a too-low offer.  See, “Mediation Negotiation:  The Defense’s Opening Offer (assuming resolution is your goal)”, September 6, 2016.

And, for example bracketing, by one or both sides, and early can be an excellent means to move quickly to a more acceptable range of negotiation.  See, “Bracket Offers:  The Good, The Bad, The Ugly”, October 24, 2011.

Both sides have much to gain from closing the gap.  And, it can be achieved by the first, most reasonable party.  But old habits are hard to change and excessive demands have been the norm for far too long.

In return for this initial reasonableness from either side, and early, however, it then becomes highly likely that the remaining negotiations should also become much more meaningful, efficient and significant to compromise.  See, “The “Principled” Demand or Counter-Offer:  A Better Method of Negotiation”, June 7, 2016.

Whether instituted first by the Claimant or the Defendant, the earlier the mutually acceptable ballpark can found, however, the earlier your Mediator can better help you identify your bases, obtain the first good pitch and finally, allow the home run of resolution!

Simply beginning your negotiation correctly can become a win-win* for everyone.

Thanks, Rod.

Dan, from Ormond By the Sea, Florida.

 

Mediation: A Great Place for a Return to Professionalism and Civility

September 29, 2016

At the highest level of athletic competition, the Olympics and even in modern professional sports, with millions of dollars and/or entire lives and careers in play, as each hard-fought contest is finished, if you look closely, you will almost always find practically every previously opposing athlete interacting, congratulating and sometimes embracing, their former competition.

True professional athletes have always understood the difference between the contest and the contestants.  There will always be many contests; but there will also be but a few such qualified contestants.  Thus, the very best athletic contestants understand that their lifetime professional reputation, and their future personal and economic relationship with other similar contestants, are  of far greater value than any single contest outcome.

It used to be that way among our legal profession.

Even in the highly charged trial arena, criminal or civil, following the most difficult trial, most trial counsel for both sides in the not-so-distant past would routinely gather socially in mutual professional respect not for any particular outcome, but for their individual professional competence and efforts on behalf of the law and their respective clients.   They celebrated their profession, their experience-earned skills and the time-honored process of justice that permitted the contest, not any particular one-time outcome.

They also accepted that in the very next contest, that outcome could be a total reverse of this one.

Accordingly it was the contestants personal honor and integrity and their professional skill that remained the subject of their primary celebration regardless of any single contest’s outcome.

And, that integrity of the profession and it’s public perception was of a greater goal than any one contest or one professional.

The  American Bar, many of our state bars and numerous of our member-special associations such as the American Board of Trial Advocates (ABOTA),  are increasingly examining a growing issue in our profession: the perceived worsening trend of the lack of civility, cooperation, common courtesy and generally diminished professionalism among some of its members.

Their greater fear:  the Public’s loss of confidence in our entire legal system due simply to its loss of respect for many of its professionals.

This observed decline in professional relationships among peers reportedly found its original roots primarily in the trial arena and appears to many to be getting worse.   Some have related the problem to pure lawyer numbers and the increasing economic pressures upon the modern lawyer to “succeed”.  And, particularly to succeed in the American trial advocacy system in which “winning” seems to be so heavily rewarded in so many ways, with justice always seemingly coming in a distant second.

However, lately and doubly troubling, some believe this “polarization of advocacy” is now creeping into other non-trial areas of the practice of law.  “Prevailing at all cost” seems to be a new all-too-common theme for too many lawyers who increasingly have forgotten the greater societal benefits of a more gentile and trusted practice of law.

Having identified the growing problem, even with some aggressive Bar work toward a solution, too many of our members simply seem not to have considered just what such a problem means, or worse, can mean in the future.

And, too many of those same members are likely leading younger lawyers, directly or indirectly, on a similar downward path.

Perhaps one easy place to begin to objectively evaluate the present and future effects of this failure of professionalism and to really start to practice a RETURN to professionalism and civility, may be in the setting of mediation.

Mediation, the antithesis of advocacy and rather requiring continuing professionalism and cooperation for any real chance of success, is clearly the perfect place to at least begin any lawyer’s return to the higher calling of our legal profession.

Simply put, mediation offers immediate rewards for those who practice their professionalism in this arena and obvious failure to those who do not.

One of the clear hallmarks of those who are repetitively successful in mediation is their credibility, civility and cooperation before, during and even after the mediation process.  And, another all-too-commonality arises between a lack of those same qualities and mediation failure.

Coincidence?  I think not.

Mediation participants remain clearly advocates of their own position.  However, where trial participation seems to reward only one side to the total exclusion of the other, mediation  usually rewards both sides for their  mutual civility, trust and cooperation.   After all, there would be no voluntary resolution unless BOTH sides found it to be in their best MUTUAL interest.

But any dual-resolution success usually comes only to those participants who cooperate and openly share with their opposition, who timely perform what they say they will perform and where trust has been pre-established by similar prior practices in prior similar settings.

And, in mediation, where trust is so critical, a lawyer’s credibility is like money in the bank.  See,  “Learning Mediation Negotiation Technique:  First, Personal and Professional Credibility”, August 23, 2012 and  “Work on Your Personal Credibility to Improve Your Negotiation Success”,  March 9, 2011.

In mediation, there is no judge or jury to “con” into an outcome that may not seem objectively fair.  It is your opposition who must agree with the evidence of the claimant or the defendant and they are not easily misled.

And, no one needs to hide the ball from the Mediator assisting the parties; it is the mediator who must know, objectively, the strengths and weaknesses of competing positions in order to work mutually for BOTH sides to find that perfect common ground for resolution.

And there are other differences that permit/require lawyers to “take the high road” in mediation.

In mediation, timely, knowledgable  concessions to the opposition of obvious position weaknesses is a positive mediation tactic toward resolution, not a negative one; further, compromise is a true art of mediation negotiation, not a failure of advocacy.

In mediation, honestly dealing with actual facts, not rhetoric, is also mandatory for success.  the only one listening to your argument/persuasion is your opposition and they already know fact from rhetoric better than any judge or jury.  Thus, truth and candor is always more rewarded in mediation than advocacy.

In short, mediating participants who can be trusted and believed as they work to achieve a goal that works for both sides are far more rewarded than those who cannot!  There are simply no rewards in mediation for toughness or trickery or gamesmanship.  Or, any of the other failures of common courtesies between parties and counsel.

Therefore, what better place to begin a profession-wide return to the professionalism of civility, cooperation and candor, than Mediation?

At best, these professionalism traits so well rewarded in mediation will be equally rewarded in future trial or in simple everyday dealings with others of our profession.  At worst, those who choose not to practice in such a manner will be more easily identified and specifically shunned.

And the remainder-majority will be meeting socially, again, to mutually celebrate their return to professionalism

Begin with your next mediation?  I am betting it will work. For you and our profession.

Dan, from Crystal River, Florida.

Mediation: One Sample for a Perfect Defendant’s Counsel Opening Statement?

July 20, 2016

Earlier this year, I presented my proposal for one template for Plaintiff’s counsel’s  opening statement in a personal injury mediation.  See,  “Mediation:  One Sample for a Perfect Plaintiff’s Counsel Opening Statement?”, April 15, 2016.

An apparently popular read, I now propose my sequel for the “perfect” opening statement in the same personal injury-type matter from the perspective of the Defense counsel. 

Caveat:  Fundamental differences exist between Defense Counsel and Plaintiff Counsel in every mediation;

Plaintiffs and Plaintiff’s Counsel seek a final resolution at EVERY mediation; that is what a one-time client universally seeks and how Plaintiff counsel earn their fee.  Defense Counsel earn their hourly fees solely by ending every mediation with a “pleased-client”. Defendants unilaterally decide if and when to voluntarily resolve any claim against them.  And many have end-motives that transcend any particular dispute.  Thus, mediation end-goals for Defense Counsel at any given mediation are totally disparate from Plaintiff Counsel.  And, defense counsel performance at mediation will thus almost always exactly  mirror the pure dictates of their client.

However, my template when the DEFENSE is (or may be) seeking resolution:

Preamble:  Defense Counsel’s pre-mediation client*-conference is just as critical as for Plaintiff’s Counsel.  Although practically Defense Counsel’s mediation efforts in injury claims will be directed solely by the client’s insurance company who hires and pays the counsel for the insured, legally and ethically, defense counsel initially represent ONLY the individual insured, not the carrier. Thus it is their minimum duty to know and ethically plan for, well in advance of mediation, whether mediation directions from the client’s insurance company and the insured-client’s personal desires are similar or at least reconcilable.

(*In Florida, by statute, casualty insurance companies are not permitted to be named-parties to any third-party injury complaint; conversely, by court procedure, however, they are required “attendee-participants” in every court-ordered mediation!)

Outline format:

First, introduce yourself, your client and their insurance company’s representative(s):   And, including all others in attendance for your “side”:  i.e. an annuity specialist, a translator, etc.;

then clearly announce that your “side” has “spent much effort in preparation for the importance of today“.  (It is important to impress upon the lay-claimant the defendants side’s comparable evaluation experience and detail their pre-mediation effort to prepare the direction and extent of their mediation goals and prospective offers.)

Next, set your tone of civility.   Mediation for resolution means giving frank consideration that some future decision maker may well agree, wholly or in part, with some points of your opposition.

Thus, thank your opposing parties for their attendance and interest in resolution.  (Use this time to defuse any animosity that may have been created by the suit, the litigation process or even between parties or opposing counsel by affirming everyone’s ” interest in resolution“.) and

“avoidance of trial“. (In few circumstances does any Plaintiff want trial;  thus, remind all of this very EARLY opportunity to avoid it!)

Next, thank your opposing counsel (and even complement them) on cooperating for this important opportunity of reason and compromise.

And, ( hopefully) for their assistance to you in preparing.   (Even if stretching your real feelings, today, you NEED opposing counsel’s good will and good standing/influence with their client for YOUR client’s benefit!)

Ironically, your opposing counsel, properly armed, will be your biggest ally in resolving your dispute.  And, “You catch more ants with sugar than salt”

Next, now state, clearly, your clients’ mediation goal:

A)  If resolution is REALLY your clients’ goal today, say so by promising  hard work, in good faith, to achieve resolution.

B)  If resolution is NOT your clients’ goal then, please do NOT say it is.  (Rather, state that your clients’ actual goal, that day.  (i.e., “to “determine whether the opposing positions are or can be made close enough for resolution today.”)

If no promise is made; none can be broken if resolution is then not achieved.  Ultimately, credibility will always be just as important for the Defense as the Plaintiff even if resolution cannot be found that day.,

Next, include “the apology”.  Always!  See,  “Mediating Parties:  Get the Most Out of Your Apology”,  June 11, 2013.

In the mediation setting, an apology costs nothing but is often priceless to the Plaintiff.  Rightly or wrongly, every Plaintiff feels wronged.  And, further, they believe they are injured.

Any apology, at least some acknowledgement of at least the claimant’s injuries, is such an important factor in mediation that any defense counsel who omits some form of it, does so at their peril!

But, now follow with your own ” Good Faith Challenge”.  (You have set the stage for reasonableness, now ask for the same in return for your reasonableness.)

And,do it positively, not negatively:  totally avoid using the word “But”!

One example:  “Your attorney makes a number of valid points that we are prepared, today, to consider  In return, in the spirit of equal good faith, we hope you and your counsel will equally accept a few valid points we intend to discuss in presentation of the basis of our offers to be made today”.  ( Note, concessions and money to be offered in exchange for equal good faith in return.)

Now gain some credibility by a few selected concessions.

Find something to concede!  It is critical to build good will.

i.e., if liability is to be admitted, why not say:  “for today’s purposes, we will assume our jury will find my client responsible.”

Or, if damages are quite clear, “clearly, a jury will acknowledge some of the significant injuries you have incurred.”

However, now follow with your “defenses”

And,  don’t forget, “Burden of Proof”!

Burden of Proof is available in every mediation. i.e.,  “While for today’s purposes, we accept many of your assertions, we have considered that at least some of the present evidence may NOT be accepted by a future judge or jury.  And, your attorney will concede that until you meet all of your burdens of proof, some of your claim may not even need debate.”

“‘However, even if totally proven, there are other known legal factors we BOTH need you to fully consider for resolution today:”

Then raise a few clear “uncertainties” to a few of the total monetary damages being sought:

i.e., If liability is obvious, but comparative negligence is any factor, admit the likelihood, but use the Verdict Form to show clearly what large “deductions from damages” are available for even some small percentage of comparative fault, or,

If damages are clear, but some unpaid medical bills may be considered excessive, pointing out that “juries are required to consider ONLY REASONABLE elements of damage” ,

And, always consider sub-divisions of both general defenses.  Although liability and damages are the two most generally sought “divisions” of defenses, in actuality, in Florida there are at least three other considerations:  Comparative Negligence, Legal Causation and Damage Evaluation uncertainties.

Legal causation is always the biggest defense hammer.  i.e., “Our experts have opined that the extent of your damages are (different from your treating doctors, etc.),or

“Evaluation uncertainties” are important.  i.e., “Historically, in this jurisdiction, we have found juries have never awarded the types of evaluations you are asserting,…”  And, bring a few Jury Verdicts to demonstrate!

Note:  It is never necessary to make every point during your opening.  Strength, not length!  Pick only the most obvious and leave a few for your Mediator to carry for you.

Now, summarize:

Again,  use only POSITIVES.

i.e., “We believe we have much in agreement. We intend to accept the strengths of your positions, if you will also consider our strengths, equally.  If so, with mutual compromise, we believe a resolution can be found.”

Then, Close, with another thanks to all for their anticipated  good faith efforts.

As you can see, in many ways when resolution is really a Defense goal, the Opening Statement of Defense Counsel can be very similar to that of Plaintiff’s Counsel. The primary difference thus will always depend upon the purpose of the mediation, that day, for the Defense.  

I hope these modest suggestions, gained from observing some of our better defense counsel, will assist your own mediation presentation.

More importantly, perhaps the theme of these suggestions will promote greater use of  a positive approach in opening by both sides in more personal injury mediation.

Dan, from  (cool summers ) Houlton, ME.