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Do it right – do it once – get it settled

Do it right – do it once – get it settled

Source: Consumer Attorneys Of California
Date: January/February 2015

Michael D. Ranahan, Esq. Michael G. Ornstil
16 FORUM January/February 2015 © Consumer Attorneys Of California Mediation INTRODUCTION Multiple mediation sessions in the same personal injury case have become com- monplace in recent years. This trend frustrates both counsel and parties, and increases the amount of time and money spent. There are actions counsel can take to maximize the possibility of a productive and successful mediation, and minimize the chance of needing multiple sessions. Whereas the majority of suggested actions are taken before the mediation, there are steps that can be taken during and after me- diation to increase the likelihood of settle- ment. The list of actions discussed in this article is not intended to be an exhaustive one. However, our experience indicates that if the suggested pre-mediation, media- tion, or post-mediation actions are taken, you will increase the chance of settling your client’s case in one session. PRE-MEDIATION Communicate With Opposing Counsel The single most effective thing you can do prior to a mediation to ensure its suc- cess is also the simplest thing we do as attorneys – talk to one another. Prior to scheduling the mediation, or a few weeks before the mediation takes place, you should check in with each other to gauge the likelihood of a productive mediation. If I’m plaintiff’s counsel, the first question I would ask defense counsel is, “Are you going to have the claims adjuster or the true decision-maker at the mediation?” If the answer is “yes,” that’s encouraging. If a “no” answer is received, that should lead to a discussion of whether it is possible to get the decision-maker at the mediation and if not possible, whether it makes sense to go forward with the mediation. If I am defense counsel, my first question would be, “Do you have a demand for me now and if not now, can you get me one well in advance of the mediation?” As discussed in detail below, obtaining an early demand is critical to getting cases settled at mediation and it is wise to get a commitment as to when a demand will be provided. During pre-mediation conversations, counsel can and should explore, without debating the issues or discussing case value, whether the case is truly ripe for mediation. They can discuss whether each side believes it has the information needed to evaluate the case. Maybe you learn that there is a key witness who needs to be deposed prior to mediating, or one party is waiting to receive a medical or consultant’s report. You can discuss whether there are any known impediments to settlement. If yes, you can defer the mediation. If no, you can report back to your respective clients that the other side indicated it is ready to be serious about mediating. For some reason we have moved away from picking up the phone and talking to our opponent. Perhaps we have so many means of electronic communication that we have stopped really talking with each other. Or maybe we rely on the mediator to initiate a pre-mediation call and if the mediator does not take the initiative, it does not happen. A 15-minute phone call can be very illuminating in determining whether a case is truly ready to mediate, and whether the mediation is likely to re- sult in meaningful settlement negotiations. Mediation Timing Selecting the right time for mediation is one of the keys to getting cases settled at mediation. If you mediate too early, you risk the case not settling due to the lack of information. Mediating too far along in a case and you risk the case not settling because the parties have become emotion- ally and financially invested in taking the case to trial. When is the ideal time to mediate? There are no set rules or guidelines to tell you when to mediate, and each case is different. Generally you want to strike the delicate balance between mediating early enough Michael D. Ranahan is a JAMS neutral, based in San Francisco with more 20 years of experience, specializing in personal injury and has handled more than a thou- sand cases to conclusion. He has participated in hundreds of mediations or arbitrations involving personal injury matters and is well-versed in the coverage issues that often come into play. He can be reached at mranahan@jamsadr.com. Michael G. Ornstil is a JAMS neutral based in San Fran- cisco. He has mediated and arbitrated more than 4,000 cases, specializing in mat- ters involving personal injury or wrongful death. He can be reached at mornstil@ jamsadr.com. Do it right – do it once – get it settled By Michael D. Ranahan and Michael G. Ornstil© Consumer Attorneys Of California January/February 2015 FORUM 17 when the parties have not spent large sums of money, yet late enough that each side has sufficient information to make a proper evaluation and risk assessment of the case. We believe that early mediations, coupled with the parties being proactive in exchanging information, even voluntarily, provide the best opportunities to settle at mediation. Dealing with Liens In almost every personal injury case there is a lien that needs to be dealt with. It could be a medical lien or a lien by the worker’s compensation carrier. These lien holders can be integral to negotiations as they impact plaintiff’s ultimate net recovery. Dealing with lien holders in advance of the mediation and getting an idea of what kind of deal can be struck can significantly enhance settlement prospects. It is frustrat- ing for plaintiff and defendant to have their negotiations stalled by having no sense of what needs to be paid on the medical liens or to the worker’s compensation carrier. Conversely, when you enter mediation with a good sense of what it will take to satisfy the liens, negotiations between plaintiff and defendant can move forward unencumbered by uncertainty of what plaintiff’s net recovery will be. In this day of Medicare liens and un- responsive medical lien holders, it is not a simple matter to get a pre-mediation read on where these liens can be compro- mised, and that is why it is incumbent to contact lien holders well in advance of the mediation. It may be the case that you only get a general idea of what the lien holders will accept, but that’s better than no idea. Early Exchange of Thorough Briefs It is critically important to the settlement process that parties exchange briefs, and do so in sufficient time prior to the media- tion such that the information contained in them can be digested, discussed, debated, and most important, acted upon. From the plaintiff’s perspective, the mediation brief is important to give to the defense because it should contain the plaintiff’s liability and damages analysis, and also include a settlement demand. It cannot be overstated how important it is to provide the defense with a pre-mediation settlement demand. The vast majority of personal injury cases have an insurance carrier involved and it is common knowledge that carriers need time to evalu- ate settlement demands and determine the amount of authority placed on the case. Receiving a settlement de- mand at the mediation, or just days before it, particularly in cases with a six-figure or more value, gives the carrier insufficient time to discuss the case internally and make its decisions. Simply stated, late demands minimize the prospects of settlement. The bigger the case, the more lead time should be given between service of the mediation brief and the mediation date. A mediation brief con- taining a settlement demand, and the basis for it, served weeks before the mediation, will serve all parties well. From the defense perspective, it is equally important to advise the plaintiff of its position on the issues of the case in advance of the mediation. Is liability disputed? Are there issues of comparative fault? Is there a statute of limitations is- sue or other affirmative defenses? Where does the defense stand on injuries and damages? How about insurance cover- age or collectability issues? These are all critically important to the settlement value of a case and the mediation is neither the time nor place for the plaintiff to be first informed of where the defense stands. Plaintiff’s counsel needs to educate their client in terms of the strengths and weak- nesses of the case and the risks involved in not settling. The defense mediation brief provides plaintiff’s counsel with information needed to form the basis of an informed conversation with the client. In addition, a timely-served defense brief provides plaintiff’s counsel an opportunity to address the issues raised by defendant so a legitimate debate can take place at the mediation. Conversely, if a critical issue is raised for the first time during mediation, there may be no ability to meaningfully respond to it and settlement negotiations may have to be put on hold while that issue is further explored. We receive confidential mediation briefs all the time. While we recognize that there is information best kept confidential, in the typical personal injury case most everything should be out in the open. Confidential briefs should be the excep - tion rather than the rule. If confidential information needs to be imparted to the mediator, that is best done by serving two mediation briefs – one brief served on your opponent and the mediator, and a separate “mediator’s eyes only” brief. Communicate With Mediator To ensure a productive mediation, ex par- te contact between counsel and the me- diator is not only permitted, but strongly encouraged. Not all mediators take the initiative to check in with counsel before the mediation. But mediators are happy to field calls from counsel or set up a call if requested. There are some cases where a pre-mediation call is simply unneces- sary, but there are also cases where a brief It cannot be overstated how important it is to provide the defense with a pre- mediation settlement demand. © Neustockimages Early mediations, coupled with the parties being pro- active in exchang- ing information, ... provide the best opportunities to settle at mediation.18 FORUM January/February 2015 © Consumer Attorneys Of California conversation with the mediator could go a long way. For instance, if there is a client control issue, it would be wise to let the mediator know in advance. If there is a hot button issue in the case that needs to be handled with finesse, it is wise to alert the mediator. And if there is confidential information that may affect the case value or negotiations, the mediator can be made aware of this. Many of these matters can be covered in a separate confidential me - diation brief, but it is equally effective to discuss them over the phone and obtain the mediator’s feedback, reaction and sugges- tions on how best to proceed. MEDIATION Avoid Surprises As seen from the discussion above, many of the steps to ensuring a successful media- tion are measures taken well in advance. But there are several things you can do during the mediation that go a long way towards settlement. First, if there are terms that need to be included as part of a deal, they should be brought up for discussion early in the mediation. Mediators loathe the “oh, by the way, we need …” settle- ment term thrown in at the end as you write up what you thought were the settlement terms. These so-called “throw-in” terms take the form of a demand for confiden - tiality, or a request for payment within a very short time, or including Medicare as a payee on the settlement draft, etc. There are times when such terms are actual deal- breakers for one side or the other. If they are important enough to insist upon at the end of negotiations, they should be brought up early. If, for instance, a defendant is going to insist upon confidentiality, they should mention that at the outset and even bring a sample confidentiality provision that would be acceptable. Likewise, if plaintiff’s counsel is adamant about not agreeing to any confidentiality provision, that should be mentioned early in the ne- gotiation process – even if defendant has yet to raise the subject. What would be wrong with defense counsel, at the beginning of a mediation, providing plaintiff’s counsel with a copy of the settlement agreement (obviously with the settlement amount left blank) they would want plaintiff to execute if settlement is reached? This is not a sign of weakness or presumptuous, and would provide plaintiff’s counsel with the oppor- tunity to review it during the course of the day and raise objections, if any. Be Flexible and Patient During mediation, counsel can increase the likelihood of reaching settlement by being patient and flexible with the negotiation process. Negotiations can sometimes be slow and even tortuous with “ambitious” (high) early demands and “modest” (low) initial offers. We all know that the mean- ingful numbers are the ones at the end of the day, not the beginning. But some at- torneys and their clients get impatient and frustrated with the slow negotiation dance and negotiations can break down. Let the mediator continue to work the numbers and trust the process. With this said, there are times when negotiations are best served by deviat- ing from the traditional demand-offer exchange. The mediator may ask you to do something a bit different in order to speed up the process, determine if the case is settleable, or break an impasse. Such requests can take the form of asking you to make a big move if the other side makes a big move, throwing out a bracket, or considering a mediator’s proposal. You should enter mediations expecting that you may receive such a request and be prepared, flexible and creative. POST-MEDIATION Despite best efforts and intentions, some cases do not settle at mediation, even though all or most of the steps outlined above have been followed. The critical next step is to figure out why a settlement was not reached. You can and should tap the mediator’s brain and solicit the me- diator’s thoughts on why the case did not resolve. This can be done at the end of the mediation with the goal of formulating a plan to focus on the issues separating the parties. Alternatively, each counsel can contact the mediator individually following the mediation, and while it is fresh in their minds, to obtain the mediator’s insights. A mediation is obviously successful when it ends with a settlement. But a me- diation is also successful in the absence of a settlement if the parties leave the mediation with a good understanding of where they agree and disagree, and a good understanding of what prevented the case from settling. It is also successful if they come out of the mediation with a plan that will maintain any settlement momentum created at the mediation. Lastly, most mediators want every one of their cases to ultimately settle. Take advantage of mediators’ willingness to stay involved by keeping them informed of developments and asking them to pick up where the negotiations left off. CONCLUSION The measures outlined above are not un- usual and should not come as a surprise. Distilled to the basics, we urge counsel to communicate with each other, lien hold- ers and the mediator in advance of the mediation. Communicating with these individuals should confirm that the case is ready to mediate and that the parties have enough information to negotiate productively. While the actions outlined do not guarantee settlement, they certainly improve the odds of settling the dispute at the first and only mediation. n DOUG deVRIES Mediator Focusing on complex cases, including insurance coverage and bad faith. Former CAOC President. Statewide – JUDICATE WEST – No Travel Charges. Contact: Pam Pickering, Case Manager E: pam@dkdmediation.com T: 916-473-4343 W: www.dkdmediation.com
Multiple mediation sessions in the same
personal injury case have become commonplace
in recent years. This trend
frustrates both counsel and parties, and
increases the amount of time and money
spent. There are actions counsel can take
to maximize the possibility of a productive
and successful mediation, and minimize
the chance of needing multiple sessions.
Whereas the majority of suggested actions
are taken before the mediation, there are
steps that can be taken during and after mediation
to increase the likelihood of settlement.
The list of actions discussed in this
article is not intended to be an exhaustive
one. However, our experience indicates
that if the suggested pre-mediation, mediation,
or post-mediation actions are taken,
you will increase the chance of settling
your client's case in one session.
PRE-MEDIATION
Communicate With Opposing
Counsel
The single most effective thing you can
do prior to a mediation to ensure its success
is also the simplest thing we do as
attorneys – talk to one another. Prior to
scheduling the mediation, or a few weeks
before the mediation takes place, you
should check in with each other to gauge
the likelihood of a productive mediation.
If I'm plaintiff's counsel, the first question
I would ask defense counsel is, "Are you
going to have the claims adjuster or the
true decision-maker at the mediation?" If
the answer is "yes," that's encouraging. If
a "no" answer is received, that should lead
to a discussion of whether it is possible to
get the decision-maker at the mediation
and if not possible, whether it makes sense
to go forward with the mediation. If I am
defense counsel, my first question would
be, "Do you have a demand for me now
and if not now, can you get me one well in
advance of the mediation?" As discussed in
detail below, obtaining an early demand is
critical to getting cases settled at mediation
and it is wise to get a commitment as to
when a demand will be provided.
During pre-mediation conversations,
counsel can and should explore, without
debating the issues or discussing case
value, whether the case is truly ripe for
mediation. They can discuss whether each
side believes it has the information needed
to evaluate the case. Maybe you learn that
there is a key witness who needs to be
deposed prior to mediating, or one party is
waiting to receive a medical or consultant's
report. You can discuss whether there are
any known impediments to settlement. If
yes, you can defer the mediation. If no, you
can report back to your respective clients
that the other side indicated it is ready to
be serious about mediating.
For some reason we have moved away
from picking up the phone and talking to
our opponent. Perhaps we have so many
means of electronic communication that
we have stopped really talking with each
other. Or maybe we rely on the mediator
to initiate a pre-mediation call and if the
mediator does not take the initiative, it
does not happen. A 15-minute phone call
can be very illuminating in determining
whether a case is truly ready to mediate,
and whether the mediation is likely to result
in meaningful settlement negotiations.
Mediation Timing
Selecting the right time for mediation is
one of the keys to getting cases settled at
mediation. If you mediate too early, you
risk the case not settling due to the lack
of information. Mediating too far along
in a case and you risk the case not settling
because the parties have become emotionally
and financially invested in taking the
case to trial.
When is the ideal time to mediate? There
are no set rules or guidelines to tell you
when to mediate, and each case is different.
Generally you want to strike the delicate
balance between mediating early enough
when the parties have not spent large
sums of money, yet late enough that each
side has sufficient information to make a
proper evaluation and risk assessment of
the case. We believe that earlymediations,
coupled with the parties being proactive in
exchanging information, even voluntarily,
provide the best opportunities to settle at
mediation.
Dealing with Liens
In almost every personal injury case there
is a lien that needs to be dealt with. It could
be a medical lien or a lien by the worker's
compensation carrier. These lien holders
can be integral to negotiations as they
impact plaintiff's ultimate net recovery.
Dealing with lien holders in advance of
the mediation and getting an idea of what
kind of deal can be struck can significantly
enhance settlement prospects. It is frustrating
for plaintiff and defendant to have their
negotiations stalled by having no sense of
what needs to be paid on the medical liens
or to the worker's compensation carrier.
Conversely, when you enter mediation
with a good sense of what it will take to
satisfy the liens, negotiations between
plaintiff and defendant can move forward
unencumbered by uncertainty of what
plaintiff's net recovery will be.
In this day of Medicare liens and unresponsive
medical lien holders, it is not
a simple matter to get a pre-mediation
read on where these liens can be compromised,
and that is why it is incumbent to
contact lien holders well in advance of the
mediation. It may be the case that you only
get a general idea of what the lien holders
will accept, but that's better than no idea.
Early Exchange of Thorough
Briefs
It is critically important to the settlement
process that parties exchange briefs, and
do so in sufficient time prior to the mediation
such that the information contained in
them can be digested, discussed, debated,
and most important, acted upon. From the
plaintiff's perspective, the mediation brief
is important to give to the defense because
it should contain the plaintiff's liability
and damages analysis, and also include a
settlement demand. It cannot be overstated
how important it is to provide the defense
with a pre-mediation settlement demand.
The vast majority of personal injury cases
have an insurance carrier involved and it
is common knowledge that
carriers need time to evaluate
settlement demands and
determine the amount of
authority placed on the case.
Receiving a settlement demand
at the mediation, or
just days before it, particularly in cases
with a six-figure or more value, gives
the carrier insufficient time to discuss the
case internally and make its decisions.
Simply stated, late demands minimize the
prospects of settlement. The bigger the
case, the more lead time should be given
between service of the mediation brief and
the mediation date. A mediation brief containing
a settlement demand, and the basis
for it, served weeks before the mediation,
will serve all parties well.
From the defense perspective, it is
equally important to advise the plaintiff
of its position on the issues of the case
in advance of the mediation. Is liability
disputed? Are there issues of comparative
fault? Is there a statute of limitations issue
or other affirmative defenses? Where
does the defense stand on injuries and
damages? How about insurance coverage
or collectability issues? These are all
critically important to the settlement value
of a case and the mediation is neither the
time nor place for the plaintiff to be first
informed of where the defense stands.
Plaintiff's counsel needs to educate their
client in terms of the strengths and weaknesses
of the case and the risks involved
in not settling. The defense mediation
brief provides plaintiff's counsel with
information needed to form the basis of
an informed conversation with the client.
In addition, a timely-served defense brief
provides plaintiff's counsel an opportunity
to address the issues raised by defendant
so a legitimate debate can take place at the
mediation. Conversely, if a critical issue is
raised for the first time during mediation,
there may be no ability to meaningfully
respond to it and settlement negotiations
may have to be put on hold while that issue
is further explored.
We receive confidential mediation briefs
all the time. While we recognize that
there is information best kept confidential,
in the typical personal injury case most
everything should be out in the open.
Confidential briefs should be the exception
rather than the rule. If confidential
information needs to be imparted to the
mediator, that is best done by serving two
mediation briefs – one brief served on your
opponent and the mediator, and a separate
"mediator's eyes only" brief.
Communicate With Mediator
To ensure a productive mediation, ex parte
contact between counsel and the mediator
is not only permitted, but strongly
encouraged. Not all mediators take the
initiative to check in with counsel before
the mediation. But mediators are happy
to field calls from counsel or set up a call
if requested. There are some cases where
a pre-mediation call is simply unnecessary,
but there are also cases where a brief
conversation with the mediator could go a
long way. For instance, if there is a client
control issue, it would be wise to let the
mediator know in advance. If there is a
hot button issue in the case that needs to
be handled with finesse, it is wise to alert
the mediator. And if there is confidential
information that may affect the case value
or negotiations, the mediator can be made
aware of this. Many of these matters can
be covered in a separate confidential mediation
brief, but it is equally effective to
discuss them over the phone and obtain the
mediator's feedback, reaction and suggestions
on how best to proceed.
MEDIATION
Avoid Surprises
As seen from the discussion above, many
of the steps to ensuring a successful mediation
are measures taken well in advance.
But there are several things you can do
during the mediation that go a long way
towards settlement. First, if there are terms
that need to be included as part of a deal,
they should be brought up for discussion
early in the mediation. Mediators loathe
the "oh, by the way, we need …" settlement
term thrown in at the end as you write
up what you thought were the settlement
terms. These so-called "throw-in" terms
take the form of a demand for confidentiality,
or a request for payment within a
very short time, or including Medicare as
a payee on the settlement draft, etc. There
are times when such terms are actual dealbreakers
for one side or the other. If they
are important enough to insist upon at the
end of negotiations, they should be brought
up early. If, for instance, a defendant is
going to insist upon confidentiality, they
should mention that at the outset and even
bring a sample confidentiality provision
that would be acceptable. Likewise, if
plaintiff's counsel is adamant about not
agreeing to any confidentiality provision,
that should be mentioned early in the negotiation
process – even if defendant has
yet to raise the subject.
What would be wrong with defense
counsel, at the beginning of a mediation,
providing plaintiff's counsel with a copy
of the settlement agreement (obviously
with the settlement amount left blank)
they would want plaintiff to execute if
settlement is reached? This is not a sign
of weakness or presumptuous, and would
provide plaintiff's counsel with the opportunity
to review it during the course of the
day and raise objections, if any.
Be Flexible and Patient
During mediation, counsel can increase the
likelihood of reaching settlement by being
patient and flexible with the negotiation
process. Negotiations can sometimes be
slow and even tortuous with "ambitious"
(high) early demands and "modest" (low)
initial offers. We all know that the meaningful
numbers are the ones at the end of
the day, not the beginning. But some attorneys
and their clients get impatient and
frustrated with the slow negotiation dance
and negotiations can break down. Let the
mediator continue to work the numbers
and trust the process.
With this said, there are times when
negotiations are best served by deviating
from the traditional demand-offer
exchange. The mediator may ask you to
do something a bit different in order to
speed up the process, determine if the
case is settleable, or break an impasse.
Such requests can take the form of asking
you to make a big move if the other side
makes a big move, throwing out a bracket,
or considering a mediator's proposal. You
should enter mediations expecting that
you may receive such a request and be
prepared, flexible and creative.
POST-MEDIATION
Despite best efforts and intentions, some
cases do not settle at mediation, even
though all or most of the steps outlined
above have been followed. The critical
next step is to figure out why a settlement
was not reached. You can and should tap
the mediator's brain and solicit the mediator's
thoughts on why the case did not
resolve. This can be done at the end of the
mediation with the goal of formulating a
plan to focus on the issues separating the
parties. Alternatively, each counsel can
contact the mediator individually following
the mediation, and while it is fresh in their
minds, to obtain the mediator's insights.
A mediation is obviously successful
when it ends with a settlement. But a mediation
is also successful in the absence
of a settlement if the parties leave the
mediation with a good understanding of
where they agree and disagree, and a good
understanding of what prevented the case
from settling. It is also successful if they
come out of the mediation with a plan that
will maintain any settlement momentum
created at the mediation.
Lastly, most mediators want every one
of their cases to ultimately settle. Take
advantage of mediators' willingness to
stay involved by keeping them informed
of developments and asking them to pick
up where the negotiations left off.
CONCLUSION
The measures outlined above are not unusual
and should not come as a surprise.
Distilled to the basics, we urge counsel to
communicate with each other, lien holders
and the mediator in advance of the
mediation. Communicating with these
individuals should confirm that the case
is ready to mediate and that the parties
have enough information to negotiate
productively. While the actions outlined
do not guarantee settlement, they certainly
improve the odds of settling the dispute at
the first and only mediation. n