Are you Prepared for Your Personal Injury Mediation? — Plaintiff’s Case

Abraham Lincoln once said that if he were given six hours to cut down a tree, he would spend four hours sharpening his axe. This may seem a bit anachronistic in the digital era but the essential point rings true; especially when it comes to mediation of personal injury cases.

Many attorneys see a day spent in mediation as not particularly heavy lifting: drafting a mediation statement and scribbling a few ideas on a legal pad. A day in mediation is a lot easier than taking an expert’s deposition and far, far easier than time in trial.

Comfort zones, however, can instill complacency. If we view mediation of a personal injury case as the client’s day in court, is there any room for casual lawyering? Let’s focus on how plaintiff’s counsel can prepare to make a personal injury mediation both meaningful for clients and successful.

Eliminate surprises.

While “Perry Mason moments” may have a place in the courtroom, they don’t help you in dealing with insurance adjusters who roundtable, value, and reserve cases weeks before the mediation. Update your medical specials well in advance, share tax returns and lost income information, and ask if the adjuster and defense counsel have everything they need to assess the case. If the case is grossly under-reserved, you are not going work miracles at mediation and the case is unlikely to resolve. Proper reserving is as much a function of advance work by plaintiff’s counsel as proper evaluation by the carrier.

Get liens under control.

Contact the lienholders to try to negotiate liens well ahead of the mediation. Let them know of the date and time of the mediation and get phone numbers where they can be reached during the mediation if lien issues become important. If you are dealing with CMS (Centers for Medicare and Medicaid Services), get a conditional payment letter ahead of time. If you have a large workers comp lien, invite the carrier to attend the mediation with counsel.

Make a demand well before the mediation.

This goes back to the concept of surprise elimination. Don’t walk into the mediation without a prior written demand on the table. Demands assist the reserving process. They also ensure that the claims person who shows up at the mediation is someone with appropriate settlement authority.

Prepare a negotiation game plan.

The best negotiators prepare hard. Instead of just coming up with a “bottom line,” it may be useful to work up three settlement ranges: (1) the “home run” settlement that would exceed expectations; (2) the good settlement that makes everyone reasonably happy; and (3) the difficult settlement that will be a challenge but possibly could work. It also may help to anticipate starting offers and responses, and to identify information that can be provided to the mediator to help in the other room. If there are key documents that refute anticipated defense arguments, prepare extra copies to provide to the mediator. Come to the mediation armed with a breakdown prepared of litigation costs to date and expected litigation costs through trial, so you can counsel your client on the true economic value of a settlement today versus taking the case through trial.

Meet your client in advance.

Most personal injury clients are unfamiliar with mediation and come into the process, at best, nervous and uncertain; and at worst, terrified. Sitting down with clients to explain the process in person a few days before the mediation is time well-spent:

  • Walk through the nature of mediation and how a typical personal injury negotiation may go.

  • Talk about the role of opposing counsel and the role of the mediator.

  • Cover the confidentiality of the process and the need to stay off social media.

  • Discuss issues that may come up in the mediation and potential settlement ranges.

  • Decide together if your client will have a speaking role in a joint session and what might be said.

  • Provide the client with a copy of mediation submissions by opposing counsel and go over these.

Bring along a structured settlement advisor.

If this is a large value case where a structured settlement might have a role, consider inviting your own structured settlement advisor to the mediation. There are capable people in this field who will attend mediations without charge and assist your client in understanding ways to invest a settlement to provide tax-free income, protection, and growth. While structures are not suited to every case, they can play an important part in a significant case.

Plan something to say.

Hopefully, you have shared a detailed written mediation summary with both the mediator and opposing counsel in advance of the mediation. This should be an advocacy piece that fully and fairly presents your case. Your written submission, however, does not take the place of oral advocacy. If there is going to be a joint session, use this as a chance to highlight “big picture” issues or to directly address issues that you know will be important to the defense. The most effective counsel do not use the opening statement for chest pounding and threats, but instead focus on being persuasive to their target audience: the adjuster. Credibility is just as important in mediation as in trial, so concede points you can’t win, but offer compelling reasons why the case creates risk for the defense side. Visuals or handouts can be effective in this process, if judiciously employed.

Mediations count.

They are an opportunity to give defense counsel and the adjuster a chance to see what they may face at trial. They are a chance to present your case in person rather than on paper. They are also a vitally important day for clients, who have a day to participate and decide whether to resolve their case or take it to trial. Taking the time to properly sharpen your axe can make a real difference in what could be the most important day in your client’s case.


This article originally appeared in the June 27, 2019 issue of Maine Lawyers Review. Reprinted with permission.

Finding a Seat at the Table: Allowing Non-Parties to Participate in Mediation

We know that the presence of true decision makers enhances the quality of the mediation process and the likelihood of resolution. What if those decision makers are not parties to a legal case being mediated?

Let’s take this scenario: Husband is the sole plaintiff in a contentious case arising from an auto accident. Counsel are not playing well together and agree on little. At a deposition early on in the case, an insurance adjuster wanted to sit in and plaintiff’s counsel refused to allow this. Routine requests for extensions have been refused and the case has been adversarial at every level.

The parties arrive at mediation, and the plaintiff is accompanied by his wife. Defense counsel, apparently seeking a little payback, announces that because the wife is not a party to this case, she is not going to sit in on the mediation process. Counsel for the plaintiff responds that if the wife cannot sit in, the mediation is not going forward. The mediator is faced with mediating before the mediation can even begin.

Let’s focus on what is occurring. Counsel are wrapped up in a personal power struggle potentially at the expense of their client’s interests and the success of mediation process. Technically, the defense position is correct: non-parties do not have “right” to sit in on a mediation. But is this really wise?

In my experience it is not. If the husband wants his wife there, it is probably because he would not be comfortable making an important decision about resolving his case without her input and participation. Her absence is going to create a problem. She may not be a “party” but she is a decision maker. If the husband is left having to consult with his wife by telephone during the mediation, the process suffers.

But what about confidentiality? Is there anything to stop the wife, not a party to the litigation, from posting on social media about the pitiful amount offered by the insurance company or the disparaging comments made by defense counsel during the mediation? This is a valid concern. If this a judicially mandated mediation, the court may not even have jurisdiction to police a breach of confidentiality by a non-party.

There are several options that can allow a non-party to participate while still preserving confidentiality:

  • Ask the non-party to execute the mediation agreement “as to confidentiality”;

  • Allow the party requesting participation of a non-party to assume full responsibility for confidentiality by both participants;

  • Request that the non-party sit out of any joint sessions, while being allowed to join in any private caucuses; or

  • Include a stipulation in the mediation agreement that non-parties will be allowed to participate subject to the same confidentiality obligations as the parties and consenting to the court’s jurisdiction should there be a breach.

I have seen many situations where the non-party ended up being a voice of reason in a mediation and was key to resolution. While it is possible that non-party influencers will make a mediation more challenging, it is usually worth the effort to find a seat at the table for everyone who counts.

In Praise of Brevity

There is wisdom in the old saying “talk less, say more.” We sometimes assume in speaking and writing that if a little is good, a lot will be better. Often, the opposite is true.

When sending materials to a mediator on an important case, it is tempting to overdo it. Do you attach the three critical doctor’s notes or do you provide the entire 250-page medical chart? Do you excerpt the one paragraph of contractual language that controls or do you err in favor of sending the entire 100-page licensing agreement? Do you summarize your client’s case in 15 minutes or go on for over an hour?

I think I speak for all mediators when I suggest that less is usually more.

And on that note, I am done.

Bracketing Your Way to Settlement

You either love brackets or hate them. For many years while I was representing clients in mediations, I thought bracketing was a waste of time. Now, in my role as mediator, I have come to believe that bracketing can play an important role in the negotiation process. Here’s why.

What is a Bracket?

Let’s take a familiar scenario where parties start far apart in a mediation. Each side thinks the other needs to “get serious” and tries to emphasize the point by making limited moves. Small moves beget smaller ones and soon the negotiation is headed nowhere. The gap between the parties seems insurmountable.

One approach to address this situation is a bracket, which is no more than a conditional offer: “We will make a significant move to X if you promise, in return, to make a significant move to Y.” Movement by one side is conditioned upon movement by the other.

Bracketing in Practice

Consider the situation where the demand is $200K and the offer is $25K. The plaintiff might suggest moving down to $150K if the defendant agrees to come up to $75K, creating a proposed bracket of $150K/$75K. The defendant, in turn, might reject that bracket and instead propose that the plaintiff come down to $100K if the defense goes up to $50K, resulting in a counter-bracket of $100K/$50K.

At this juncture the two brackets seem irreconcilable, but something important is occurring. The plaintiff is suggesting that the landing area for settlement is between $150K and $75K. The defense is suggesting, in response, that the landing area is between $100K and $50K.

If we compare the mid-points of the two brackets, the plaintiff might be signaling a willingness to go to $112,500 to settle while the defendant might be signaling a willingness to go to $75,000. If we look at the mid-points (bracketing the brackets), the parties might only be $37,500 apart.

If we now consider the mid-point of the mid-points (the mid-point between $112,500 and $75,000), is there a possibility the case might resolve at $93,750? Perhaps.

What Can Bracketing Accomplish?

  • Signaling Settlement Positions. As seen in this example, bracketing allows the parties to signal to each other and to the mediator where they hope to end up, but under the protection of a conditional offer. It is a way to share information with the other side in the face of an impasse. Whether any bracket is accepted is less important than the protected signaling it allows.

  • Ending a Stalemate. When the parties are stalled in a pattern of reactive negotiation, where making a point seems to be more important than making progress toward settlement, bracketing breaks the pattern and changes the discussion. It can instill hope into an otherwise hopeless negotiation.

  • Opening the Door to a Discussion about Settlement. In situations where brackets are exchanged, the mediator now may have an opening to talk frankly with each side about the “end game” of the mediation. As settlement ranges become clearer, settlement becomes an easier discussion.

  • Speeding up the Negotiation. There are times when a bracket proposed by one side is accepted by the other without modification or with a modest revision. This moves the case closer to resolution without a pattern of smaller and smaller moves, saving time and expediting resolution.

  • Keeping Parties at the Table. When parties to mediation get frustrated by smaller and smaller moves by the other side, they tend to get angry and talk about leaving the negotiations. Bracketing allows everyone to re-engage in the settlement process, diffusing anger and encouraging a sense of hope. All of this may allow a skilled mediator to find a path to resolution.

A Mathematical Trick

To use brackets effectively you have to be able to calculate mid-points quickly in your head. It took me a long time to figure out the simplest way to do this.

To find a mid-point, you add the two numbers together and divide the total by half. With a $150K/$75K bracket, the two numbers add to $225K and half of that is the mid-point of $112,500. With a $100K/50K bracket, the two add to $150K and half of that is $75K. While this may be obvious to many, it certainly wasn’t to me.

Conclusion

Brackets are not suited to every negotiation and they are not suited to all negotiators. However, they can be an important tool for moving a mediation forward and helping a stalled negotiation get back on track.

Reprinted with permission from the New Hampshire Bar Association. Originally printed in the New Hampshire Bar News on October 17, 2018: https://www.nhbar.org/wp-content/uploads/fliphtml5/42/flipbook.html#p=28

Negotiations and Love Songs: Dealing with Emotions in Mediation

Two disappointed believers
Two people playing the game
Negotiations and love songs
Are often mistaken for one and the same

Paul Simon, Train in the Distance

In characteristically cryptic fashion, Paul Simon’s Train in the Distance details the collapse of a relationship against the haunting backdrop of a train in the distance:  “Everyone loves the sound of a train in the distance / Everyone thinks it’s true.”  It is a song about optimism, failure and, maybe, just maybe, a bit of hope.

Then, as that far-off train whistles by, Simon drops the line:  “Negotiations and love songs / Are often mistaken for one and the same.”  Though I have listened to this song many times, I still don’t know what this means.  

The cynical view is that personal relationships, including the love songs, are all one calculated negotiation from start to finish.  But that doesn’t seem quite right.  

Instead, Simon could be making the point that after the collapse of a relationship, everything blurs together:  the love songs that characterized the good, early days, and the unhappy negotiations about custody, alimony and possessions, which follow.  Seemingly, the two are opposites and hard to confuse, but when a relationship falls apart everything becomes intertwined.

Those of us who make our living after the love songs go silent know the confusing confluence of emotion and rationality when personal relationships intersect with the law.  Divorce cases are the easy example.  We also see this with parents who pass the family home to adult children who are incapable of getting along without parental supervision.  Or trust litigation among family members who have stopped trusting.  Or suits between parents and children who have become estranged in ways unimaginable to strangers.

As lawyers we are trained to put the emotion aside.  We counsel our clients to look at the practical options and make good business decisions.  We try to stop the emotional tirades and move on to more familiar ground:  prospects for summary judgment, litigation costs and risk.  That is what we are good at.  What we are not so good at is understanding, much less dealing with, the emotional entanglement of these cases.

When we mediate cases involving failed personal relationships, emotions that may have been tamped down come rushing back.  Tears flow and memories intrude.  I have learned that this needs to happen.  Handing your client a box of tissue and awkwardly changing the subject is the wrong approach.  If someone is crying we have to find out why.  Only then can we begin to find legal solutions that will work.  

Some of the most gratifying moments I have had as a mediator are when parties with a destroyed personal relationship make it all the way through a very difficult mediation to a settlement, and then ask if they can talk privately with each other, without their attorneys present.  While their attorneys nervously pace outside, important words get said and damaged relationships begin to heal.  While rare, I have seen it happen more than once.  I’m hoping it will happen again.  

It’s kind of like a train in the distance.   

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Reprinted with permission of Maine Lawyers Review.

 

Why Insurers Miss the Boat by not Insisting That Their Adjusters Attend Mediations

There is a puzzling disconnect in the world of mediation.  Some insurers routinely fly adjusters across the country to attend mediations. Others seek telephonic participation wherever possible.  Puzzling further, is the practice of some insurance carriers who insist on sending an adjuster to observe a jury trial from start to finish, having earlier refused to allow that same adjuster to travel to a mediation that well might have resolved the case.

What is going on and why?

The explanation seems to trace to a contrarian attitude still found in some claims departments that mediations are a court-mandated headache that gets in the way of important work that needs to be done in the office.  Some carriers continue to view mediation as a necessary evil as opposed to an opportunity to resolve claims and close out files.   In my view, they have this completely backward.

Those of us who mediate know that personal participation increases resolution rates.  That alone should be enough to encourage personal attendance.  But the reasons to attend mediations in person go further.

Often, adjusters have not had a chance to meet claimants to size them up as potential witnesses.  Mediation creates that opportunity.

Personal attendance also allows claims adjusters to:

  • Interact with all parties to the mediation;

  • Communicate that the case is being taken seriously by both the insurer and counsel;

  • Assess the effectiveness of counsel in presenting the claimant’s case;

  • Use their knowledge of the file to help out counsel and the mediator;

  • Work as a team with defense counsel;

  • Provide a separate set of eyes and a separate perspective as negotiations unfold; and

  • React nimbly to what is taking place during the mediation.

While many courts encourage or require personal attendance of decision makers at mediations, those rules should not be the driving force here.  Insurance carriers who are serious about effective claims handling should be present during of the single-most important day in the life of a lawsuit -- not the day a case goes to the jury, but the day when the claim can resolve at mediation without a trial.   

The investment in time and effort is worth the price.  If you have doubts, just ask a mediator.

 

Civility as a Negotiation Strategy

When I teach Negotiation, I am sometimes amazed at how much I learn from the law students I am supposed to be teaching.  A good example is the perceptive observation by one of my students that “good people skills should be the low-hanging fruit in a negotiation.”  

The point is this:  While many aspects of negotiation are difficult, the seemingly easiest is just working well with others -- being polite, acknowledging opposing viewpoints, showing respect and paying attention.  These, and other active listening skills, should be a given in any negotiation, setting the stage for effective communication, information sharing and working together toward resolution.

Most of us who mediate see occasional lapses in these most basic undertakings from otherwise capable counsel:  answering cell phones in the middle of a mediation; remaining on the phone when a mediator returns to the room; or worse, typing on a phone while opposing counsel is delivering opening remarks.  Phones are not the only culprit:  eye-rolling, head shaking, derogatory comments, and interruption of presentations all can set a negotiation on a backwards path.

Civility can be as simple as thinking to ask the other side if they would like to join in a food order if a mediation is going into evening hours.  If clients or counsel have a deadline by which they need to conclude the mediation, mention this early and explain the reasons instead of springing this on the other side at the last minute.

Bad manners ultimately communicate a lack of respect.  They do not encourage compromise.  Instead, they have a polarizing effect, driving parties with conflicting positions further apart.  They elicit visceral responses, increasing the perceived areas of dispute and undermining the effectiveness of the boorish party.  Rudeness is not persuasive.

If parties honestly want to explore resolution in a negotiation setting, people skills should be the easiest part of the process.  Good manners, social skills and professionalism should be as important as our position papers.  Civility is the low-hanging fruit that enhances the effectiveness of negotiators and facilitates meaningful conflict resolution.

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Thanks to William R. LaBarge, J.D. Candidate at Vermont Law School, for inspiring this post.

 

 

Trials: a Failure of Lawyering?

In a recent mediation, an attorney shared with me the interesting comment that: “Trials are the result of failed lawyering.”  While that may overstate the case, it struck me as a pretty wise perspective.

While trials have a sacred place in our constitutional, historical and jurisprudential legacy, for most clients they are expensive and terrifying, with uncertain outcomes.  They are a roller coaster with a propensity for ejecting riders from great heights.   

As counsel, we are somewhat inured to the terror of public speaking.  We forget what it is like for a client lying sleepless at 3:00 a.m. facing the prospect of being cross-examined in public the next day.  If you give most people the choice of:  (1) being up in front of a judge and jury for hours answering a lawyer’s questions, or (2) being locked into a dark basement full of snakes, they start asking how big the snakes are.

I have taken a lot of clients through trial.  Some have had good outcomes.  Not a single one has ever said:  “I hope we can do this again soon.”  

So, how do we help clients resolve serious disputes without the torment, delay, and cost of trial?  

  • We become better listeners, trying to learn what the client values instead of what we, as attorneys, may value.

  • We become better negotiators, looking for convergent interests, creative solutions and opportunities for resolution short of the trial process.

  • We treat mediation seriously, bringing prepared decision makers to the table and working hard to find a path to resolution.

Trials may constitute the pinnacle of our professional achievement as attorneys.  In most situations, however, taking a case through verdict may represent a failure of our most important duty: to protect and assist our clients.
 

 

The Law of Liaring: Truthfulness in Negotiation

A Clash of Cultures

When attorneys negotiate for clients, a clash of cultures occurs.  Lawyers are bound by overriding ethical obligations of candor and truthfulness in their dealings with others.   Negotiators, on the other hand, work in arena where overstatement, "puffing," and even outright deception are often employed to achieve better outcomes. 

What can an attorney do, and more importantly, what should an attorney do when the angel on one shoulder counsels candor and the devil on the other shoulder insists: "Get the best settlement at all costs"?

Governing Ethical Rules

The first place to turn is the Model Rules of Professional Conduct.  Rule 8.4 sets forth a broad prohibition against conduct involving "dishonesty, deceit or misrepresentation."  Rule 4.1 further specifies that an attorney may not "make a false statement of material fact or law to a third person."

Some helpful guidance can be found in ABA Formal Opinion 06-439 which focuses on a lawyer's ethical duties while negotiating in a mediation.  Opinion 06-439 reaffirms that a lawyer cannot make false statements of facts material to the dispute.  However, it recognizes that "puffing" or "posturing" in a negotiation is acceptable -- even if less than forthcoming -- provided no material facts are misrepresented.  For example, it states that a prosecutor cannot claim that there is an eyewitness to a crime to encourage a plea, when no such witness exists.  However, a prosecutor seeking to obtain cooperation from a witness is not obligated to disclose at the outset of discussions that he or she is willing to grant immunity.

Opinion 06-439 concludes that, in the context of mediation, "statements regarding a party's negotiating goals or its willingness to compromise, as well as statements that can fairly be characterized as negotiation 'puffing' are ordinarily not considered 'false statements of material fact' within the meaning of the Model Rules." 

The Duty to Speak Up

The duty to not make false statements of material facts sometimes includes an affirmative duty of disclosure.  Opinion No. 06-439 references an earlier opinion, Formal Opinion 95-397, which concluded that an attorney involved in settlement negotiations for a personal injury lawsuit could not conceal the fact that the client had died. Obviously, death, which terminates pain and suffering as well as future medical expenses, is a highly material fact in settlement of an injury claim.

Similarly, if an attorney has asserted a loss of consortium claim for an injured party's spouse but discovers just before mediation that the parties were not married until after the accident, there would be an affirmative obligation to correct facts.  Likewise, a defense attorney cannot affirmative represent that there is $100,000 in available insurance after discovering a $1 million umbrella policy providing additional coverage for the claim.

In short, it is not enough to remain silent when silence itself would create or perpetuate a misrepresentation of facts that the other side would deem material to the negotiation.

Practical Approaches

One useful way to identify the ethical dividing line is to focus on facts versus opinions:

  • You cannot represent that your client is restricted to a wheelchair following an auto accident when you have seen your client walk into your office.  However, you can still offer an opinion that your client's injuries are very serious and have had great impact on your client, and that the case will have great jury appeal. 

  • You cannot claim that your business client is insolvent and can't afford a settlement when you just handled a successful IPO that eliminates the client's financial worries.  However, you can still argue that a demand is exorbitant and that there is no way this case is going to resolve if that is what the other side is looking for.

Conclusion

A certain measure of hyperbole is an expected part of any negotiation and can occur without crossing the line into dishonesty and ethical peril.  However, just because a lawyer may ethically engage in some level of "puffing" does not mean that a lawyer is obligated to push the ethical boundaries as a negotiator.  Ultimately, an attorney's ability to achieve great negotiated outcomes for clients is more connected to personal reputation than a willingness to go right up to the ethical line.

Each attorney needs to find a comfort level with his or her approach to negotiation that protects clients, but also safeguards one’s personal reputation and allows restful sleep at night. As Warren Buffet once said:  "It takes 20 years to build a reputation and five minutes to ruin it."  No negotiation is worth that price.