Times have changed. In the past, mediators would open a mediation by asking for opening statements from lawyers for each party. Problem was, though, these were typically so inflammatory that a meeting that was supposed to be about resolution started with animosity. Sometimes, one side walked out right then, before the real mediation even started.
That’s why I have never invited opening statements at the start of a mediation.
Lawyers no longer want opening statements, either. I have even had lawyers ask that there be no opening joint session with all parties present. Rather, they wanted to work with me only in caucus, one side meeting with the mediator, keeping every communication confidential. The lawyers wanted to avoid the hostility that previously permeated the parties’ dealings.
Unless there is strong objection, I start mediations in a joint session. I introduce myself and go over logistics: important stuff such as where the bathrooms are and how we will handle meal breaks.
I also assure everyone that nothing bad can happen. The parties control the outcome, and there can be no result they did not agree to.
Everything that happens in mediation is confidential and cannot be used against anyone in a different civil forum. To emphasize that rule, while we are still in the opening joint session every person present signs a confidentiality agreement.
Then we typically break up into caucus.
The only person who has made an opening statement is me, the mediator.
Why do so many advocates stumble when it comes to preparing for mediation? Perhaps the most important thing a lawyer can do to prepare for mediation is to write a brief. Done properly, the process forces the writer to focus and get ready to negotiate. But many people do it wrong, mostly by providing irrelevant and obsolete information and not providing the data necessary to evaluate the claim. This problem is so common that I now instruct parties in my confirmation letter what to include.
The brief doesn’t have to be fancy. I don’t care if there’s a caption. An email message is fine. What would be helpful would be sub-headings for the categories shown below.
Transmit the brief at least seven days in advance of the mediation. This helps everyone prepare, including the mediator. Your brief may prompt a request for a document. Showing up with your brief at mediation wastes participants’ time and money as the mediator reads the brief. Late preparation can raise new questions and sometimes leads to adjournment and a second session to allow time for everyone to get answers.
Claims professionals, you know the mediation is coming up. Ask your lawyer to provide you a copy of the brief at the same time it is sent to the mediator. This ensures that you and your advocate are on the same page. You can also monitor the timeliness of the preparation.
The brief should briefly (that’s why it’s called a brief) recite facts such as the dates of injury, affected body parts and the injured worker’s date of birth.
State specifically if indemnity is open. If it is open, what do you think is the correct percentage and dollar amount? If less than 100%, what are the permanent disability advances to date? At what rate are they being paid? Is there any argument about apportionment, overpayments or retro? Do the parties agree on the DOI? If parties disagree on an issue, spell out your position. What does the other party say?
Copies of narrative medical reports (AME, QME, PTP) from the last two years will be very helpful, as will a print-out of medical expense payments for that period.
Is there a current (within the last year) MSA? If so, attach a copy to your brief. If the injured worker is a Medicare enrollee or is at least 62 1/2 years old, get a current MSA report and attach it to your brief. If you are not obtaining an MSA because the injured worker is undocumented or is otherwise ineligible for Medicare, say so in your brief. If you have obtained CMS approval, provide a copy.
Are there any other issues to be resolved? Mediations are most successful when parties are able to prepare for negotiation and do not encounter surprise issues.
Indicate if the brief is confidential or is being shared with the other party. You may choose to create two briefs, one for exchange and one confidential.
Merriam Webster defines “courage” as the mental or moral strength to venture, persevere and withstand danger, fear or difficulty. The easy way to litigate is to react to catalysts from outside sources, such as the court, opposing counsel or a medical emergency. The courageous negotiator is proactive. That includes knowing how to push a claim to settlement. Courageous negotiators have strong values, fully use their skills and purposely confront challenges.
Keep At It
Especially when claims drag on for years, it’s easy to lose sight of the goal. Here’s how to keep moving forward:
1. Keep evaluating. Courageous negotiators know what their case is worth. Don’t be afraid to talk about a big number—or a small one– if that’s really the value of the claim. The old saying is that lawsuits are not like wine—they don’t get better with age. Re-evaluate as new information comes in.
2. Make offers. Don’t ask, “Do you want to settle?” Make settlement offers– even ridiculous ones. Solicit counter-offers. Let parties know that you are willing to duke it out, but that you are also smart enough to know how to settle. Competent professionals don’t fight simply because they don’t know how to do anything else. Courageous people act even when they face the possibility of an adverse outcome.
3. Get help. Mediation is an effective way to settle cases. Talk to your mediator. A pre-mediation consultation is confidential even if the mediation never occurs. Information shared with the mediator can never be used, and the mediator cannot be subpoenaed. Unlike the parties who must deal with every detail of managing the case, the mediator concentrates on defining and resolving issues to reach settlement. Take advantage of that expertise.
Like the moon, mediation proceeds in phases. Here’s a primer on what happens when.
Phase 1: Investigation
The first phase of a mediation consists of fact-gathering and defining the issues. When the parties provide exhaustive briefs, time spent on fact-finding may be minimal. We can quickly pin down which facts and issues the parties agree or disagree on.
Sometimes, people agree on the facts but not how to interpret those facts. Ferreting out those disagreements is part of defining the issues. Usually, case resolution will turn on fewer than five issues.
As we drill down, disagreement about a fact may emerge, but a participant may be able to get the evidence to resolve the question during the mediation. Perhaps the information was not previously shared because it was not obvious that it was an issue, or someone may have been playing hide-the-ball. The employer’s side in a workers’ compensation case should bring a copy of the indemnity and medical payment print-outs to the mediation.
If no one can access the needed information during the mediation, we can usually put that issue aside and continue to mediate to resolution. But if that piece of the puzzle is critical, we might adjourn the mediation to allow time to gather those details, with a commitment to resume on a specified date.
Mediation is not the time to declare you need additional discovery. For purposes of negotiation, let’s assume that each side’s discovery efforts would produce information favorable to that party. If the case settles, no one need undertake that expense.
Phase 2: Working With the Numbers
Now that we know what we’re dealing with, it’s time to talk about value. Sometimes, parties have exchanged offers and demands prior to mediation, but often they were waiting for this meeting. If everyone was together in joint session until this point, now may be the time to go into caucus, separate private meetings with the mediator.
Once in caucus, parties can be candid about the strong and weak points of their case. Nothing said in caucus will be shared with the other side unless you authorize it to be shared. Moreover, per statute, no communication between any participants made exclusively within mediation can be used in any civil forum.
Occasionally, a party has a secret reason for wanting to settle that has nothing to do with the case itself. For instance, an injured person told me of plans to move to another country, and a defendant company was undergoing a fiscal review in preparation for being acquired and wanted to get this potential liability off the books. In each case, the information went no further than me.
While remaining neutral, the mediator gently helps each side form their offers of settlement and communicates them to the other party. Sometimes, this entails restating a party’s position to avoid unnecessary antagonism.
As information and offers are exchanged, parties converge on resolution. If everyone is unwilling to go one step further, and it seems resolution is close, the mediator may suggest a “mediator’s proposal.” This allows parties to settle while saving face and can reduce dissatisfaction within the attorney-client relationship.
Phase 3: Documenting the Agreement
We have a deal, and now everyone gets back together. Parties are encouraged to bring a draft agreement to the mediation. If they must return to their offices to hammer out the final document, before leaving the mediation everyone should sign a memorandum of understanding that recites the agreed-upon terms.
Almost all of my mediations end with agreement to a Compromise and Release. Parties often bring a partially completed Compromise & Release form, DWC-CA form 10214(c), to the mediation. That’s great. But when considerations prevent execution of a final agreement at the mediation, a Memorandum of Understanding, known as an M.O.U., can be invaluable.
After working hard to come to terms, you don’t want to let the passage of time blur people’s memories or minimize their commitment. Participants should not leave the mediation without a record of their agreements.
A Memorandum of Understanding memorializes the skeleton terms agreed upon at the mediation. Parties sign off at the mediation. The M.O.U. might specify a timeline or conditions.
Some settlements are complicated, requiring many addenda. Unanticipated issues may have arisen and been resolved at the mediation. Parties need to return to their offices to draft the final settlement document. The M.O.U. should specify the basic terms as well as deadlines for completion of the initial settlement document, exchange of revisions, and submission to the WCAB.
Some agreements are conditional, usually upon CMS approval of a Medicare Set-Aside allocation. Attorneys may address this issue by doing everything but the walk-through, including signatures, pending approval. This leaves a potentially dangerous loophole when unforeseen events occur during the waiting period.
Another way to document a conditional agreement is through an M.O.U. Unlike the agreement, which sits in a file drawer, an M.O.U. can specifically address the condition, including what will happen if the condition cannot be fulfilled. For example, if CMS comes back with a higher amount, and the parties do not assent to that amount within a specified time, they can agree to return to mediation.