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Personal Injury Mediation: Never Waive Physical Attendance of Any Insurance Representative!

May 2, 2018

Survivalists know that every warm body increases the entire group’s combined temperature for the mutual benefit of all.   The same can be said in mediation.  See, “Successful Mediation Requires All Participants Attend.”, March 21, 2011.

But some mediation attendance is even more valuable than others.

In personal injury claims, by contract, every liability insurer of any defendant effectively becomes an indispensable party to every effort of resolution.  So indispensable, that simply failing to formally include an insurer in all of your negotiations, timely, can  legally jeopardize the availability of their contractually available coverage.

And, in Florida, although defendant’s insurance entities are not permitted to be named as an actual party to civil litigation (historically to prevent juries from knowing that any party HAD insurance), ironically, they are a REQUIRED ‘PARTY’ to every court-ordered mediation of that same litigation!  Clearly, the Florida Courts’ rule makers realized that the insurance companies physical presence at mediation must be mandatory to have every reasonable opportunity of resolution.

Yet, too frequently, some claimant’s representatives are still “permitting” these critical professional insurance representatives to avoid their required physical attendance at all-important mediations.  (Despite clear, written legal requirements of court-ordered mediation, State courts are still prone to permit even procedural “stipulations’ by parties that often avoid many mandated requirements.)

The most common claimant-conciliation to their required physical attendance is to permit an insurer’s representative to “attend” mediation by phone! (Some even permit this critical representative-mediation party to “be on call” to their defendant-insured-party’s attending attorney, who “may call if necessary”!)

Please, just stop it!  You are killing your resolution opportunity before you even begin!

I have warned about this insurer-non-attendance issue before.  See, “Mediation:  Use Extreme Caution When Waiving Any Participant’s Personal Attendance”, June 8, 2012

But, the practice, even years later, unfortunately, still continues.  And the subject is too important, not to try again; this time, however, pointedly and with suggested, reasonable alternatives to consider.

Claimants may believe they gain some “favor” with this critical decision-maker insurer by permitting their non-attendance.  However, in reality, by this ill-advised gesture, most of the time they are only losing their very best chance of a fair mediation effort by the defense before they even begin.  At best, the insurers sole pre-mediation position already held will then become the only final position proffered

Isn’t the primary purpose of mediation to persuade decision-makers present to a position not already held?

Would anyone elect the telephone for any IMPORTANT judicial argument?  Would anyone feel comfortable giving ANY closing argument by telephone?

It is the same concern for any ‘PHONE’ mediation.

Consider the “new” mediation playing field:   The insurance company, the only “party’ with actual authority to resolve your claim, did/does not have enough interest in resolution of the dispute to personally attend this critical effort of resolution.  They cannot now see the claimant’s attorney’s presentation, observe the client or the mediator.  They cannot even see their own insured or even the attorney they are paying to represent their client!

And, do you really think a busy claims representative will closely listen to your presentation and ONLY work upon your claim while sitting on a phone back at their busy office?  (Why do you think most mediations are scheduled in neutral locations?)

Thus, the only persons now seeing and, likely really hearing, you or your claims-client, are either the party-defendant (who has no authority to resolve the matter) or the defendant’s attorney (who, technically, does not even represent the insurance company!).

You (and your Mediator) now, literally, have no one physically at your important mediation with the actual authority to alter/persuade the insurance company’s singular pre-mediation position.

(Or,  even to be one of the required signatories to any possible Mediation Settlement Agreement, without which you have no enforceable agreement!)

Over the years, I have heard all of the reasons to waive personal appearance of an insurance representative at mediation and some have had (apparent) reasonable merit.  And a very few even resolved.

But, in retrospect, even those could and should have been avoided.

There are better alternatives.

A few suggestions:

First, offer the ‘file representative’ who would/should normally attend, your mediation the very easy and reasonable option of sending a replacement.

Most insurers are already national, have offices everywhere and should quite easily be able to find another qualified company employee, somewhere, including one possibly residing locally or at least much closer than at the claims home-office.  Many such companies already have full-time employees whose only job is to attend mediations.

Another replacement option, if a company does not have such in-house substitutes easily available, is to suggest they retain an independent agency/adjuster to represent them.   There are numerous insurers (and Third Party Administrators) who routinely already retain such “independent” representatives for all of their mediation appearance requirements, nationwide.

Rarely will any attending representative ‘really’ have the full authority that is required (another topic for another day).  No company could ever afford to send such a ranking person to every mediation, nationwide.  Thus, in the majority of such matters what is most important is that warm body, actually attending, seeing and participating and who will be listened to gain a better authority, if a call becomes necessary; regardless of their title.

The reason?  Because, sadly, if persuasion of the phone-person to a better position at mediation is to have any chance, it will be only because of the combined role of the “messages” of the mediator, the defense attorney and the ‘replacement/substitute.

And guess which one, repeatedly, has the greatest weight?

Answer:  NOT the defense attorney (sadly) and not the mediator.  It will almost always be the input of that person, chosen by the phone-attendee and paid by them for their input that, combined with the others, can obtain that critical last effort of resolution.

A second alternative?  Offer to take the mediation to the representative!

Likely, this alternative can be reserved for cases that can afford the cost.

Then again, maybe it can be considered more than you might first think.  If only the claimant’s attorney need travel to the claims-representative’s, location, it might be a more useful and efficient option than you think.

Mediators and defense counsel can increasingly be found everywhere and no claimant necessarily need attend.  (If the representative doesn’t need to see the claimant in proposing attending mediation by phone, why should the claimant NEED to travel to be seen at all?)

And, as a third alternative, consider simply offering to  reschedule solely to accommodate the insurance representative!

Such an offer should certainly flatter the exact person who really is necessary for resolution.  And, rescheduling would not likely have to be offered more than once.

Regardless of these three alternatives chosen to be offered, any alternative will give the claimant a far better opportunity of mediation resolution, all other circumstances remaining the same, than any “phone attendance”.

Accordingly,  after extending one or all of these reasonable alternatives, please, please, never again waive the physical attendance of at least SOME insurance representative at any personal injury mediation.

Your client (and your mediator) will thank you.

Dan, from Winter Park, Florida




Are You Making Your Own Mediation Success “Impossible”?

November 10, 2017

Are you (or your client) making your own mediation success impossible?

No mediator can cure “impossibles”.  If any party will not retreat from any final, but, “impossible” negotiation position, that party, at least that day, is literally making their own mediation success “impossible”.

And, frankly, nothing any mediator can say or do, that day, will avoid that mediation’s failure.

Further, that side is losing, that day, one of its most valuable litigation tools: early dispute resolution by compromise.

But, worst of all: these same repetitive  “impossibles”contribute to those who already wish to believe mediation is a waste of time.

What are “impossibles”?

Answer:  Any negotiating “offer”/position that no reasonable opponent can possibly accept.

Two of the most common include:  1) a claimant’s final ‘demand’/offer to settle that exceeds every probable ‘reasonable’ verdict in any dispute; (i.e., no party even considers any final negotiation position of an opponent that is anywhere near the alleged ultimate verdict!) . and 2) a defendant’s final financial ‘offer’ that does not permit an opponent’s acceptance due to the opponent’s simple mathematical inability to extinguish the known claimant’s debts after attorneys fees and costs are paid.

Both are all too common.  Many are usually based upon a failure to adequately and objectively understand the reasonable options of your opponent; such as over-estimating the strength of your own position; underestimating the opposing position or, under-estimating the non-negotiability of some unalterable element of your opponent’s position.

In personal injury mediation, an oft-expressed, but doomed, defense position is that their final position is based solely upon what “we always pay”; an irrelevant factor which too frequently is outdated at worst and at best totally unrelated to the facts and issues then pending.   A frequently heard final position of too many claimant’s is rooted in the current popularity of using “bad faith” as a weapon in negotiation;  i.e., “anything less than our final position will be in bad faith”.

Sadly, many such “impossible” postures by mediating parties are also, lately, too often based upon matters that have nothing to do with that particular dispute itself.

For example, if, (hopefully unconsciously) an attorney wants to take a matter for trial for any reason, personal or professional, other than the unfairness of the opponent’s final offer, that unrelated element injected into that negotiation can, and does, create an “impossibility” totally unrelated to that dispute.

Or, in a personal injury matter, if an insurer decides, for “policy” reasons, to generally resist voluntarily paying all medical expenses they believe are ‘patently excessive’, and allegedly thus “send a message” for the handling of other future matters by that counsel, again, that is, technically, totally unrelated to that dispute.   i.e., See, “Personal Injury Mediation:  Healthcare Billings are Forcing Unnecessary Trials.”  June 28, 2017.

Impossibles in any negotiation setting are certainly nothing new; they happen sometimes simply unknowingly by the parties or their counsel (and their Mediator?).  But, again, recently, they seem to be occurring much more frequently.  And, I believe they are also occurring too frequently to be solely accidental or coincidental.

And, I have seen this apparent cycle of “impossibles” before; but in slightly different settings.  See, “Personal Injury Mediation:  A Disturbing Trend or A New Flawed Tactic?”March 12, 2014, or  “Your Mediator:  These Days Best Considered A Farmer?”October 21, 2015.

Thus, the question is, whether, some  new generic  issue is again causing another policy change amongst trial counsel, plaintiff or defendant, or whether some insurance company’s (or companies’)  new tactical cycle is causing “mediation impossibles” to rear their ugly head again?

Reportedly, mediation settlements, including those happening later but directly because of the critical initial progress first begun at mediation, are still holding steady.  However, to many, mediators, judges and even litigators, it seems that far too many such recent settlements are now coming somewhat AFTER mediation rather than AT mediation.

Needless to say, any moneys and professional time needlessly expended by the parties or their counsel even one day after mediation are an immediate net loss to BOTH sides losing sight of some of  the most important true goals of any mediation:  saving time and money.

But, my fear is of something more basic:  the potential greater loss of confidence in mediation as the principle means of final dispute resolution.

Too many parties already approach their mediation either as an unwanted chore or a waste of time.  I know they are clearly wrong.  See, “Why Mediate When Mediation is a Waste of Time”, June 12, 2011.

But, I confess that each time I see one side or the other literally squander away their best opportunity for a complete settlement due to final position that is  clearly either a lack of either total preparedness or planning on one side or the other or both, I know that all sides to that mediation will now become added to those same ones who really start to believe that their mediation, that time, was a “waste of time”.

But, again, I respectfully suggest they are still wrong.  Even with that same mediation failure, at the best, that same case will still settle far earlier and at far less litigation cost than one not previously mediated.  And, at worst, the better attorneys on both sides will make it very, very painful for the opposing party to use the “Lotto” mentality to choose litigation over acceptance of a fair offer.  See, “Proposal for Settlement and Mediation:  Part II:  More Tactical Suggestions.”  February 28, 2012

Thus both sides are still better off for having mediated!

Mediation remains the most successful, most useful tool for litigating parties to avoid not only the uncertainties of a bench or jury decision, but also everyone’s best opportunity for a significant savings of time, money and stress upon the parties (and an increasingly burdened legal system).

However, the next time your own Mediator suggests to you that your latest, even more, your final, negotiation position is an “impossible” one, consider that it is really YOU (or your client?) who is dooming your own mediation success.

Dan, from Port Orange, Florida.




Personal Injury Mediation: Healthcare Billings Are Forcing Unnecessary Trials

June 28, 2017

Our modern healthcare community and its rising billings are increasingly contributing to the over-crowded civil dockets of our courts.  (And, killing mediation!)

In personal injury mediation, the injured person’s related and reasonable medical care and billing is the single most important component for a prognosis of an early, fair settlement resolution, particularly at mediation, without the necessity of trial.    See, “Personal Injury Mediation:  The Importance of Accurate Special Damage Information:  Part I, Medical Expenses and Liens”,  December 19, 2016

Ask experienced attorneys on either side of a personal injury matter or the insurance industry and all will acknowledge that the single greatest change in the last fifty years in litigation involving injured humans is the over-accelerated cost of medical treatment (and medical experts).  Attorney’s fees during that time have not changed at all for claimants and have even dropped for defendants and insurance carriers due to pure marketplace competition.  Litigation costs have risen slightly with inflation and more sophisticated usage, but remain well below the time-rise in say, food.  But healthcare has skyrocketed, medical-legal experts are getting wealthy and there appears no ceiling in sight; at least for the United States.

Further, increasingly, medical treatment that is believed by any defendant as unnecessary or excessive or, worse, medical charges that are believed, if not known, to be clearly excessive for the value of the valid medical service rendered can doom the resolution process; even in matters in which there is little issue over a defendant’s responsibility or even the existence of some personal injury of the claimant.

Increasingly, defendant’s insurers, who are always the only real decision-maker in personal injury matters, if they are unwilling to accept a particular medical treatment or bill because it is believed by them to be unnecessary or excessive in cost, are simply choosing trial as their final arbiter of  what is the proper personal injury care and cost.

The obscenely rising cost of valid medical treatment, without regard to our legal system, is already a major problem for the entire insurance industry (see the present, apparently “uncontrollable”, national Healthcare cost debates!). Couple this, however, with the legal system’s alleged compounding impact and the frustration of the insurance industry and it quickly ends with too many unnecessary trials in both Federal and State courts.

Sadly, there seems little that the actual parties, plaintiff or defendant, can do about it.  See, “Personal Injury, Letters of Protection and Mediation”, February 21, 2013.

It is the rare injured party that has the choice, much less any control, over their medical providers, their related medical treatment, or the medical bills charged to them.   A large percentage of injured persons have no regular medical home.  Many are transported immediately to simply the nearest emergency treatment facility who, in turn, simply assign physicians to the patient; even more out-patient care physicians are recommended by the initial treatment facility. Many physicians who are elected are dictated solely by insurance coverage; many are sought simply for more convenient access and availability; some simply because of a family recommendation.

And, most before they even consult an attorney.

But, even if a few attorneys  do “steer’ their clients to medical providers for reasons they believe in the client’s best interests, because too many hospitals openly overcharge paying patients to adjust for non-payors and/or some medical providers (or some groups of them) knowingly charge excessively for a service or refuse to take lesser insurance allocations for their services in “exchange” for the “headaches” of treating persons involved in the legal system, again, the injured party, nor the defendant, nor their representatives, have no realistic control, whatsoever, in these healthcare billing matters.

And, neither does any third-party personal injury-insurer!  Thus the frustration.

“Unnecessary” and “excessive” will always be in the “eye of the beholder”.  Unfortunately for most injured parties, however, the “beholder” AT MEDIATION is usually these same “frustrated” insurance professionals and their attorneys.

And, lately, this allocation of their unilateral perception of healthcare “fraud” is not going well for many claimants.

Too many personal injury mediations are failing resolution simply because of the “math of mediation”.  And, the math is failing simply because many Defendant(s) cannot or will not justify an offer of sufficient monies to allow the Claimant to “net” any personal compensation for their unwanted injury due solely to allegedly excessive medical expense; and too often may not even offer enough to pay medical bills and liens incurred allegedly due solely to the unwanted incident (much less, attorneys fees and costs!).

The resultant trial is thus foreseeable.  It is the rare claimant’s attorney who can resolve any injury case where the bills and liens proffered by the treating healthcare providers cannot be paid.  The only choice remaining to such an injured party is to try the case.

This mediation-math-crisis may be a mindless backlash by the insurance industry at excessive medical costs; it may be (frankly, many times it is!) justified in any specific case. Unfortunately, it is ending too many negotiations with almost always totally needless trials.

No injured party asks to be an injured party.  And, sadly, today, despite many alternatives and choices, the majority of those injured parties simply have no means to pay for health care!  (Like savings, healthcare seems to be one of the last choices most make when parceling out their “disposable income”.  And most young people do not even consider it)

Automobile drivers, however, will purchase liability coverage (many states require it!).  Property owners are often contractually obligated to purchase liability coverage.  And, third-party liability insurance clearly remains a highly profitable enterprise or there would not be so many alternatives to purchase!

Thus, all of the rational participants in every personal injury matter need to rethink,  and early, how they must approach any personal injury matter and its resultant medical bills, to increase all opportunities for success in resolution without trial.

It must begin with injured parties and their representatives, where possible, making wise selection of healthcare providers and carefully monitoring unnecessary medical treatment or excessive expense.   Claimants must treat only as actually required for a return to health.  Claimant’s attorneys must confine their legal direction of their clients to emphasize proper medical treatment over merely large bills.

Ironically, most healthcare providers also try to avoid the court system like the plague; it is both foreign to them and to most not economically worthwhile.  (Except to many “medical-legal experts” who generally make more money as experts than as practitioners!)

It is thus time that hospitals, physicians and all allied healthcare services recognize their own obligation in this process.  Healthcare providers  who accept treatment responsibility for injured persons, must perform it reasonably in keeping with known community standards and resist any temptation of gaming the system for any collateral purpose.

But, insurers must also accept how little control any injured party or their representative have for the choice of most of their caregivers, or the amount of any medical bill charged to them by those providers.  They could help by selling more medical pay benefits and more timely payment of medical bill assistance, even partial advance payments, to allow better healthcare choices to an injured party.

And, insurers must stop blindly choosing, on a volume basis,  to pay attorneys and medical-legal experts to delay fair resolution rather than timely resolving those matters they know they could and should.

In the end, it will require the entire body all of the participants in the personal injury field, working together, not at odds with each other, to first avoid,  then aggressively control excesses of treatment and billing.

If everyone does not contribute, and soon, our courtrooms will be the foreseeable end destination of too many more otherwise resolvable matters.  If so, everyone, except those who game the system, will continue to be the losers.

Dan, from Yeehaw Junction/Lake Wales, Florida.


Memorial Day 2017? Who Did You Really Remember?

May 29, 2017

Twelve percent of America actively served in the armed services in World War II. And, I suspect every family in America also personally suffered the death of at least one loved one arising from that same service.

We barely began to forget those horrors when many of our loved ones were called back to the Korean War, a war that ironically continues (and even directly threatens) today.

By the end of the Vietnam War, we were so sick of all of our sons’ mandatory service in the military to support our wars, our politicians turned away from the unpopular Universal Draft and instead opted for an all-voluntary Army, Navy, Marines, Air Force and Coast Guard.

Sadly, however, our involvement in war did not end.  We have had one, of one size, or one cause, or the other, every decade since my birth.

But, I am willing to bet the personal connection between those sons (and now daughters) who now serve, and still die for you, is all but lost to you and your family.

Less than one percent of our population now serves.  Statistically, therefore, you are an almost surety of not suffering a personal loss, and likely not even knowing a neighbor or friend whose family does.

Somehow, I can not believe that our loss of direct investment in our armed services bodes well for our country.  Can it really be healthy to be without a personal investment in our freedom?

Freedom is not free.  And, everyone who enjoys it should at least FULLY understand, if not actually feel, the real cost every time someone so easily chooses war.

Did you really think about anyone who served or serves in defense of your freedom, much less died for you, on YOUR Memorial Day?  It has never been only about your grill or day off.

I hope so, for our country’s sake.

R.I.P.  Pat.

See, “Memorial Day for Me.  Memorial Day for You?”, May 24, 2012.

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 be 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.