Mediation Negotiation Technique: Create A Negotiation Plan

Success is never an accident.  Or, at least not repetitive success.   All  repetitive success requires planning.

To be at ease in any venture, in total control of the process, directed toward a specific goal and on planned route to that goal, you simply have to work hard, in advance

Accordingly, to be repetitively successful in mediation negotiation, you must create and follow a mediation negotiation plan.

Creating your negotiation plan requires a few minimal specifics:  an advance resolution point evaluation, an appreciation of your opposition’s position, specific incremental negotiation goals and a reasonable, organized work method designed to achieve those goals during your mediation.

You must  begin your plan, first, and foremost, by thoroughly and properly evaluating your most likely resolution point.

You obtain that value from estimating your likely future trial outcome, See, i.e.,  “Rule One:  Know Your Alternative(s) Should Mediation Be Unsuccessful.”, December 19, 2010, and then discounting that potential future trial outcome by the known savings in time and money (and uncertainty) resulting from resolving the matter for more/less now!

Accordingly,whether plaintiff/complainant or defendant, your first task is to evaluate your likely outcome at your future trial, should your total negotiations fail.  This may be your most important step for any negotiation, and the one most often neglected.  In short, how can you evaluate any good offer to resolve a dispute today if you don’t know, well and confidently, your likely future trial outcome, and the additional time and cost (and uncertainty) to get there?

There are many ways to accomplish this resolution point: in-house verdict examinations,  informal discussion-evaluations with similar counsel, jury verdict research, mock juries, and even computer models for such evaluations.  And, of course, accurately knowing the additional costs of continuing the litigation.

The larger point is that you must, by some method or methods, examine every potential outcome, objectively, frequently and honestly to arrive at a fair range of potential future outcomes to use for your negotiation plan.

If you fail this initial step, you may as well not bother with the remainder of your plan.

Next, you must understand and appreciate your opposition and their position.  Whether you agree or not with any point raised by your opposition, your must appreciate that your opposition clearly feels as strongly about their position as you do about yours.  It is thus critical that you understand why.   See, “Consider the Real Estate Market When Planning Your Next Mediation Negotiation“, December 22, 2010

The reason:  only one point of view is going to be accepted by your alternative trier of your dispute.  You must objectively determine which of each point of  your dispute is more likely to be accepted by that future neutral fact-finder.

If their point is more likely to be accepted than yours, either find a foolproof way to defeat their point, or accept it, at least for your evaluation purposes.

Trial lawyers, as advocate-warriors, always have a difficult time with this step.  Again, however, the best lawyers know when they should concede a point, if only to reach the “most likely” outcome to consider.

In the end, to prevail you need not win every point;  only the majority of them.

Step three, you must establish your mediation negotiation goals.  There are many goals to consider (and record) in mediation negotiations, but those that are most important include: 1)  your opening demand/offer  2)  your final mediation goal (if resolution is NOT possible) and 3)  your final resolution goal (if resolution IS possible).

Your opening proposal, if you are the plaintiff, may well determine your final mediation outcome.  See, “Putting the ‘For Sale’ Price on your Horse“,  January 31, 2011.   The same is true of any defendant’s initial offer.  The more reasonable your initial proposal (compared to your final position that day), the greater your success potential.  (And, because you know exactly where you CAN go, you can be more confident in your opening generosity.)

It is also critical to get off to a productive start.  And, this is equally true, whether the plaintiff or a defendant.  See, “Is ‘Fear of Failure’ Ruining Your Negotiations“, December 10, 2011.  However, being able to ignore the opposition’s early  seemingly unwarranted responses due to your pre-planning is another plus to your plan.

Likely your negotiation will be done incrementally.  However, you must be prepared to evaluate the usefulness and timing of bracket negotiation.  There is a place for both (and other) techniques.  At each exchange, however, it will be important to carefully compare your present posture with your working plan (and time remaining and the advice of your mediator.)  Note, comparing your position progress does not mean complaining about or demeaning the responses of your opposition.

Early on you will also need to determine whether resolution seems possible.  A different set of processes go into play depending upon THAT answer.  Among other decisions is whether all of your cards can be played (or your “lowest/highest” proposal made) or whether some need be withheld.

And, of course, your positioning for tactical use (by any party)of the proposal for settlement rule needs to always be kept in mind.

Finally, then, you must plan your work-schedule-method(s) of how to reach your planned goals, including final resolution.

The parts of the work method you must know:  1)  the time allotted for your actual negotiations (not to be confused with the total formal mediation time presently scheduled!)  2)  the number of moves you wish to make to reach each of your goals  3)  how much information, if any, you wish to convey (and when) until you have determined whether mediation resolution is possible.  4)  your use of brackets, or not 5) whether or not you wish to “worry” about your opponent’s positions in negotiation and 6) how to best use your mediator.

I always encourage speed, at least in the opening exchanges that set the parameters of the negotiations that day.  Try not to bog down your mediator with your arguments until he/she really needs them.

You need to also leave room (and time) for adjustment.  You may not wish to alter your plan if no facts change.  But, facts can and do change!  And, your mediator, a neutral, is a wonderful resource to test close issues of fact.  Be prepared to alter your position as these facts become more acceptable or understandable.

And, an alteration may have to be to your timing plan for your negotiation moves.  Again, your mediator is a good source to use as a sounding board.

It is also important to plan for patience.  Each side has its own processes.  Everyone’s “needs” need to be met, not simply yours.  Your mediator should be able to assist you in understanding the parties needs.

And, of course, you will want to have a draft of exactly the terms you will either propose or accept upon your successful mediation resolution in the written settlement agreement.  At the least, use this draft as a handy checklist of the total  issues you must resolve.

Keep in mind that regardless of the rigors of your route, eventually, one side or the other(or both) will announce that they have reached their final resolution position (for that day).  Even if resolution is still (then) impossible, you know far, far more than you did when you began and you now know your options with much more clarity.

And, if your plan is a well thought out as it should be, you can now simply prepare for trial.  But, there still remains the very good chance that if your plan is better than your opposition’s,  sometime soon your dispute will still be resolved prior to trial.  And, likely according to your plan!

A successful mediation requires a negotiation plan.  Trust me, once you have completed your negotiation plan, your mediation will seem so much easier!

Mediation Tip: The Importance Of Early Appellate Counsel Actively Participating In Appellate Mediations

Mediating a dispute that is already on appeal is no picnic.  Some would suggest it is an impossible task.  But, remarkably, mediation of a dispute that is still in the early stages of an appeal can be surprisingly successful if conducted appropriately.

And, in point of fact,  reportedly as many of 30% of  those total matters selected by Florida’s Fifth District Court of Appeal for appellate mediation actually resolve pre-appeal.

Those statistics are likely skewed by both selection and subject matter.  I suspect, for example,  that matters of law or matters involving large sums of money (or principle) may fare far worse for any number of valid reasons.  But the larger point is that appellate mediation can be very worthwhile in some disputes.  Even for parties that prevailed at trial.

The art (yes, art) of successful appellate mediation is also a very large subject.  Too large for one article.  However, one simple, but essential recommendation to improve any parties’ chances of success in appellate mediations(which some appellate courts require) is the early,  involvement and participation of appellate counsel in the formal mediation conference.

Obvious you say?  Not really.  (Why do you suppose some appellate courts have a special rule about the subject of the mandatory appearance of APPELLATE counsel at appellate mediations?)

Among other common “excuses” for the frequent non-attendance of appellate counsel at the earliest stages of an appeal, including most appellate mediations, is, of course, cost.   Trials are expensive and both sides, regardless of who prevailed, have already invested large sums of monies on attorneys fees.  Gaining approval for more “unnecessary” fees can be a daunting task.

However, among other common reasons, I suspect, for an absence (in fact or in spirit) of appellate counsel at appellate mediation is their relative newness to the cause or conflict.

Assuming the appellate counsel were not trial counsel (some few trial counsel also perform as their own appellate counsel), and their client contact has, so far, been minimal (usually no substantial involvement, or cost or fee, has been incurred) it is foreign for them to be asked to lead in the appellate mediation discussions.

Further, often the client’s reliance is totally vested in their trial counsel.  And, particularly if that side is, so far,  the prevailing party; they LOVE their champions, their trial counsel.  (Maybe not so much love on the other side?)

And, any attorney who did not prevail, likely is quite biased about wanting “another shot”.  “What do we need another attorney for mediation?  We couldn’t settle before,  why would we now?  Let’s save on those unnecessary fees now and get on with the appeal!”

Penny-wise and pound foolish?

Interestingly, there is also a very real double-whammy potential for conflicts of interest with both counsel advising a client!  The trial attorney may not enjoy another attorney revealing weaknesses in an appeal that may have caused by the trial counsel.  The appellate attorney may also be reluctant to advise of such weaknesses or even against an appeal when such advice could means a loss of  a referral source or the income for undertaking the appeal.  And, there are many others.

And, frankly, those parties who have already apparently rejected any pre-trial settlement for a trial by a judge or jury, are  not suddenly likely to believe a voluntary pre-appeal settlement is in their best interest.  And, again, particularly if they WON the trial!

But trial is also now over and the practice of the appellate side of things is as foreign to most trial warriors as the trial process is to most appellate types.  But, BOTH types of counsel, are now required for any client to fully grasp the advantages, if any, to a settlement at appellate mediation rather than slogging on through the appeal.

And, the mediator will need the assistance and information from every possible source to educate the parties to trying to find a valid  resolution option to the finality of an appeal by others, again, out of their control.

As usual, good lawyers will overcome all conflicts of interest or even self-interests and truly serve their clients.

And, most  appellate lawyer specialists are more than willing to work with trial counsel to obtain their services at a reasonable value for these mediations.  After all, the large majority of these cases will not resolve at mediation and will need an appellate attorney.  And, should the matter resolve, the appellate attorney ends with some fee, a satisfied client and a really satisfied referring attorney who will now undoubtedly call again!

But there are known factors that mediators use to  allow a substantial percentage of appellate mediations to succeed.  And, often, at least in concert with the trial counsel, these factors, in my opinion, are best explained to any client, by a mediator, in combination with both trial and appellate counsel, conferring together.

At this early stage, the appellate counsel desperately needs to know the true appealable issues and the unvarnished facts.  And, here is where trust comes in.  Because there is, as yet, no transcribed trial record, and likely (but unfortunately) the appellate counsel was not present during the trial, he/she is totally dependent upon the trial counsel for the reliability of those facts and issues to be properly evaluated.

And, the trial counsel, is now totally dependent upon the appellate counsel to fairly advise him/her and their client about the likelihood of their appellate chances, on either side of an appeal.  If the appeal does not go as anticipated by the client, although the appellate counsel will receive some critical thought, in the end, it will be the trial counsel who takes the brunt of the blame.

But, it is the client who really gains the most from having as much early information as possible.

If the client has prevailed at trial and can now walk away a winner, intellectually, without the expense of an appeal,  most would prefer to do so and now, not later.

If the client has lost and likely will lose again, you can bet they will want to know so they can cut their losses and not throw good money after bad.

Having the right counsel in attendance allows the right decision to be made.

You know how much I advocate having the right participants at any mediation.  In appellate mediations, it is critical that both the client’s trial counsel and their appellate counsel be present to allow the client their best and most informed choice of resolution or appeal.

Predicting Your Own Mediation Outcome: Warning Flags to Read

Beachgoers know that they can predict their probable swimming safety by paying  close attention to the warning flags posted on their beaches by their lifeguards.  Likewise, good mediators are able to predict the probability of your mediation success by simply paying attention to certain pre-mediation “warning flags” that are the known precursors to mediation failure.

Knowing these warning flags will now allow you to also predict your own probable mediation result.  More importantly, knowing them may allow you to change your pre-mediation chances of success by avoiding these issues altogether or curing them in a timely fashion to prevent your probable mediation failure.

No single “warning flag” is directly and singularly definitive.  And, of course, there will always be exceptions.  However, you can be assured that the more of these flags you observe, uncorrected prior to your mediation, the more likely the outcome of your mediation will be a failure of resolution.

Pre-mediation “warning flags” you should know and appreciate, in no particular order of individual importance, include*:

1)     Your mediation is scheduled without a pending trial date.  (Or, your “significant damages” mediation is scheduled without an eminently pending trial date.)

2)     The subject matter of your mediation involves any healthcare negligence issue.  (Or,  is a mortgage foreclosure matter with an un-employed defendant-borrower.)

3)     Time reserved for your mediation is less than four (4) hours.  (Particularly if it your opposition who specified the time required.)

4)      One attorney or more does not send your mediator a pre-mediation summary.  (Or, even a courtesy copy of an old claimant’s “demand letter” or  a defendant’s “status report”)

5)     One attorney or more does not return phone calls from the mediator seeking a pre-mediation conference.  (Or, repeatedly suggests to the mediator they are not “ready” to conference)

6)     The in-litigation mediation is described as “voluntary” and/or is without a specific Court Order outlining the mediation requirements.

7)     One  “required mediation attendee” or more is not planning to attend or wants to attend only by telephone.  (And, worse, the opposition is not aware of this.)

8)       Any actual “decision maker is not planning to attend or plans only to “be available” by telephone.

9)       One “attorney” or more reveals their party is “not ready” for mediation, but they have not been able to obtain the agreement of the other side(s) to continue the mediation until they can become ready.

10)     There is no history of any negotiation between the sides.

11)      No proposals for settlement have been made by any party.

12)     The claimant’s attorney has made no recent pre-mediation demand and/or has not “refreshed-confirmed” any earlier demand.  (i. e., The defendants have no idea of what the claimant is actually seeking as mediation begins!)  Or worse, the claimant’s attorney has no authority, yet.

13)     The defendant’s attorney, in an insurance-dependent matter, has no knowledge of the specific insurance representative who will be attending the mediation.  And/or,  has no prior relationship with the attending representative.  And/or, worse, has no idea of the position that representative, generally, has toward the mediation goals.

14)     One attorney or more cite prior personal or professional “issues” with any other attending attorney (or party).  Particularly, if credibility is one of the issues!

15)     One attorney or more have not had their timely and repeated request(s ) for information to which they are entitled timely fulfilled.

16)     One attorney or more complain of a historical “lack of cooperation” of the opposing counsel.

17)     One attorney or more fail to comply with the now required Certificate of Authority.  (And/or fail to send a copy to their mediator!) Or, worse, is unaware of the requirement (or purpose) of the Certificate of Authority.

18)     Any client arrives the day of mediation, before their attorney, and asks the mediator “what is this all about?”.

19)     The claimant’s attorney holds their first pre-mediation meeting with their client immediately before formal mediation is to begin.  (And, worse, “to obtain their authority”.)

20)     Any defendant’s attorney holds their first pre-mediation meeting with their client immediately before formal mediation is  to begin. ( And,, worse, with any party who will be asked to pay anything toward a resolution!)

21)      Any attorney is overheard introducing himself/herself to his/her client!

22)      The formal mediation begins with one attorney or more personally handing-out information to the opposition that “they need to know for today’s mediation”.

23)       One party or more unilaterally announce, for the first time just as mediation begins,  they will “have” to leave prior to the time reserved by the parties for the formal mediation process.

24)       Unknown to the opposition, a personal injury claimant is still actively treating.

25)      An opening  statement of one attorney or more begins with a PowerPoint presentation never before seen by the opposition.

26)      One attorney or more  include within their opening statements overt “threats” against their opposition.  Or, worse, include personal attacks upon specific persons attending.

27)      The claimant’s attorney, in an insurance dependent matter, has no knowledge of the specifics of the defendant’s total insurance coverages.

28)      One attorney or more refuse to allow their client to actively participate in caucus discussion with the mediator and their attorneys.

29)      One attorney or more  is unable or unwilling to confidentially share, in caucus, their estimation of the future range of their alternative verdict with their client and mediator.

30)     One attorney or more is not prepared or not willing to share, with the mediator, their fee details and their litigation costs and/or is not familiar with the existence and amount of any liens that may require payment.  And, if applicable, specifically information required for any Medicaid or Medicare lien.  And have not considered the defendant’s likely requirements for an MSA.  (Or, worse, is unaware of the potential significance of MSA.)

(*Note:  Each of these ‘warning flags” arise from actual happenings.  But, some are observed  more frequently than others.)

There are obviously other similar known pre-cursors to mediation failure, but some are less predictive than others.  You probably already recognize the general pattern of why each of these are presently listed.

And, as you might suspect, an entire separate article could be devoted to why each of these “warning flags” are warning flags.  Some of them are already the subject of one or more of my educational blog articles.   Some soon may be.  However, for now, it is more important that you know these warnings and consider them as you approach your own mediation.

Further, if this article sounds like a “checklist”, it is actually intended.  You just might want to print this off and keep it handy as one of your own preparation outlines.

Most importantly, however you really can use these “warning flags” to either predict your own mediation outcome, or better yet, improve you success by avoiding them.

Be looking for the warning signs to read in your next mediation preparation.

“Early Bad Faith Mediation”: New Techniques To Consider?

“Early bad faith mediations” are those mediations of negligence claims in which the full limits of a tortfeasor’ policy have already been offered prior to trial and the claimant, seeking monies from the tortfeasor’s insurer beyond those already tendered policy limits, has already rejected that tender and  is still pressing  forward to trial at the time of mediation.  

The intent of the thus pending trial is to obtain an “excess judgment”,  a judgment over the tendered policy limits, that can later be used as grounds to sue the tortfeasor’s insurer directly.  The basis for this intended, future second suit for the recovery of  any judgment in excess of the tortfeasor’s insurance, referred to as “bad faith” litigation, is because the apparently inadequate policy limits were allegedly not offered in settlement “when, under all the circumstances, (the insurer) could and should have done so had it acted fairly and honestly toward its insured and with due regard for his interests”.  (Thus, the term, “Bad Faith”! ) See, Florida Standard Jury Instruction, 404.4 (2012)

(Coincidentally to my publishing this article, the Florida Justice Association’s JOURNAL for August, includes several great substantive articles on the cutting edge issues of bad faith law in Florida.  See, i.e., separate articles by “bad faith” attorneys, Dale M. Swope and Gregory M. Yaffa, #562, August, 2012)

Many judges, hoping for any possibility of a resolution of both trials, the present one and the likely future one, in spite of  the clearly very “early” nature of any potential second trial (ie. in the second trial there will be totally new counsel for both sides and totally new insurance representatives) will refer these matters, even repeatedly, to mediation.

Not surprisingly, however, unless new and different techniques are employed by both sides than are usually used, such “unique” mediations have little chance of success.  But, surprisingly, when extra effort (including by your mediator) and different techniques are artfully employed, such mediations can be very successful.

Some background for the requirement for these different techniques, however, may be necessary.

First, the entire subject of “bad faith” is a very sore one for insurers.  Anytime any insurer is asked to pay more than the limits of any policy applicable to any incident under any circumstance, that insurer will invariably instinctively dig in their heels .  It is simply against their very “culture” to voluntarily pay one dime beyond those limits of coverage that the policy holder paid premiums upon.

Further, most insurers see any such claim as essentially a claim of “insurance malpractice”.  And, we all know how any professional reacts to being accused of professional negligence!  Insurance companies, composed of insurance professionals, feel exactly the same.  And, like many other professionals with money, unless they can be convinced of a reasonable basis for the allegation, you must assume a jury may be making the final decision.

Accordingly, in order to have any chance of mediation success for obtaining “extra-contractual dollars”, monies beyond the policy limits “contract” of any insurer, a great deal of extra effort and pre-mediation preparation is necessary.  Or, you are almost certainly wasting your time.  (Note:  As I believe all mediations can be used to gain valuable benefit, in this context of your time waste I am referring only to the chances of  a claimant, achieving a resolution of both cases.)

Your first new technique must be in obtaining the interest (and, thus the actual physical attendance) of the “real” parties in interest to your claim for extra-contractual monies in a mediation that precedes only the first trial!  This critical subject was addressed in my earlier article, “Mediation Strategies:  ‘Early Bad Faith’ Mediations Require the Proper Participants“,   April 10, 2011.

However, once you have the attention (and attendance) of those real parties, you have other new mediation techniques to master to obtain their actual resolution interest.  (or, at the least, to hone those you already are wisely using!)

This new mediation technique begins with your preparation for a two-step mediation presentation. 

First, you must  convince the tortfeasor’s insurer of the “excess” settlement value of your claim in a range that they would pay if they had unlimited coverage AND  Second,  you must also convince them you will likely also prevail on the second required trial because of their “bad faith” handling of the underlying claim.

Do I really need to tell you that, again, your mediation success in these early bad faith mediations begins with your pre-mediation preparation and exchange of advance information?

You can possibly succeed without such pre-mediation effort in other simple matters.  You will not succeed in any bad-faith issue without it.

First, you must understand the advance mindset of the insurance company.  They honestly believe they always fully and professionally perform their duties.  They are just as proud of their “profession” as any professional.  They have timely received and processed the claim as “permitted by the circumstances*”  (*see the latest (bad?) case law, Goheagan v. American Vehicle Insurance Co., ….So. 3rd…., 37 FLW D1388 (4th DCA June 13, 2012).  They have,  prior to trial, offered the limits of the coverage purchased by their insured.  They stand ready, beyond those limits, to defend their insured to the best of their ability if the limits are not accepted.  And, they may even choose to appeal any adverse outcome and if necessary, try a case multiple times. 

But, most of all, after fulfilling their legal obligations, they truly believe that any ultimate lack of limits to cover any ultimate verdict and/or judgment is something that in the end is simply the sole problem for their insured who chose to be “underinsured” rather than pay higher premiums.

With this mindset, any “early” mediation, must be approached simply as a great business opportunity for the insurer to choose resolution over the path they are forced to take without a resolution  In simple language, any claimant must convince them that their final mediation proposal is  a business  ‘bargain” compared to the “more likely than not”  total end result without resolution.

This “bargain” process begins with convincing the insurer’s excess claims representative and/or their attorney that if they had unlimited coverage that the final mediation “demand” of the claimant prior to trial would likely be a good business decision as opposed to awaiting a trial verdict and final judgment.

This is a real administrative task, pre-mediation, because likely reaching the attention of these “real” parties, who ostensibly are not involved (they never want to admit they are even thinking it a problem for the future) is difficult.  And, if they are listening, they are first listening to those being criticised!

Accordingly, one new mediation technique of  best reaching those undisclosed persons is to communicate with the presently assigned adjuster/attorney with “an extra copy to be forwarded to those who may have an interest”.

Trust me.  Once a tender of limits has been rejected, SOMEONE has opened an excess file with a separate set of eyes in review.  They are, after all, really professional at risk-analysis, including risks to themselves.  And, someday, when the underlying claim file of the insured’s representation is requested, they will WANT to have a separate file for their own internal protection of  their internal review of these sensitive matters to prevent their disclosure.  LIkely your “extra copy” communication will ultimately lie there!

Next, your second task is to then convince those same persons of the strength of your alleged “bad faith” claim.   And, once again, well in advance of your formal mediation date.

Remember the mindset, your task is to show reasonable grounds to prove that usual and normal claims handling, by their own employees, including their counsel, was negligently performed!  And, that if handled properly, the “inadequate”  limits would have been tendered and accepted by the Claimant in settlement of the claim.

Here is where many plaintiff’s initial counsel find their primary “bad faith” problem.  In short, if they didn’t “play fairly” in submitting sufficient timely information to show, “clearly” the inadequacy of the existing policy limits, but still agree to accept them if promptly paid, it is going to be an uphill battle in any future “bad faith” litigation. 

But, even if you think the “bad faith”  is clear, here is where, again, the opposition’s mindset plays a role.  You must have a receptive audience at mediation.  Accordingly, send your detailed outline of your “bad faith” argument,  your relevant factual timeline of that “bad faith” and a “reasonable “settlement opening proposal,  BEFORE mediation.

(Yes, you may have to send this outline to your present attorney and representative, inclusive of your “criticisms” of them, but it must be done!)

Now that you have prepared by obtaining the interest (and attendance)of your “bad faith” opposition and have educated them sufficiently to obtain adequate authority, you must now do one of your best formal mediations.  It is your first and best chance to impress opposition personnel who have had no contact with you before!

You also need the help of your defendant insured!  While convincing their insurer, you must also be convincing the insured that you will prevail in excess of their coverage and they, as much as you, need to have the matter settled and now to avoid personal exposure! 

With the actual under-insured policy holder-tortfeasor present and listening, and hopefully represented by personal counsel in ADDITION to the counsel obtained and paid by the insurer (who knows their “new role”), you have a chance to impress both those professionals who will be facing you in the SECOND trial and their/your tortfeasor who is facing payment of a judgment greater than his insurance limits!

THIS is the time for the Powerpoint.  This is the time for the “trial” demonstration as to how you will prevail in BOTH cases.  This is the time for using the actual verdict form to be returned by the jury in BOTH cases.  Remember,  you are not only trying to convince your opposition of the bargain for the underlying claim, but the bargain in resolving, in advance of TWO trials, the entire dispute.

And, this is the time for the physical presence of competent, informed “Bad Faith” counsel.  (Of course, you know, all of the parties, including the attorneys, will be WITNESSES in the second case!) It is the “bad faith counsel” who must carry the day (if given the facts to do so!) AFTER the first judgment is obtained.  Thus, he/she must make this presentation.

Now is the time for the special “bad faith” counsel to clearly show the opposition why they will LOSE the bad faith case, somewhere in time in the future and at a far greater cost than would be available to them, voluntarily, at THIS mediation.

Unfortunately, by the time “bad faith counsel” shows up, much of the “predicate” really required for success in such second trial will have had to be done appropriately.  Accordingly, keeping the “bad faith” counsel fully informed (and not misled) is imperative.  (Obviously, this is why so many trial bar seminars are devoted to how to properly prepare for any such claim.) 

And, you can bet that one of the key defenses that the opposition will raise will include:  “why would the Plaintiff  have accepted the “insufficient” policy limits if tendered “earlier”, but will not now (or when it was tendered)!”  Be prepared for this!  If a future jury believes such a tender was rejected solely to “set-up” the insurance company, you likely cannot prevail.  A word to the wise.

Now is also the time for really aggressive negotiation.  You must signal reasonableness really early!  If you do not make the opposition interested, early, it will be a very short mediation.  (And, it will likely be shorter, anyway, due to the few number of attorneys that will really do the “homework” necessary for resolution.) 

(Note:  I am also presently in the process of preparing and article on some suggestions about this separate subject of negotiation of these matters, including options to your first goal, an outright global dollar settlement.)

In the end, to obtain a global resolution, the “bad faith” adjuster and/or their counsel, must be convinced that they will likely lose a significant judgment in excess of their policy limits, that their insured will likely either sue them over the excess (and, possibly the attorneys hired for the insured) or “cooperate” with the present defendant to the same purpose, and that likely, a future jury will agree that there was an unreasonable failure of insurance procedures that placed the underlying-insured in jeopardy.  (And, particularly, if punitive damages were reached because of such a failure!)

Once they are convinced of these simple matters, it is only a matter of arriving, jointly, with that dollar-bargain for them that is also one for the claimant!  Simple, huh?

In many ways, your pre-mediation efforts in “early bad faith mediations” are similar to those always recommended.  The difference is that while you might “skate-by” and achieve success in other kinds of mediations without these efforts, in “early bad faith” mediations, any lack of this recommended special effort  and the failure to consider these new techniques will likely require your trial of both cases.

Learning Mediation Negotiation Technique: First, Personal and Professional Credibility.

Negotiation is an art.  And, like learning any art, it begins with learning basic  technique.  Thereafter, it involves grouping and using learned, individual techniques that will foreseeably result in your greater chances of success.

And, such technique, first, begins with establishing your individual personal and professional credibility.

Your personal credibility should begin today, if you haven’t accomplished it yesterday!  It is never too late.  See, “Mediation Strategies:  Work On Your Personal Credibility to Increase Your Negotiation Success”,  March 9, 2011.

LIkewise, your professional credibility begins similarly with a constant pattern (and reputation) of professionalism.

There are many definitions of professionalism.  I know it when I see it and I know others do also even if descriptive words fail.  But, to me, simply stated, when I include, mentally, any individual as a professional of our  legal profession, that person embodies consistent honesty, courtesy, fairness, appropriate demeanor, intelligence, preparation, ethics, competency, and commitment to justice at any personal cost.  And, it is not by chance that it is the term “consistent”, that I place first.

Should you already enjoy such a position amongst your peers, congratulations.

Should you not yet enjoy such a history, it is not too late to build one.  And, mediation is a wonderful place to start.

Other than trial,  mediation is one of the few places that allow you direct, professional contact with not only members of the bar and your personal clients, but opposing lay-persons and other professionals who quite quickly can give credibility to your professionalism (or lack of it).

In mediation, you begin your professional credibility with your first interaction with each of your opposing mediation participants and you continue that impression-building as you depart their presence.

An excellent place to start is with a pre-mediation position paper sent to your opposition!  You know how much I believe in preparation for mediation.  There is nothing that “spells” mediation preparation better than a well-structured position paper, and, if you are the plaintiff, a well-considered opening “demand”.  And, it also fulfills my other repetitive suggestion that your opposition know, completely, your position before mediation begins!

Too few on both sides take the time to prepare such papers (to their detriment).  Among other signals, perhaps it means they are simply not prepared?   Of those who do prepare and use such papers, most send such a position paper only to the mediator (to their clear gain).  Mediators are human, like a judge receiving  advance law and argument from only one side before a hearing, it is difficult to ignore the weight differential.

But those who benefit the most from such pre-position papers are those who share this paper with their opposition.  Or, at least those portions that easily can be shared without compromising your mediation strategies.

In this day of computers, simply adding to your pre-meditation position paper to your opponent for the mediator or deleting from your paper to the mediator for one to your opponent, is so easy that it is hard to understand why it is not more done.  Or, again, does this lack signal a lack of preparation for mediation?

Use your opening statement to demonstrate your competence and your reasonableness.  And, never, never, mis-state either the law or fact of your case.

Understatement is a weapon of mediation, not a weakness.  And loss of credibility through mis-statement is usually incurable.  Leave the close questions for your opposition and learn from their position on these matters.

Next, I strongly suggest if you are the plaintiff you begin, at mediation, with an opening demand/offer that is within reason.  Or, if you are the/a defendant, an initial offer within reason.

And, if you really want to establish credibility, consider a unilateral decrease (or increase) from your pre-mediation position paper to begin your formal negotiations.   You would  be amazed at what such a “reasonable” tactic can do!

I could (and probably will) write an entire article on just the opening demands/offers (beyond those already written).  See, i.e.,  “Consider the Real Estate Market When Planning Your Next Mediation Negotiation”,  December 9, 2010.

But, suffice it to say, each time you finally resolve a matter, take the immediate opportunity of reviewing the path you took to get there!  If your ending resolution is nowhere near your beginning proposals, what does that say about your credibility on your next beginning?  Your opposition really does keep track of these things.

Next, consider negotiating with speed and significant moves.  Nothing says confidence in your position more than ignoring the relative, if any,  movement of your opposition and simply negotiating to your goals based upon your pre-mediation plan of negotiation.  Admittedly, it is difficult.  But, the better ones do it!  Of course, it also implies you have a plan.

Next, leave out the rhetoric. Please.

Do you know anyone you refer to as a “professional” who is abusive in any legal setting?  Sure, there are those who seemingly make money with such a technique.  But, privately, do you consider them professional?

Mediation, and I daresay, any legal setting, is no place for other than out working and outperforming your opposition.  Not, out talking them.  If you cannot resolve your dispute, courteously, than prove your professionalism by simply prevailing at trial.  Your reputation will be enhanced far more by what you accomplish than what you threaten.

Now, with each negotiation move, suggest intelligent, thoughtful reasons for that move.  Your opposition (and your mediator) may not agree with your position, monetarily, but at the end of the day, will remember the reasoning of your thought processes.  And, if resolution is not possible that day, those thoughts will go back with your opposition for re-thinking and likely will form the basis for any settlement that does occur.

Or, if the matter is tried, the recriminations that always follow.  In the end, everyone respects intelligence, patience and reasoning.

Next, the corollary of your thoughtful moves is the thoughtful evaluation, and understanding, of your opposition’s moves.  Unlike trial, you really do need “to walk a mile” in your opponents shoes.  And, you can signal your understanding, if not your agreement, by your own counter-explanations.

Next, leave your last offer available for a reasonable time and without rancor.  You may or may not be correct on your assessment.  And, if you must try the matter, your accuracy will soon be determined.  But, in the meantime, whether you ultimately prevail or not, your opposition, lay and lawyer, will be remembering your parting demeanor and final position.

Finally, be gracious for the effort of your opposition, whether you are “successful” or not.  True professionals can disagree without personal rancor to their opponent’s position.  Disagreements should be settled by trial, not personal animosity.

Life, and the practice, are a long time.  Be able to meet your opposition as professional “friends” the next time you meet knowing your treated them professionally the last time (and every other time) you met.  Trust me, they will recall you.  It is how they recall you that you control.

And, should you ultimately not prevail, also take that as a professional.  And, learn from it.  No one is “right” all of the time.

Negotiation is an art.  You just need to work at it to master its techniques for success.  Your mediation (and entire legal career) begins with and depends upon your personal and professional credibility.

Mediating the Medical Negligence Matter: Ten Major Differences. Part II: “The Next Five”.

Mediating a medical negligence injury claim is simply different.

In “Mediating the Medical Negligence Matter:  Ten Major Differences.  Part I: The First Five“,  (August 3, 2012) , we examined five of my foreseeable ten major differences between mediating any other personal injury case and one sounding in medical negligence. My first five included in Part I:  1) These mediations are used for everything except resolution 2) There are profound differences in timing these mediations 3) The only negotiation factor being considered is the likely outcome at trial  4)  Your best case must be fully supported and “in the file” of your opposition well prior to mediation and 5) Your entire time at mediation should be invested in reason and negotiation, not rhetoric.

There are at least five more major differences for you to consider.  In this Part II, I thus continue with the  numbering from my earlier article for continuity.

Sixth,  the actual parties play only a “barely ethical” part of the negotiation.

In any mediation, it is intended that only the parties will make the final decisions.  This is NOT (practically) true in medical negligence mediations!

On the Plaintiff’s side,  realistically only the plaintiff’s attorney will ultimately decide to resolve the matter or not.   Perhaps not totally ethical, but true, nevertheless.

These matters are so expensive and so technical that it is highly questionable that any  injured lay-party even can make the final decision.  And, of course, emotion and anger are affecting a parties judgment.  If the offer is insufficient to cover the costs and risks of the Plaintiff’s attorney, largely that attorney will have little choice but to try the matter.  One benefit to any claimant because of the contingency fee contract commonly used for such matters is the lack of concern over attorneys fees.  But, ironically, due to the same too-short statute of limitations held so dear by the medical profession, it is also almost impossible for any claimant’s attorney to withdraw.  In short, there is really no other choice but to progress to a verdict if given no option.

On the other extreme, for many of the same reason once a defendant’s offer is considered sufficient to be considered, “fair” to the claimant and then beyond a certain acceptable zone of risk for trial, it, again, will be most likely the Plaintiff’s attorney who will deicide that “enough is enough”.

It is the Plaintiff’s attorney who most understands the risk of any jury trial.  And, after all, it is usually the attorney’s money (and a large amount of time) at real risk.   And, it would be most unusual for any client to overrule their own counsel.  They likely had few attorneys who would even agree to represent them.  And, most claimants will trust their attorneys who, by that time (years!), likely have “bonded” with them by their sustained joining in the pursuit.

Similarly, for the Defense, and assuming an insurance carrier (few cases are pursued without one), under Florida law and most Florida professional insurance policies, no party-insured can either insist upon settlement nor upon trial.  Accordingly, once again, it will be someone other than the defendant-party deciding; almost always, the defendant’s insurance carrier.  Legally and practically, defendants have little choice.  Again, perhaps not ethical, but true.

In the end,  and certainly for mediation purposes, ultimately the one called upon to actually pay to the party that prevailed or to bear the economic loss should they not, will be the only one(s) really in charge of the final decision-making.

Number seven.  Neither side can ever achieve “full value” in resolution.

Statistically, the odds of winning and losing such matters are so heavily skewed, actually or in the minds of those who work repetitively in this narrow field, that even if the sides could agree upon the final value of any future jury verdict, the side with belief in their stronger case would always require a substantial discount (or bonus) of /to that presumptively “known” future verdict!

Likely this is another reason that most medical negligence trials settle after mediation.  Until the last-minute, there is still that unspoken belief that “things will still change” to the benefit of the “stronger” side.

Many such matters are settled the weekend before a trial is to begin (another uncertainty as so many such matters are continued, multiple times).  Many are settled only after the jury is visualized.  Another large group are settled due to daily offers that increase (or demands that decrease) as the parties daily evaluate the trial’s progress.  And, still another few are often still wrangling for a last-minute settlement  while the jury is literally deciding their fate for them.

In short, everyone wants to wait until the last to find every possible basis upon which they can justify, to others,  a voluntary resolution without testing what a given jury will actually do.

And, because all medical negligence resolutions are predictably always late, the ultimate net financial recovery to any prevailing party is predictably highly reduced by the unavoidable extra expense of the process, in money and emotion.

The fees of the attorneys, the costs in time and money that now must be deducted to arrive at the net to be recovered,  thus make every final resolution actually “insufficient”.  And because of the likely permanency of the injuries in such cases, the lifetime future impact and the emotion of the lengthy journey to resolution, it is the usual belief by all that “enough” is never really enough, regardless of who prevails.

Eighth.  “Intangibles”  matter more at these unique mediations than others.

If your opposition does not believe you will prevail before mediation, generally you are not going to change their mind at mediation.  See above.

On the other hand, if offers are to be made because the defense has pre-determined some exposure by trial, there are likely quite different factors being evaluated.  And, time spent upon these matters can count.

By this time, unlike most other personal injury claims,  it is not likely that fact or law drive your mediation, but “intangibles” still to be evaluated and carefully considered.  And they are extremely important to the decision-makers and every final decision made before closing negotiations.

Those intangible factors that now drive the negotiation in these unique cases  include:  1)  a “beauty contest” of anticipated jury acceptance  between the Plaintiff(s) and the Defendant(s); which side will be the better “liked”  2)  critical comparison of track records and demonstrated ability of  opposing counsel; not simply trial results, but preparation and skill as assessed by opposing counsel  3) contests between credentials and opinions of directly opposing experts  4)  common sense understandably of factual and professional complaints or defenses  and, 5) the potential of inflammatory issues arising at trial.

Inflammatory issues include:  1) the perceived degree (or lack) of claimant injury and future damages  2)  the age and gender of the claimant(s) or the defendant(s)   3) potential demeanor issues of any party or their counsel at trial, and  4)  party character issues anticipated to become useful at trial.

Many attorneys  also believe that race and ethnicity, particularly in some regions, are also a predictable factor that governs any outcome regardless of merit of fact or law.

Although “lightning can always strike in a bottle”, both sides will be predicting outcome by, among other matters, the history and ability of the opposing counsel and the intangibles of each case more than the objective evaluation of the case merits.

Such intangibles are important in any mediation, but are much more determinative in medical negligence matters where any “edge” may be the tipping point of resolution versus trial.

Ninth, mediation should be of a very short duration, but usually is not!

As mentioned above, because these matters are usually well determined in advance, you would think the formal mediation would be short.

However, as often there are multiple parties and certainly multiple competing interests that must be concurrently served, participants must be prepared (and patient) for, practically, a more prolonged session.

These matters  usually have multiple defendants.  Multiple defendants have multiple counsel.  Multiple defendants have multiple carriers with multiple insurance professionals.

Some defendants will be repetitive defendants.  Some will have never been sued.  Both subjects  for lengthy discussion.

Many of the plaintiffs’ counsel will have had multiple confrontations with at least some of the counsel and perhaps some of the insurance personnel.  All will have perspectives that are unique to themselves and their histories beyond the present matter, including with opposing counsel or opposing insurance carriers.

Anytime matters outside the merits of the particular cause are in play, the complexity of negotiation and even goals of the parties become blurred.  And, thus require time.

Many of the issues that arise in mediation in these matters arise for only the first time even though well-known before.  Conflicts amongst defendants, amongst counsel, amongst insured and insurer and others, although already existing,  almost never rear their head until mediation.   Another need for time to include in any global resolution.

And, in some matters, one side or the other may simply be intending to use mediation to “make a point” for a past transgression or for future reference.  A difficulty that is no small issue for any mediator!

It is thus, practically, rare for any medical negligence matter to be of a short duration, regardless whether ultimately to be resolved or not!

And, Number ten.  There is no middle ground;  the case will eventually settle or it will be tried.

The decision for resolution or not is quite unilateral to the defendants.

However, any mediation effort, other than defense offers to settle that permit settlement,  is a waste of time.    Neither side is going to quit., or as shown above, likely can!

And, the injured party, of course, will be making no offer to the defendant(s).  Accordingly, the defendant parties to such cases either come to mediation to resolve the matter well beyond “defense cost” or the matter will be tried.

The defendants will know, at mediation, of the reasonable future verdict range.  The defendants will know of the likely attorneys fees and costs, and all liens and bills to be paid before any injured plaintiff will receive a penny.  Thus, token offers that leave nothing for the injured party are a known waste of time as they simply do not even permit resolution.

And, in those rare cases where the defense wishes to avoid trial, ultimate (and hopefully rapid) movement to a reasonable offer is critical to any chance of success.  It is the only means to counter-act the negative feelings of the injured plaintiff and move them to the neutral, if not positive feelings needed to resolve such a matter.

Additionally,  the corollary to it not being useful for any Plaintiff attorney to undertake a weak case, is that if the Defense believes they may likely not prevail, because such cases almost always involve catastrophic injury or death (to justify the expense and risk), than not moving aggressively to their “best offer” short of trial, is equally a defendant’s waste of everyone’s time in mediation.

Unlike almost every other personal injury matter, few attorneys “dabble” in these matters.  And, those that do accept representation of an allegedly injured Plaintiff, accept them only with significant and permanent injuries and damages that would almost always be of the “six figure”  verdict value (or over) nature, if liability or responsibility for the injuries is found by the fact-finder.

And, the out-of-pocket “investment” that is required in such matters that foreseeably are  likely to be tried, can be also of the nearly same “six-figure” range.  This investment, coupled with the required expert already in-hand required to foreseeably (and predictably) be allowed to reach a jury, if not settled, make “token” defense cost offers useless.

Simply stated, the Plaintiff and the Plaintiff’s counsel previously considered and accepted the cost and risk of having to try the case before the representation was even accepted.

Accordingly, unless the Plaintiff is “permitted” a resolution by an ultimate offer that allows resolution, there can never be a resolution!

A surprise “bonus”: number eleven.   You can never be a failure if your mediation does not resolve your medical negligence dispute.

Few medical negligence matters resolve at mediation.  And, likely, anyone experienced in these matters is really not even expecting resolution at mediation!

There are simply major differences between mediation of a medical negligence matter and any other personal injury claim mediation.

You, however, can still profit from knowing these differences, in  advance , and using the mediation process for other benefits to your advantage.

Mediating the Medical Negligence Matter: Ten Major Differences. Part I: ” The First Five”

Litigating the medical negligence cause of action is simply vastly different from litigating almost any other personal injury claim.

All professional negligence (and most product liability) causes of action present unique professional challenges that other injury claims do not.   Their claim values, of necessity, must be significant to even be investigated.  Practical and professional, short and long-range, personal and professional conflict issues are predictably considerable. Their requirement of expert testimony and often,  special pre-suit procedures, increase the cost of funding such litigation exponentially compared with most other personal injury claims.  Thus, usually only very confident, very experienced and well-funded lawyers and firms can even contemplate accepting representation for these and other considerations.

However, within the professional negligence actions, most experienced attorneys will acknowledge that claims made against physicians and hospitals present the most professional challenge of all.  In addition to all of the above considerations, the emotions of any such claimant and any such professional defendant are and usually remain raw and very personal to the parties and even their families.  Patient-physician or medical facility relationships are forever severed.  The nature and extent of the injuries claimed, the cost of prosection or defense and a shorter than normal statute of limitation usually prevents cases properly initiated from being later dropped regardless of desire.

And add to these issues known at onset that forseeable internal struggles between a defendant and their own insurer too often require trial rather than allowing a voluntary resolution for collateral reasons often unrelated to the merits of the cause.

Sadly, many of these challenges were not so only a few years ago.  However, today, they continue as the direct result of a growing misunderstanding amongst both the legal and the medical professions entangled in economic and political struggles directed by outside parties who, frankly, use both professions against each other in neither profession’s interest.

However, it is exactly these profound differences that also offer significant differences in any mediation of such matters.

In general, at the least,  all of the repetitively recommended  normal steps to prepare  for and succeed  in other personal injury matters are a minimal requirement for any medical negligence mediation.  You know them:  planning, preparation, full relevant discovery, timely sharing of pre-mediation positions with the opposition, reasonableness in negotiation and reasonable expectations.

Some differences, however, are so unique to mediating medical negligence matters that they bear closer scrutiny to increase your chances of success, or at the very least, reduce your level of frustration, in mediating such matters.

Here are my top ten (10) likely differences for your consideration.  And, they are not necessarily in order of their importance.  In fact, your own professional experience will likely allow you to judge their relative order in your experience.

Number one, like many other complex matters, many parties, on both sides of a medical negligence case, will commonly use mediation for everything except final resolution.

It is the rare medical negligence claim that resolves at formal mediation.  Some would even suggest that this rare resolution success rate at any mediation implies that any mediation of this subject matter scheduled at any time is more than likely not for the purpose of actual resolution.

In Florida, at least two mediations are practically assured.  First, a “pre-suit” mediation, prior to filing suit, is legally required in any medical negligence matter as a pre-condition to  filing suit!  Few of these, if any, result in pre-suit resolution.  Although they doubtlessly reduce the number of such claims, it is the rare medical claim that is settled without a lengthy investigative and evaluative process that usually is simply not possible in the limited time available for such pre-suit procedures.

(And, if you have one of those alleged indefensible medical negligence claims (if one exists), chances are it is going to resolve , quickly and privately before mediation.    This is not the kind of case that one normally sees in medical negligence mediation.)

The second mediation (and often several more) will be invariably ordered by most Courts.  Medical tort cases almost always consume multi-week trial dockets.  And any judge is going to do all they can to obtain resolution, without trial, of any such time-consuming case.

These pre-trial mediations, too, statistically have poor resolution outcomes, at least at formal mediation. That does not, however, mean that any such mediation is a waste of time in such matters.

Many skilled attorneys use any mediation, for their own intended purposes, inclusive of inexpensive discovery, testing trial of strategies, visualizing an opponent party’s “presence”, gauging the opposing counsel’s preparedness, opening negotiation, and many other similar strategic goals.

And, as the majority of such matters still resolve by settlement before reaching a verdict, at the very least, it is the seeds sown at each mediation that most often ultimately result in resolution.

Second, of course, is the profound difference in the proper timing of the “final resolution” mediation.

Proper timing of any mediation is an art by itself.  I have written extensively on the subject.

But, simply stated, to have any chance of success in mediation, you simply must be mediating. literally, only DAYS before trial!  It is only the immediacy of having the ultimate decision made by “someone else” that brings the chance of resolution to such matters.

Frankly, there is no such thing as an “early final” mediation for medical negligence matters, i.e. to actually seek an early settlement.   See, “The Weaker Your Position, The Earlier You Should Mediate,  December 13,2010.   If you have such a weak Plaintiff’s position to fear trial in a medical negligence matter, you likely should never have undertaken the matter in the first place!

Further, the usual expected “early mediation settlement discount” to the Defendant is usually too much to even be considered by any Plaintiff.  See, “Mediation Tips:  Early Mediations Require Claimants Deep Discounting“, August 29, 2011

And, for any defendant, whose insurer is really the one in charge of resolution, the unique requirements of documented proof, reviewable by others in the file, and their required and detailed risk-analysis is never available sufficiently “early” for “early” resolution.

One possible exception includes presently increasingly frequent matters in which limited insurance for any one Defendant may seem to “force” a settlement. However, such limited insurance may not necessarily be a weapon for an early settlement.

One of the goals of any sensible Plaintiff’s attorney is settlement.  The odds at trial historically do not favor the Plaintiff.  And, any Defendant forced to either defend or pay personally will likely force a trial to use those odds.  Not always a good omen for economic success.

In my experience, the word, “early” is an oxymoron when used with medical negligence matters.  Both sides, in order have any realistic opportunity of resolution without trial simply require every bit of information they think will ever be available, and confirmed under oath, before they can or certainly will consider actually comparing their chances at trial.

Accordingly, uniquely, these particular matters require a mediation setting nearly always on the very “eve” of your confirmed trial date.

Number three, your mediation evaluation and the negotiation upon that evaluation is almost totally limited to an outcome-risk analysis: comparing any settlement/resolution option only against the calculated likely outcome of trial.

Such a late mediation setting, removing the usual economic incentives of “future” savings of costs or time or emotions, leave only the very limited evaluation alternative to either side:  Will any settlement offer likely be better than a trial outcome?

Most medical negligence defendants have no inherent desire to settle.  They usually actually believe they could not possibly be negligent.  They certainly know they had no ill intent. Their reputation (and confidence in dealing with life-threatening issues) is at stake.   They do not like lay juries sitting in judgment of them (they prefer their peer-review), but, by the way, statistically, up to 90% of these cases tried are successfully defended.  (These statistics, however, can be deceiving as “risky” cases are usually resolved voluntarily by many medical defendants.)

There are exceptions to settlement only upon merit, of course.  Likely the full subject of another day. But, for one example, insurance limits often play a crucial role in the role of the actual parties.  Deductibles and even self-insurer retention are also relevant.  

And, even the collateral issue of mandatory “reporting” of settlements, to a carrier, the industry or the State, play a role.

Most medical defendants will also have personal counse/ (known or unknown to the claimants)to push their personal agenda.  And, importantly, unless underinsured, should they lose, it is their insurer, not them, that will pay.

And, of course, there are more understandable practical issues:  their future insurance premiums rising with settlements paid and even their ability to practice in the future, at stake.  (See, (ill-advised?) Florida law regarding multiple adverse verdicts.)

In short, most competent Plaintiff’s counsel know to spend their mediation time and energy patiently demonstrating how, most likely, the injured party will prevail if the matter is tried and thus how, resolution, is in the “best interest” of the Defendant.

It is the only  real factor that will ultimately be considered at mediation.

Fourth, your very best side of your case must be fully supported, firmly recorded in the decision-maker’s file and completely understood by your opposition well prior to your mediation day.   If you do not do your pre-mediation homework, you will fail.

Like all other mediations, the decision to resolve or not and if so, in what range, is made well before mediation.  It is doubly so in medical-based claims.

You might be able to amplify, at mediation,on a few collateral matters such as damages, but if you have not convinced your opposition of the strength of your winning your case before mediation, you are simply not going to be able to do it at mediation.  Winning and losing in such cases are too dependent upon matters that simply cannot be adequately weighed during a limited mediation conference.

And, likely, even the damage portion of your case (or its defenses) will have to be thoroughly vetted by the opposition to have any validity given at mediation.

Among other unique matters, many of the insurers of medical facilities and persons are composed of “final decision-makers” who themselves are physicians and nurses.  Like so many other close societies, such “insiders” are often too-close to the product to be objective.  There is a reason many such companies have failed until turning over risk-analysis to those who more objectively evaluate such claims.

But, regardless, the culture of such companies is intense scrutiny of decisions, after the fact.  In other words, any decision to be made simply must have, in the file, vetted information to support any decision made.  Particularly if the decision is “close”.

Another unique factor is that the individual defendants and even corporate representatives, unlike other kinds of cases, are often “experts” themselves.  Overcoming their personal opinions (biased, of course) often become the tipping point in negotiations with that defendant and his/her carrier.

And strangely, monetary exposure, alone, is simply of much less importance in these claims than others.  More likely, it will be the perceived future effect upon the medical defendant, inclusive of reputation, costs of insurance and even licensing that will be considered, first.

In short, convince them before mediation or fail at mediation.

Number five.  You should plan to use your entire mediation time solely for negotiation, if there is to be any.

(On many occasions, the decision to not offer anything has also been made well in advance of your mediation.  See, above!)

Opening statement, for example, is more likely to become more a detriment to settlement than an aid.  Feelings are always raw.  And, as you will note from these observations, no one who is controlling settlement is listening to rhetoric!  You may as well get down immediately to finding out if your opposition has ANY interest in resolution without trial.

And, if you think anyone on either side will be intimidated by your opening statement presentation, you are sadly mistaken.   Both sides are already hurt, for different reasons.  And both are usually quite angry.  Nothing being said by any advocate present  is likely to even be believed, even if true.

And, no one is going to quit.  (One of the interesting effects of the “pre-suit” requirements!)

Your only purpose served at mediation is to determine whether any alternative to trial is even possible.  Accordingly, your best expenditure of time is in discovering this information, not in “trying” your case.

If you feel you must “get tough” wait until your post-trial period after winning!  Chances are you are heading for at least your first appeal, anyway.  (And, likely then an appellate mediation!)

You will thus have plenty of time remaining even if you do prevail at trial (the first time).

(In Part II:  “The Next Five”, we will explore five more major differences you need to consider if you are to be “successful” in mediating medical negligence matters.  Stay tuned.)

How to Mediate Attorney’s Fees, Part I: Hourly Fee Contracts

As much as lawyers hate to admit it, nothing is quite so dear to an attorney’s heart as an attorney’s fees.  And, face it, it is a critical part of our legal system.  Without being paid, the best lawyer in the world could not survive.  And, love them or hate them, without attorneys we would have no legal system.

This important subject of attorneys fees fills  numerous books.  (One very popular one in Central Florida is by one of our own former trial-court judges, James C. Hauser.  See,  Attorneys Fees in Florida, 2nd Edition. )  And, knowing the law about legal fee issues is always your best start at any review when the subject arises.  Thus such a well-ordered reference on the law is highly recommended to have readily available.

And, of course, any new practitioner should become familiar with the ethics of our profession concerning this subject, as well.  In Florida, the Florida Bar’s Code of Professional Conduct includes many important ethical guidelines about the subject.  A violation of the clear ethics of any fee agreement with a client is a serious matter in most Bar associations and in many states where other agencies govern lawyers.  Losing a client over a fee dispute is one thing; losing your license to practice is quite another!

But, increasingly, attorneys fees disputes are becoming a very popular subject for mediation.  Accordingly,  a quick and simple outline on the subject solely from the perspective of mediating such issues may be helpful to those who prefer to avoid issues or be prepared to counter them, should they occur.

There are essentially two basic types of fee arrangements between client and attorneys:  1)  payments made based upon increments of time required by an attorney, commonly referred to as an “hourly fee contract” and 2)  payments made as a percentage of recovery, if any, commonly referred to as a “contingency fee contract”.  (Notice the reference to “contract”.  Fee arrangements, for various reasons, should always be in writing and always signed prior to performing the service.)

For our Part I of this series, we will discuss the hourly fee contract.

There are many forums to discuss, question or examine, after the service is performed, such contracts, including simple discussions between the client and their attorney, contractual or Bar association fee dispute arbitration, litigation and increasingly, mediation.

My efforts will be directed toward the mediation forum of these matters.  l(My personal preference, of course.)

There are also generally two sub-classifications of fee disputes.  In any mediated-fee matter, the usual “opposition” to any fee dispute is either, 1) the “first party”  dispute, or  a dispute with a signatory to the contract, or 2) a “third-party” dispute where someone is called upon to pay the hourly fee contract who is NOT a signatory.

Such a a”third-party” dispute is the common subject, for example, in which one “damage” of a successful claimant in a collateral claim for other damages also requires a third-party defendant to pay the attorneys fees of the claimant.  (And, an ethical area of caution.   See,  “Attorneys Must Use Caution When Negotiating Fee Claims Concurrent With Client’s Interests”,  October 13, 2011.)

First party matters normally use pre-determined, contractual methods for resolution.  Accordingly, this article generally will address the most common professional mediation:  mediating a hourly fee claim required to be paid by a Third-party. (Although the principles for any hourly fee dispute, in general, are all quite similar.)

Actually, mediation issues of a fee dispute are quite simple.   And, includes the same subjects for discovery, disclosure, presentation and cross-examination, pre and during mediation.

First, there is the contract under review.  Second, there is the subject of the number of hours purported to have been performed.  And, third, there is the subject of the hourly rate of fee either agreed upon or likely to awarded for each hour performed.  Assuming the validity of the contract, knowing the hourly rate and the number of hours then allows simple multiplication of the fee due to the attorney who performed the services.

The issue most frequently the subject of dispute, however, is the “reasonableness” of the number of hours, and/or the “reasonableness” of the hourly rate (particularly when a third-party is asked to pay!)  You should know that this is also the ultimate test for any trier of fact, such as a judge, should the matter fail mediation!

And, then, there is that really tough issue, “the Multiplier“!  (And, its “reasonableness, etc.)

Although the term “multiplier” seems like something out of a Batman Comic , it is a very real legal issue that in those cases in which it applies (or arguably applies) can more often result in mediation failure than any other issue concerning attorneys fees.  However, it is rarely found in any written contract as a somewhat peculiar creature of law.

For our initial general review purposes of this overview, I will confine this explanation to the simplest definition of  a multiplier:  in essence, in some cases, as a matter of law, after the hours and hourly fee are multiplied, a court may award a multiple of that computation in arriving at the total fee to be paid by some third-parties.  Thus, the term, “multiplier”.

(Note:  Should your case be one in which a multiplier is due or alleged to be due, I must refer you to the ever-evolving case and statutory law on the subject.  Again, such an advanced and evolving additional subject requires more space than is practical in this limited forum.  To get an easy start, simply Google “LODESTAR”, or even “attorneys fees multiplier.)

Now that you have identified your central core issue(s), one or all three, of your hourly fee conflict, your pre-mediation effort begins.

As is true with any mediation, advance preparation for mediation of attorneys fee issues is critical.  And, sharing with your opposition the clearly relevant information to be reviewed and discussed is equally relevant if resolution is to be obtained at mediation.  Similar to any mediation, if the opposition has the same facts as the proponent, sufficiently in advance for the decision-makers to grant authority for resolution, the likelihood of resolution is high.

So high, in fact, that many such mediations are cancelled after such sharing and disclosure due to pre-mediation resolutions!

Unfortunately, (or fortunately for your Mediator) many will NOT prepare and many who do, will not share, timely.

And, often, attorneys fees issues are secondary to the all-important “entitlement” issue and therefore does not obtain the pre=mediation status it deserves.  And, it can often occur where mediation resolves entitlement to the surprise of the participants!

(“Entitlement” is, again, a full subject for another day to keep these article germane to basics.  Again, however, the essence of entitlement is that one must first prove they are due the fee before the fee need be computed, much less paid.)

Fortunately, such mediations, because of their limited and relatively objective subject matter, still have higher-than-normal resolution possibilities.

What preparation for mediation?  What proof?  (What sharing?)

Well, for mediation (and confining the subject to only the subject of the amount due), you should be prepared to produce:  1)  the contract supporting your fee claim and 2)  a written summary of your hours of service, preferably contemporaneously made, and preferably with reasonable description of the service performed for each time period requested.

That seems so easy, you say, so what are the disputes being mediated?

Sadly, many.

First, a number of issues arise simply as to the contract.  Such issues include the date of the contract, i.e., made when and under what circumstances.  Many attorneys still seem inclined to delay getting written fee agreements prior to performing services.  The reasons are myriad, but exist.  And, of course, it is fair to question any contract made “after the fact”.

And the hourly rate is always a chore.  And, the later the agreement, the more in controversy.  (Anything done “after the fact” will always face closer scrutiny.)

Common questions:  Was the agreement ever intended to be paid by the signatory or a punitive rate only to be paid by a non-signatory?  Has any monies at that rate been paid by the signatory? Is the rate commensurate with the level of experience of the attorney who performed the work?  Is the rate a common one charged by the attorney who performed the services?  Is the rate commensurate with other similar rates for similar services in the community?  What rate is or has been commonly found for such services or such an attorney in previous court-decisions?

But, if any third-party is asked to pay any hourly rate, their “best available” alternative will always include a court-hearing.  It is one thing to hold a client to a written contract.  It is quite another to hold someone to a rate that they would, themselves, never agree.  Thus, an objective standard, a hearing by a judge, is required if “reasonableness” is not found in third-party pay matters.

But, the most fertile area of question usually arises in the number of hours.  And questioning the documenting of the services performed for each increment of time.

Many attorneys, for example, still avoid contemporaneous billing; that is creating the billing almost immediately after performing the task.  Many such attorneys (really a problem in contingency fee matters) prefer to await the outcome before expending the time an energy of creating the bill.  As you might expect, such billing “well after the fact” raises legitimate concerns as to accuracy.  And, increasingly, courts have included themselves in such questioning.  ( Do yourself a favor, keep your hours contemporaneously!)

Another issue arising commonly is “block” billing or “standard billing”, where a standard chore is billed at a time that is “always” used or a pre-used document already in existence is used but billed as if created anew.

And there will always be those in opposition who suggest every service to be unnecessary or unreasonable.  One good technique is using your own billing, assuming less, as argument.  And, an affidavit of an “expert” (required for any court-hearing) might be a wise mediation investment.  Discovery, such as the deposition of the attorney-claimant is another option, but usually a better “bargaining chip” at mediation.

(That is why, for example, each person being forced to reveal their contract, hourly fee and hours performed MUST require their opposition to provide theirs for comparison!  Never fail to demand the equivalent of any relevant request of your opposition.  It is very hard to argue unreasonableness when your opposition has charged/done the same or more in the very matter in dispute!)

Once all of the facts are “on the table”, incremental negotiation of such contracts are usually quite straight-forward.  Like any other negotiation, each side will have a pre-determined point at which they will believe their ability to do better with a hearing, including the time and costs of such a hearing, will be preferable to the then existing mediation option.  A good mediator will get you there.

It is getting the exchange of proof that is the biggest task for the mediator.  Thereafter, as usual, pushing the parties to their best pre-mediation positions and then closing the deal is simply what we do.

At the end of the day, should mediation fail, essentially the exact same processes will be required of any fact-finder in any court.  That fact-finder will examine the contract, consider the hourly fee to be awarded, the reasonable number of hours to be allowed and simply do the math.  (They may be “aided” by “experts”, other attorneys giving opinions, but likely already have their own “opinions”, including about the reasonableness of any fee!)

My suggestion?  If you know what a third-party fact finder is likely to do, why not do yourself a favor and do it yourself!  Even with the multiplier issue, mediation of any hourly fee contract is always about “reasonableness”.

Mediation Strategy: A Mediator Retained Only As A Consultant!

In Florida, mediators who have been jointly selected to serve as the official mediator in any dispute must avoid any active uni-lateral “consultation”, (one-sided assistance to one party to the possible disadvantage of any other) with the parties to that mediation.

Accordingly, in avoiding even the appearance of any such one-sided advice, (as differentiated from, for example, mutual generic presentation recommendations for the mutual benefit of all of the parties) many mediators will often omit any advance conferencing with the parties.

(A mistake, I think, for the general purposes of all parties trying to find success by the mediation process.  And the subject of another day?)

Fortunately, most attorneys will always welcome any personal or telephone conference, in advance of mediation, with their assigned mediator.  Any advice is always helpful to finding resolution.

However, increasingly, better attorneys, serious about making their very best efforts at mediation resolution, are actively hiring independent uninvolved mediators and then actively consulting with them for unilateral advice in maximizing their mediation opportunities!

It is a new and available mediation tool that you should also consider.

Particularly in a state that mandates only “facilitating” mediators and frowns upon “evaluative” mediators in our mediation processes, such an independent view, from a non-serving “consultant-mediator”, allows one party a much wider and more varied service and advice regarding your upcoming mediation than only from the assigned mediator who must assist both sides, only generally, if at all.

You may be unsuccessful, this time, in obtaining agreement upon your “favorite” mediator at your next mediation.  However, that does not preclude you from using that same mediator’s assistance in helping you be better prepared for another mediator.

And, with the proper selection of such a mediation consultant, even assistance with evaluations of your position and recommendations on proven negotiation technique would be proper and valuable subjects to seek assistance upon.  Like judges who observe larger number of actual trials than do “reporter” services, so do mediators observe more resolutions than most results shared by other methods, including word of mouth.

Why not take advantage of such experience that should be available for the asking?

Such consultant services may also be quite reasonable, financially.  Many mediators would consider such occasional unilateral service, within reason, as simply another reasonable marketing tool to demonstrate their mediation experience.  But, even at a modest charge, similar to the use of any other consulting expert, the return on your investment should be well worth the cost (or it should not be repeated!)

And, since such a consultant service would and should be equally available to any side or any party, such advice by a professional mediator who is not retained to act as the neutral in that matter should be another valuable resource for any party who wished to increase their opportunity for success.

After all, it is the unspoken goal of every mediator, serving or not, to do anything that would increase the ability of either side of any dispute to find a voluntary resolution.  Or, at least, to reach that point that allows clear identification of the best alternative to trial.

There are a lot of practical, general suggestions available from those mediators who are daily witnesses to mediation techniques that work and those that do not.  Why would you not want to know a few more than you may presently know? (Or, at least read about them?)

Presently trial lawyers retain  consulting experts in almost everything they do, before litigation, in litigation and before and during trial.  Why would you not add this simple suggestion for consideration upon the most lucrative portion, mediation, of most trial attorneys’ practices?  Attorneys may make their reputation at trial.  But, better attorneys know they make most of their income from resolution, with or without mediation!

In short, paraphrasing as the U. S. Army once sloganed:  “Be all that you can be (at mediation)”

Another interesting strategic thought to consider:  Why not actively associate a skilled attorney-mediator as an additional consultant for your client to participate actively in your mediation?

Have you ever wished someone was sitting in the room with you at mediation who really understood mediation?  When it comes to negotiation, two heads are often much better than one.  And, what if that person was also able to assist you, totally unilaterally, with related legal issues as a legal consultant?

(Just make sure that attorney-mediator realizes that in that instance he may now actually be practicing law!)

Mediation is the major source of your litigation income.  As in preparation for any other part of litigation, actively using consultants to prepare you to better present your client’s cause, is something to consider carefully before NOT utilizing one.

Once again, just a few thoughts for expanding your consideration of how you might better use your own choice of a mediator.  (Particularly if that choice may not be serving in your upcoming mediation!)

And, the ultimate mediator of your next dispute may well thank you both!

Mediation Impasse: Failure or Opportunity?

Personally, I always think I have failed as a mediator in any mediation where any party even mentions that an impasse seems likely.  How did I allow such a suggestion to even be considered?

I know I have no interest in the outcome of the mediation, and certainly no control.  However, deep down, I really want the parties to find that common ground necessary for their voluntary resolution.  I also know the parties would always prefer a voluntary resolution without trial if only I can help them find it.  And, whether the first mediation or the third, I want that resolution during the mediation I am serving!

On occasion, however, I have found that resolution was not possible that day.  But, although a matter reached a technical impasse, i.e. the parties simply unable to agree,  I always believed that the “unwanted” ending, that day, did not necessarily imply that resolution was thereafter not possible.

Accordingly, many times, when I made my usual call, post-mediation, to follow-up a “failed” mediation to see if resolution efforts could still be made, I found that the mere passage of some small amount of time had apparently worked to allow the parties to resume resolution efforts.  And,  for some, literally the next day!

And with the number of “failed” mediations that almost always settle after any mediation “impasse”, but without the need of trial (usually, with the good start from their mediation efforts), it is clear to me that sometimes parties simply “run out of steam” at some mediations.  And when they do, resolution, that day, is simply impossible.

(You should probably know that I rarely “accept” that an impasse is necessary.  To me, the term impasse implies that no resolution is possible.  In reality, any case can find resolution before trial and most do, in or after mediation, as long as the parties keep trying.   Accordingly, I find even the term can become self-fulfilling by impliedly removing even any effort for future resolution.)

It therefore has seemed clear to me that sometimes, in some circumstances, when the parties were struggling,  a simple “time-out” was the best move for the parties (if not the mediator).  And, personally, I have not hesitated in even suggesting an adjournment on some appropriate occasions.

Until recently, however, I do not think I really thought about why I took such a step to rest the parties (or myself).  Or, why it sometimes led to a resolution shortly thereafter.

A recent article, “The Joy of Impasse “, by Robert Benjamin, a long-time attorney-mediator and author, really struck a chord with me.  And, particularly with regard to just these circumstances and these questions I had not raised in my own mind, much less answered.

In his article, published by the Professional Mediation Institute, in Volume XII, May 2012,  Mr. Benjamin suggested that mediators should consider some impasse as not a failure but an opportunity!

And, perhaps mediators should be more willing  to even suggest an impasse (more likely an adjournment?)  under the proper circumstances.

Among other proper circumstances, are those occasions in which it may be obvious that fatigue and the stress of a prolonged mediation are trending the parties away from resolution instead of toward one.   Or, where it appears parties are unable to “see the forest for the trees”.

He refers to such an “opportunity” as “the crack that lets the light in” .  He also suggests to approach that point as a “constructive and useful junction in the problem solving process” of mediation.

Ironically, I just recently experienced that exact “useful” phenomena in another complex mediation.  I just did not know, again, the “why”.  But, after the fact, this interesting article shed some important light upon the issue for me.  And, it’s teaching point will be quite helpful to me in the future.

With the multiple parties working very hard and for long hours late into the evening and on a Friday night, it gradually became apparent to me that our production (theirs and mine) was diminishing and might even be turning backwards.  Although unpopular with the parties, at the time, I suggested adjournment (both had also begun using the impasse word) to allow some rest and reflection upon the significant progress that had been accomplished with the day’s effort.  Both sides agreed; even though both sides thought the matter was finished.  I, however, really thought resolution was just around the corner.  However, I had also simply run out of ideas to close the remaining gap I felt was reachable.

Everyone went home, grumbling.

However, as I hoped, upon my followup the next day, to their own surprise (and even a bit to me), the parties began to find grounds for resolution.  And, they completed their complex settlement agreement early the next week, working through me with only a few phone calls and timely emails.  And, on some grounds previously soundly rejected!

I am now quite convinced that only common fatigue blocked the parties finding resolution, not any lack of their reasoning nor their obvious committed efforts.  And, it certainly helped for me to have a chance to collect my thoughts and refocus my suggestions.

But, what really surprised me, once again, was the relative ease with which final decisions were made after a night of rest that during the heat of our formal mediation seemed impossible to obtain.

As I read Mr. Benjamin’s article, I began to reflect upon how many times something similar had happened to me in other circumstances; simply allowing the parties to rest and reconsider old offers and rejections and progress made and opportunities still to be achieved.

Those successes after mere rest seem to be the basis of  his observation and article:  that everyone’s rational thinking (including any mediator) has limits imposed by simple fatigue.

How intriguing!  You mean fatigue can cause mental block and worse, bad judgment?  How novel.  I bet your mother (and for sure, your father) told you that a million times in totally different circumstances.

And yet, because the answer is simple, I frankly had not considered it as an answer to my previous “whys”.

And, particularly, as the article points out, because mediators spend their lives anticipating impasse, learning about how to prevent it and thinking of novel ways to try to get around it.   We are not trained to use impasse, but instead, try to cure it.  Entire books and seminars for mediators are devoted to how to first avoid and/or, then, if necessary cure impasse.  I have never attended one or read about (until now) how to potentially use an impasse to find resolution.

Actually Mr. Benjamin’s intriguing article is also much deeper in the science of the “why“.  Including how the brain works (and doesn’t work).

In essence, the brain needs to use both its left side and  right side separate  functions, and then periodic relaxation of the competing functions, to achieve the total insight of decision-making.  But, on occasion, conflict between the two sides attempting to make a decision simply  reach a point at which relaxation is not possible due to simple overload or fatigue.  And therefore, the necessary insight is lost.  At least for the moment.

It is at this point, where an “enforced” respite for the relaxation of the brain, then simply allows the brain the insight that was thus blocked prior to emerge to allow resolution to be found.  Simple, huh?

“Enforced” relaxation can come with planning or mediator direction.  Or, it can come simply because you have to quit for fatigue, alone.

As Mr. Benjamin’s article points out, haven’t some of your best thoughts come early in the morning or even in the shower when you were the most relaxed?  It is at this relaxed stage that your brain “solves” so many problems.  Some known and some possibly stored unconsciously until a decision is reached.

Thus, when impasse seems inevitable in any mediation, maybe it is really just an opportunity for you, not a defeat.  Maybe you (and your mediator) just need a “time-out” to find the decision you really need for your resolution.

I highly recommend that both mediators and attorneys and other mediation participants who frequently mediate read Mr. Benjamin’s article.  My synopsis does not do his article full justice.

However, good mediators will add this insight and Mr. Benjamin’s suggestions to their tools they use to help mediation participants find a resolution.  Informed mediation participants can now consider that “taking a break”  or a simple adjournment may be just what the doctor ordered to find the resolution that escaped everyone’s very best efforts at mediation.

The next time you reach an impasse while believing everyone really tried, you might want to consider such a respite as an opportunity, not a failure.  And, then you can accept why you can still keep trying, post-mediation, through your mediator or directly, to find your resolution.