MEDIATION AND MEDIATORS

Several months ago my friend Don Keenan wrote about mediators and mediation in his blog www.keenantrialblog.com  “How to Handle the Bullying Mediator” I told him how on target his views were and gave him my views, which follow below.  To start with, when I began a plaintiff practice negotiation always involved discussions directly with the insurance adjuster, the insurance company or the defense lawyer. However, mediation has become a cottage industry and we should learn proper skills for doing it right. Particularly since most of our cases settle and do not go to trial. Here are some of my thoughts about mediation. I concede that not all lawyers view mediation and the role of the mediator in the same way as I do. I also acknowledge the essential role skillful mediators play in settlement of cases. However, my view of mediation has these policies:

Relationship with the Mediator The mediator is not our ally or our advocate. The mediator doesn’t have the duty of ensuring a favorable settlement for our client. The mediator isn’t in the role of a judge in a non-jury trial. The mediator’s goal is to settle the case if possible. We need to keep that in mind when we decide what information we decide to share with the mediator. We also need to screen and control all communication we allow between the mediator and our client.

The mediator’s authority. In a voluntary mediation, the mediator doesn’t have judicial or any other inherent power or authority. It shouldn’t be the mediator who sets the rules for mediation. The conditions of mediation should be an agreement between the parties involved.  We generally should be professionally civil with the mediator and our opponents at the mediation but, this is a voluntary process and we are not obligated to obey the mediator’s demands or directives if it’s against our best judgment. The mediator has no inherent authority to order us or require us to do anything we don’t want to do. Retired judges do not bring with them the inherent power of the judiciary when they retire and become mediators. I make very clear I will not be intimidated to follow any requiremkents of the mediator I don’t agree with as in my client’s best interests.

Role of Mediator From my standpoint, the primary role of the mediator is to communicate relevant information back and forth between the parties, determine the likelihood of settlement and relate insight gained in the process. It is the role of the mediator to keep people focused on issues relating to settlement. It is not the role of the mediator to determine the settlement value of my case nor to determine my chances of winning. That’s the lawyer’s exclusive role. The attorneys in mediation are expected to be fully prepared and know their case better than anyone. They are expected to have fully and carefully evaluated their case and the settlement ranges before the mediation takes place. No lawyer should go to a mediation relying upon the mediator to evaluate their case or chances of winning.  Nor should we give any credence to a mediator’s attempt to evaluate our case based on other settlements or other verdicts. There is no validity to such attempts to compare what can’t be reasonably compared given all the unique factors in each case outcome.

Mediation Policies I believe we should have guidelines we follow in mediation. The time to establish ground rules for you to participate in mediation is before the mediation begins not at the mediation. The best way to accomplish that is by a preliminary mediation letter sent to the mediator and the opponents so everyone knows your conditions of mediation. Here are some of my mediation policies:

  • Confidentiality.While not all lawyers agree, my policy was that we would not agree to confidentiality about the settlement. If the client wanted to keep the matter confidential, we honored that as a client choice but, not as a condition imposed as a condition of settlement by the defendant or insurance company.If that is your policy, you need to make it clear before the mediation begins.
  • Written agreement. To avoid post mediation disputes, I required that all parties sign a written memorandum of all terms of settlement before we left  the mediation or there was no settlement. To facilitate this, we had a written memorandum with blanks dealing with the important issues such as the amount, the time for payment and other conditions of settlement. We brought this to the mediation and before we left it had to be signed by all responsible parties involved. Otherwise there was no settlement.
  • Meeting the opponents. My requirement was that I met and talked with everyone involved in the mediation from the other side. I also needed to know their role. Most mediators are reluctant to do this probably fearing a confrontation that would sour the mediation. But, I don’t negotiate with unknown people I haven’t personally appraised. Relying upon the mediator to give an overall view of the people you’re negotiating with is not the same as meeting and talking to them face-to-face. Know who you’re negotiating with before you start mediation.
  • Limit the time. I always had fixed time limits for the negotiation to take place. It’s been shown that in a great majority of situations 80% of the progress is made in the last 20% of the available time left before a negotiation ends. I had firm, non-flexible established hours set for the negotiation. If you have no deadlines and fixed hours set, you can count on the mediation going on indefinitely. With an experienced and qualified mediator focused on moving the mediation forward he or she should know in less than two to three hours whether there is a reasonable potential for settling the case. If not, it is a waste of time to remain. You can usually reschedule another mediation. If not, try the case. My standard time allowed for mediation, even in major cases was four hours starting in the morning. I made it clear that if at the end of that time it was my view that the case was not likely to settle the client and I would leave. I always held the option of staying longer if beneficial, but also set a fixed deadline to end the mediation. Even if the mediation continued I made it clear there was an afternoon final and inflexible deadline. Otherwise, mediation would continue to drag out forever.
  • Make the first subject money. There are usually more issues than just money in a negotiation of a personal injury case. If you want to know whether there is a reasonable chance the case will settle insist that it start with money and not other issues in dispute. Do not let the mediator or your opponent’s waste time on other issues until you know there is a likely potential for agreeing on the amount. If not, none of the other issues count anyway. Furthermore, once the money is agreed upon those issues are a lot more easy to resolve. When negotiating money my policy was to refuse to engage in the game of multiple back and forth demands and counter offers of small amounts extending over a long period of time. The parties are either are in a potential settlement range or they aren’t. Find that out as soon as you can. It’s a waste of time to engage in negotiation games.
  • Control the mediator’s communication with you client. Our client has hired us as their lawyer, not the mediator. We are the only persons who should give advice to our clients. Our clients didn’t hire the mediator for advice. Therefore, we should decide what information is shared and what advice is given our client. No one else should be allowed to talk to our clients about settlement issues. The mediator is not our client’s advocate nor our ally in the mediation. The mediator should have all relevant information to do their job, but not by uncontrolled communication with our client. We should never allow a mediator to talk to our client’s privately. Nor should we allow the mediator to question the client, advise the client or otherwise have any unsupervised involvement with the client. We should control what information the client does give to the mediator for the same reason.

These and other considerations about mediation can be of significant help in mediation procedures.

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ASSORTMENT OF NOTES & IDEAS

I was reviewing a stack of material I had put aside to read when I had time and having done so, thought I’d share some of them,  even though they are not organized in any particular order. Here they are:

  • In order to motivate good eye contact, make a practice in talking with other people, to make a specific effort to note the color of their eyes. This enhances optimum eye contact.
  • We often forget the power of silence. As lawyers we have a tendency to be uncomfortable with pauses or silence and fill them with words.  However, when we are encouraging someone to share information with us,  silence can create pressure on the other person to fill the blank  and reveal more information. Use silence as a tool.
  • It’s an obvious, but often forgotten fact, that the the best way to learn something is to teach it. In order to teach it you have to learn it.
  • Alan Alda wrote a book If I understood you, would I have this look on my face? Some of the things he noted included:

(1)   In connection with a television program he hosted, he interviewed people             including scientists about their work. He decided to study the subject that he was going to be talking to the scientist about to prepare for the interview. However, he says he learned that that was a bad idea because “After a while, I saw that I was having trouble talking with them whenever I thought I knew more than I really did about their work. I was boxing in the scientist with questions that were based upon false assumptions. I took a bold step and stop reading the scientist’s research papers before I met with them. I would come in armed only with curiosity and my own natural ignorance.” Lawyers should learn that lesson with regard to both direct and cross examination of experts. While it is important to know the subject too many lawyers make the same mistake Alda did and the result is a boring and often ineffective examination

(2)  Experiments were done regarding people who had suffered a loss of connection between the right and left brain hemispheres either due to surgery or to trauma. The two half’s were operating independently and were unable to communicate with each other like a normal brain. What the scientists discovered, however, was that if the left hemisphere had no clue as to the answer to a question or information about a subject it would nevertheless guess, prevaricate, rationalize and look for a cause and effect. In every case it would come up with an answer that it thought satisfied the circumstances. Our thought process regarding decision-making  follows the same pattern. That is, even when the decision is made at a subconscious level and the rational mind does not realize why it was made, the rational mind will always come up with a reason. That’s why survey’s and even focus group studies  for reasons can be misleading.

(3)  Alda discovered that scientists and people in the scientific field make the same mistake many trial lawyers make.. That is they use shorthand, abbreviation or acronyms. They do it  either because they want to show off about how smart they are or they make the mistake of assuming that everybody understands the meaning.Too often lawyers who have spent a great deal of time learning a scientific subject follow the same pattern with the jury. The jurors, however don’t understand and become confused by this kind of shorthand communication. We need to always avoid this mistake in our communications.

  • Donald McRae wrote a book The great trials of Clarence Darrow.Some of the things noted in the book are worth our considering:

(1)  In the Los Angeles bribery trial against Darrow, he told the jury in final argument: “I am on trial because I have been a lover of the poor, a friend of the oppressed, because I’ve stood by labor all these years, and have brought down upon my head the wrath of the criminal interest in this country. Whether guilty or innocent of the crime charged in the indictment, that is the reason I am here. I have committed one crime, one crime which cannot be forgiven. I have stood for the week and the poor. I have stood for the men who toil… If you should convict me, there will be people to applaud the act. But, if in your judgment and your wisdom and your humanity you believe me innocent, and return a verdict of not guilty in this case, I know that from thousands and tens of thousands and yea, perhaps millions of the weak and the poor and helpless throughout the world will come give thanks to this jury for saving my liberty and my name.”

(2) In his plea to save the life of Leopold and Loeb his argument lasted over two days.It was almost 4 o’clock on the second day when Darrell reached his conclusion: ” I am pleading for the future, I am pleading for a time when hatred and cruelty will not control the hearts of men, when we can learn by reason and judgment and understanding and faith that all life is worth saving, and that mercy is the highest attribute of man.” They escaped the death penalty.

(3)  He notes that Darrow did not write out his actual argument to the jury, but he would work on individual passages around which he would create a pattern of words that often were to take two days to deliver and all without notes.

(4)  His opponent in the famous Scopes trial was William Jennings Bryan. Brian’s famous speech which he gave hundreds of times across the country, the “Cross of Gold” speech was on behalf of those opposed to making gold the standard rather than silver. It was chiefly responsible for his being nominated three times to run unsuccessfully for the US president. The memorable conclusion was delivered with a biblical crescendo: “We will answer demands for a gold standard by saying to them: you shall not press down upon the brow of labor this crown of thorns; you shall not crucify mankind upon a cross of gold.”

(5)  Darrow had a difficult  time starting his law practice. He had said in a speech: “for a while, I was practicing law and playing poker on the side and I almost starved. But then, I started playing poker and practicing law on the side and I made enough money to go to Chicago and open an office.”

(6)  Regarding jury demographics, Darrow was once asked about leaving Irish Catholics on the jury involving capital punishment. His response was: “I never met an Irish Catholic yet who didn’t think that someday he might be in trouble himself.”Darrow’s mantra was, once the jury had been selected, that: “the case is won or lost now. The rest is window dressing.”

I saved a memo from the Internet about advice to presidential candidates for their debates with their opponents.It seems to me that some of the advice was applicable to trial lawyers as well. Here are a few:

(1)  Develop a list of three things you MUST say in the debate. Use it as a checklist before each answer to see if you can fit it into your answer.

(2)  While punches are good, counter punches are always better. Study what your opponent has been saying and be prepared with counter punches.

(3)  Always begin your answers with “yes” or “no” whenever possible. Answer the question first and then explain. By doing that you will appear to be both responsive and candid.

(4)  Never nod your head when the other candidate says negative things about you.

(5)  When you talk about the other candidate, look at the audience or the camera, not at your opponent. In addition, occasionally gesture dismissively toward your opponent.

(6)  avoid any defensive posture. Do not cross your hands in front of your crotch or cross your arms over your chest or cross your arms behind your back or put your hands in your pockets. Keep your hands apart so that people see you have no need to protect anything about yourself and that you are totally open.

Since were dealing with communication and persuasion we need to look for accurate information that helps us do our job for our clients as well as possible for us.

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DEPOSITION OF TREATING DOCTOR WHO REFUSES TO MEET WITH PLAINTIFF ATTORNEY

Some time ago plaintiff lawyers experienced a problem in Washington State when treating doctors  refused to meet with or discuss their patient’s case with plaintiff lawyer. Some insisted they would not meet at all and some would only meet if “their” lawyer was present. It made no difference if the doctor was provided all the legally required medical release documentation. In some cases it was a policy the majority medical malpractice carrier had adopted as a policy for it’s medical insured’s and in some cases it was risk management at hospitals or medical clinics who were behind the policy. The result was having to depose treating doctors without having talked to them informally.

The other day a colleague reported that her client’s treating doctor had adopted this position with her. I went over my past notes and I am providing a discovery outline preamble in such a case. My opinion is that a physician who takes this position is no friend of the patient or lawyer so I’m not concerned about “alienating” them. I want a good record at deposition for use at trial if I have to take the witness on and I want to be in a position to lay a foundation if it is the right way to deal with trial testimony. Plus, it might intimidate the physician into honest testimony.

PREAMBLE TO DEPOSTION OF TREATING DOCTOR WHO REFUSED TO
MEET WITH PATIENT’S LAWYER

A. DOCTOR – PATIENT RELATIONSHIP INVOLVED

1. (NAME) Is your patient?
2. When first became patient?
3. Still your patient as of today?

B. AMA CODE OF MEDICAL ETHICS

1. Do you agree that the medical profession is obligated to follow ethical standards which are primarily for the benefit of patients?
2. Do you agree that a physician has a responsibility to patients first and foremost?
3. Do you agree that the practice of medicine in the clinical relationship between patient and physician is fundamentally a moral activity?
4. Do you agree that the relationship between a patient and a physician is based upon trust?
5. Do you agree that the physician’s ethical obligation is to place the patient’s welfare above the physicians own self-interest?
6. Do you agree that patients have the right to be advised of any conflicts of interest their ` physician may have in respect to their care?
7. Do you agree with this principle of medical ethics: A physician shall, while caring for a patient, regard responsibility to the patient as paramount?”
8. Do you agree that medical evidence is critical in a variety of legal and administrative proceedings?
9. Do you agree that as professionals with specialized knowledge and experience, physicians have an obligation to assist in the administration of justice?
10. Do you agree that when a physician testifies about their patient’s care and treatment, they must hold the patient’s medical interest’s paramount by delivering honest testimony?

(NOTE: THESE ARE BASED UPON THE AMA CODE OF MEDICAL ETHICS:)

[1] The AMA’s Code of Medical Ethics offers ethical guidance for the medical profession and centers on the physician-patient relationship. It sets ethical guidance to how physicians should interact with patients. The AMA believes all physicians should uphold the ethical standards set forth in the Code. First developed in 1847, the Code is regularly updated through reports and opinions of the Council on Ethical and Judicial Affairs (CEJA). CEJA’s role is to analyze and address timely issues confronting physicians and the medical profession.

[1]  The medical profession has long subscribed to a body of ethical statements developed primarily for the benefit of the patient. As an American Medical Association are not laws, but standards of conduct that define the essentials of honorable behavior for the physician.

[1] member of this profession, a physician must recognize responsibility to patients first and foremost, as well as to society, to other health professionals, and to self. The following Principles adopted by the

[1] The practice of medicine, and its embodiment in the clinical encounter between a patient and a physician, is fundamentally a moral activity that arises from the imperative to care for patients and to alleviate suffering.

[1] The relationship between a patient and a physician is based on trust, which gives rise to physicians’ ethical responsibility to place patients’ welfare above the physician’s own self-interest

[1] Physicians can best contribute to a mutually respectful alliance with patients by serving as their patients’ advocates and by respecting patients’ rights. These include the right:  …

(h) To be advised of any conflicts of interest their physician may have in respect to their care.

[1] VIII. A physician shall, while caring for a patient, regard responsibility to the patient as paramount.

[1] Medical evidence is critical in a variety of legal and administrative proceedings. As citizens and as professionals with specialized knowledge and experience, physicians have an obligation to assist in the administration of justice

[1] Physicians who testify as fact witnesses in legal claims involving a patient they have treated must hold the patient’s medical interest’s paramount by: (e) Delivering honest testimony. This requires that they engage in continuous self-examination to ensure that their testimony represents the facts of the case.

C. REFUSAL TO MEET

1. You are aware I am the attorney for your patient?
2. On (TIME FRAME) I provided you with all legally and ethically required documents authorizing you to share medical records and medical information about (NAME) with me to assist in their legal claim?
3. You are not being sued in the legal action, are you?
4. Your patient requested that you cooperate with me as their attorney regarding your medical care and treatment of (him/her)
5. You knew I was your patient’s lawyer when I contacted you?
6. I asked to meet with you to discuss your patient’s care to assist with the legal claim?
7. However, you refused to meet with me or discuss the patient care unless legally required to do so by subpoena or legal deposition?
8. As a result, I had to legally require you to testify here today under oath about your patient?

D. REASON FOR REFUSAL

1. Did you talk to anyone about whether you should meet with me or discuss the case before you refused to do so?
(1) Who?
(2) How many times?
(3) What was discussed?
(4) Why did you refuse to help your client by discussing the care with their lawyer?

E. FOLLOW UP DEPOSITION

Here you would proceed with the informational part of the deposition.

Post Script: A lawyer I respect asked why I just didn’t ask the reason the witness refused to cooperate. Here’s my response:  It depends entirely on your style.

Mine is to always focus on credibility in cross. Witness might have a credible reason or give short explanation. Witness may give negative testimony about patient. I really am not interested in the simple reason. That’s not my focus.   I want enough fundamental concessions about fiduciary duty to patient and conflicts of interest (insurance or risk management issues) to hammer the witness with at trial if required. Either way the witness responds to the ethics questions gives plenty of room to do this at trial. A denial would be worse that a yes answer. The way I want to structure my  exam is to have jurors seeing their doctor on the stand and how they would want their doctor to act and respond.

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