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A big part of a mediator’s job is to elicit and isolate relevant facts. Then we can determine points of agreement and disagreement. Mediations come in two basic types: – Parties agree on the facts but disagree on how to interpret them – Parties disagree on the facts Model 1: We Agree on the Facts, But. . . In this common situation, parties may disagree on issues such as: – the degree of disability the…
On several occasions, counsel has appeared for mediation with an expert report dated the day before. Often this attorney has not served a copy of the report on opposing counsel. Nor did the advocate attach this document to the mediation brief. What effect does this report have at mediation? I have never seen a last-minute report have a beneficial effect. Rather, it really ticks off the other side. Sometimes, the recipient threatens to cancel the…
Find out how much you really know about mediation with this short True/False quiz. 1. Opposing parties meet together with the mediator in caucus. T/F 2. No one can use documents disclosed solely in mediation as evidence if the case does not settle. T/F 3. If parties are unable to agree on settlement terms, the mediator will decide the case based on the information presented at the mediation. T/F 4. The process of getting everyone to agree to mediation…
Do you feel like you and your clients are hostage to a claim that goes on and on? Every treatment request triggers a new round of litigation. The injury happened decades ago, and the disability percentage still has not finalized. The parties are at each other’s throats. You can use tips from professional hostage negotiators to free the prisoners of that claim. Keep Everyone Calm By definition, kidnappers are making unreasonable demands. The negotiator’s job is…
I recently mediated a partially denied claim where the attorney for the injured worker had no idea what the value of the future medical costs might be. It was an old dog claim, and treaters had been deposed multiple times. When a printout provides historic data, it’s pretty easy to project future expenses. Sure, parties might disagree about the credibility of treaters’ recommendations or the likely cost of future expenses. They might debate the…
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 ItEspecially when claims drag…
Babe Ruth’s lifetime batting average was .342. Studies in states with a history of workers’ compensation mediation suggest your success rate with it is likely to be a whole lot better. In Florida, parties must mediate workers’ compensation claims within 130 days of the filing of a petition for benefits. Results for the fiscal year ended June 30, 2013, showed a 74% success rate, defined as partial or complete resolution of the issues. The Minnesota Department of…
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, I now instruct parties in my…
Workplace injury benefits come in many “flavors.” Most California workers are covered by workers compensation, administered by the state. However, federal law provides workplace injury benefits to others. A narrow definition, subject to many refinements, of these groups includes: Jones Act- maritime workers Longshore Act- dockworkers Defense Base Act – civilian employees working abroad on a U.S. military base or under contract with the U.S. government for public works or national defense Federal Employers Liability…
Value-Added Negotiating Many negotiators approach resolution as a zero sum game. Each side’s gain or loss is exactly equal to the other party’s gain or loss. Viewing the resources available as limited can obstruct getting to settlement. Particularly when one or more parties have hit their dollar authority limit, adding non-monetary benefits to the discussion creates a larger number of benefits to divide. Some people call this “enlarging the pie.” When there are more issues to discuss,…