tag:blogger.com,1999:blog-17656242793637445612024-03-08T07:15:40.447-08:00Guy Kornblum - The Resolution AdvocateGuy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.comBlogger33125tag:blogger.com,1999:blog-1765624279363744561.post-63463935403828388592011-05-18T10:55:00.000-07:002011-05-18T10:59:54.341-07:00The Resolution Advocate: Tips on Getting to the Goal Line in Civil Litigation-- Cliches That Apply to Mediaiton and Settlement NegotiationsBy: Guy O. Kornblum<br />San Francisco, California <br /><br /> You don’t have to go to the law books to find the basic principles which apply to negotiation and settlement. In fact, these basic principles may be ones you learned growing up, and possibly used before you ever entered law school. They are from clichés that we all have heard and probably used in our personal lives, but do they apply to our work as trial lawyers and litigators? Here are some I apply regularly:<br /><br /> 1. You Can’t Get Blood Out of a Turnip. <br /><br /> “‘You can't get blood from a stone.’ You can't get something from someone who doesn't have it. The proverb has been traced back to G. Torriano's ‘Common Place of Italian Proverbs.’ First attested in the United States in the ‘Letters from William Cobbett to Edward Thornton.’ The proverb is found in varying forms: ‘You can't get blood out of a stone; You can't get blood from a rock; You can't squeeze blood from a stone; You can't get blood out of a turnip, etc....’ ” The application to the negotiation and mediation process is that you have to have a flush target as a defendant, either because of insurance coverage or assets that are reachable through any collection effort. This is the third part of the three legged stool analogy of selection of lawsuits: liability, damages and collection!<br /><br />2. You Get More Flies with Honey than Vinegar.<br /><br /> “...The proverb has been traced back to G. Torriano’s ‘Common Place of Italian ---Proverbs.’ It first appeared in the United States in Benjamin Franklin’s ‘Poor Richard's Almanac’ in 1744, and is found in varying forms....” <br /><br /> The importance of this one is that diplomacy is critical to successfully negotiating a resolution to a lawsuit. Some might thing that the vigorous advocate who attacks like a pit bull will get his or her way. In my experience, that does not work in mediation, and maybe even in litigating a case. The most successful lawyers at negotiation base their “power” in negotiating on a high degree of knowledge about their case and the law and facts applicable, as well as personal skills of persuasion. Those who bang the table, and conduct themselves like attack dogs gain little respect. The diplomatic negotiator gets others to listen, believe and reach agreements. Leave the vinegar bottle at home, and take your biggest honey jar to the negotiation table. <br /><br /> 3. It Ain’t Over ‘Til The Fat Lady Sings. <br /> <br /> The meaning: Nothing is irreversible until the final act is played out. <br /><br /> “Just to get this out of the way before we start: is it 'til, till or until? You can find all of these in print: <br /><br /> It ain't over 'til the fat lady sings<br /> It ain't over till the fat lady sings<br /> It ain't over until the fat lady sings<br /><br /> “You might even find versions with isn't instead of ain't. Grammarians argue about 'til and till; I'm opting here for till. Okay; so who was the fat lady? If we knew that, the origin of this phrase would be easy to determine. Unfortunately, we don't, so a little more effort is going to be required. The two areas of endeavor that this expression is most often associated with are the unusual bedfellows, German opera and American sport.<br /> <br /> “The musical connection is with the familiar operatic role of Brunnhilde in Richard Wagner's Götterdämmerung, the last of the immensely long, four-opera Ring Cycle. Brunnhilde is usually depicted as a well-upholstered lady who appears for a ten minute solo to conclude proceedings. 'When the fat lady sings' is a reasonable answer to the question 'when will it be over?', which must have been asked many times during Ring Cycle performances, lasting as they do upwards of 14 hours. Apart from the apparent suitability of Brunnhilde as the original 'fat lady' there's nothing to associate this 20th century phrase with Wagner's opera. <br /><br /> “All the early printed references to the phrase come from US sports. Some pundits have suggested that the phrase was coined by the celebrated baseball player and manager, Yogi Berra, while others favor the US sports commentator, Dan Cook. Berra's fracturing of the English language was on a par with that of the film producer Sam Goldwyn but, like those of Goldwyn, many of the phrases said to have been coined by him probably weren't. Along with ‘It's déjà vu all over again’ and ‘The future isn't what it used to be,’ Berra is said to have originated ‘The game isn't over till it's over.’ All of these are what serious quotations dictionaries politely describe as 'attributed to' Berra, although he certainly did say ‘You can observe a lot by watching,’ at a press conference in 1963. In any case, ‘the game isn't over till it's over’ isn't quite what we are looking for, missing as it is the obligatory fat lady.<br /><br /> “Dan Cook made a closer stab with ‘the opera ain't over till the fat lady sings’ in a televised basketball commentary in 1978. Cook was preceded however by US sports presenter Ralph Carpenter, in a broadcast, reported in The Dallas Morning News, March 1976: Bill Morgan (Southwest Conference Information Director): ‘Hey, Ralph, this... is going to be a tight one after all.’ Ralph Carpenter (Texas Tech Sports Information Director): ‘Right. The opera ain’t over until the fat lady sings.’<br /><br /> “Another US sporting theory is that the fat lady was the singer Kate Smith, who was best known for her renditions of ‘God Bless America’. The Philadelphia Flyers hockey team played her recording of the song before a game in December 1969. The team won and they began playing it frequently as a good luck token. Smith later sang live at Flyer's games and they had a long run of good results in games where the song was used. Sadly, Ms. Smith sang before games, not at the end. If the phrase were ‘It ain't started until the fat lady sings,’ her claim would have some validity. <br /><br /> “Whilst printed examples of the expression haven't been found that date from before 1976, there are numerous residents of the southern states of the USA who claim to have known the phrase throughout their lives, as far back as the early 20th century. ‘It ain’t over till the fat lady sings the blues’ and ‘Church ain’t out till the fat lady sings’ are colloquial versions that have been reported; the second example was listed in Southern Words and Sayings, by Fabia Rue and Charles Rayford Smith in 1976.<br /><br /> “Carpenter's and Cook's broadcasts did popularize the expression, which became commonplace in the late 1970s, but it appears that we are more likely to have found the first of the mysterious fat ladies in a church in the Deep South than on the opera stage or in a sports stadium.” <br /> <br /> Here the application of this phrase to negotiation and mediation is consistent with the meaning set forth above. As long as folks are talking to each other about resolution, there is hope. Thus it is critical in negotiations to keep the dialogue ongoing. I recently was involved with a co-counsel whom I reluctantly let lead the negotiations in one of our cases. Instead of following this principle of continuing to communicate, he consistently dropped the ball and insisted that it was the other side that should call. The dialogue was inconsistent and often nonexistent, and he took no advantage of the momentum that was built up from time to time in the direct negotiations. The case took forever to resolve (several months), when it should have been resolved in a several days of talks, and it took a mediation and more legal fees to finally get it done.<br /><br /> Communication in settlement is the key. Trying to settle cases is no longer viewed as a sign of weakness. Make the overture of, “Let’s talk.” Then keep the talking going until the case is resolved or each side says “I have given you my last, best and final offer,” and the case cannot settle.<br /><br /> 4. Know When To Hold ‘Em, and Know When To Fold ‘Em.<br /><br /> This is an expression that emanates from the Kenny Rogers song, “The Gambler.” It refers, of course, to the skill that a successful poker player has in knowing when to stay in or drop out of a hand. We use it in all kinds of business and personal situations to describe the decision to stay in the battle or drop out and fight another day.<br /><br /> The words go:<br /><br /> “You got to know when to hold 'em; know when to fold 'em,<br /> Know when to walk away; know when to run.<br /> You never count your money when you're sittin' at the table.<br /> There'll be time enough for countin' when the dealin's done.”<br /><br /> No doubt this refers to the skill of knowing when the right deal is on the table and making the judgment of settlement vs. trial; a skill which all of us wish we had developed to a perfect sense of predicting the future of how a case will end up when it is tried, appealed and the final gavel is dropped and judgment entered. While none of us has the crystal ball to use in advising our clients, we use our education, experience and skills to provide our clients with our best judgment of whether a settlement opportunity provides the preferred result rather than going to trial. The uncertainty of the future and the eventual decision making process emphasizes the need to make a concerted effort to settle.<br /><br /> 5. Here Today, Gone Tomorrow.<br /><br /> “This phrase was coined by Aphra Behn (1640-1689) who Virginia Woolf, in ‘A Room of One's Own,’ canonized ‘as the first professional English woman writer.’ From ‘More Than A Woman: A few of our favorite unsung heroines,’ Page 62-63, B*tch - feminist response to pop culture, Issue No. 35, Spring 2007.<br /><br /> “Wikipedia also cites Virgina Woolf in stating this ‘fact’ (she doesn't say it as quoted however, if that's what those quote marks mean (http://etext.library.adelaide.edu.au/w/woolf/virginia/w91r/chapter4.html ).” <br /><br /> The point for us here is that negotiations can get cold and parties can back off if the negotiations seem to be going nowhere, or there is no ongoing communication. Keep talking; try to resolve terms as you proceed. The more you can agree upon as you proceed, the greater the chance there will be success at the end of the discussions. So an offer on the table needs to be answered with an acceptance, counter or some additional basis for discussion.<br /><br /> 6. A Bird in the Hand is Worth Two in the Bush.<br /><br /> “This proverb refers back to medieval falconry where a bird in the hand (the falcon) was a valuable asset and certainly worth more than two in the bush (the prey). The first citation of the expression in print in its currently used form is found in John Ray's A Hand-book of Proverbs, 1670, which he lists it as: ‘A [also 'one'] bird in the hand is worth two in the bush.’ By how much the phrase predates Ray's publishing isn't clear, as variants of it were known for centuries before 1670. The earliest English version of the proverb is from the Bible and was translated into English in Wycliffe's version in 1382, although Latin texts have it from the 13th century: Ecclesiastes IX – ‘A living dog is better than a dead lion.’<br /><br /> “Alternatives that explicitly mention birds in hand come later. The earliest of those is in Hugh Rhodes' The Boke of Nurture or Schoole of Good Maners, circa 1530: ‘A byrd in hand - is worth ten flye at large.’<br /><br /> “John Heywood, the 16th century collector of proverbs, recorded another version in his ambitiously titled A dialogue conteinyng the nomber in effect of all the prouerbes in the Englishe tongue, 1546: ‘Better one byrde in hande than ten in the wood.’<br /><br /> “The Bird in Hand was adopted as a pub name in England in the Middle Ages and many of these still survive. The term bird in hand must have been known in the USA by 1734, as that is the date when a small town in Pennsylvania was founded with that name .”<br /><br /> A deal done in negotiations means finality, certainty, and conclusion, rather than no closure, uncertainty and no resolution. You have to consider the impact that money or accepted terms have on the future. Your client can now put his/her/their life back together as best possible, recovery can begin, and the drain of litigation is over. What a relief for most people!<br /><br /> I’ll do a Part II before the year is out.<br /><br /> Let me here your views to gkornblum@kornblumlaw.com.<br />Good Mediating. . .Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0tag:blogger.com,1999:blog-1765624279363744561.post-23574361157934190292011-05-18T09:57:00.000-07:002011-05-18T10:11:13.901-07:00The Resolution Advocate: Tips on Getting to the Goal Line in Civil Litigation: The Three "C's" of Settlement NegotiationsBy: Guy O. Kornblum<br />San Francisco, California <br /><br /> Three basic principles are at the heart of settlement negotiations, whether they are direct or supervised in the more formal setting of a mediation: candor, communication, and confidentiality.<br /><br /> The level of candor required depends on the parties, their relationship and the forum. That is, the parties may be more guarded in direct negotiations, whereas in a supervised mediation, the presence of the mediator and the use of such as an intermediary may persuade the parties to be more candid about their case during the negotiations.<br /><br /> Communication is critical to the process. Once the parties stop talking, then there is no chance of a settlement even with a mediator. As long as the parties are talking to each other, even if through a third party, there is a chance for a negotiated resolution. Of course, the potential for settlement is advanced only if the communication is diplomatic and professional and not adversarial and hostile.<br /><br /> Confidentiality is also critical to the process. It encourages both communication and candor. The parties must understand that they will not be prejudiced by their exchanges, and that such will not be used against them in subsequent proceedings in the litigation. This assurance of confidentiality is at the heart of negotiations, whether direct or supervised.<br /><br /> These are the three essential underlying principles which allow the parties to reach a point where they together decide if the matter can be resolved. It is the policy that the decision making rests with the parties that requires that the three “C’s” underlie and support the process of negotiation. Without an assurance of confidentiality, the parties are not going to candidly exchange information. Without confidentiality, communication and open discussion are stymied, as the parties will believe that whatever is said may end up being part of the other’s case at trial. The integrity of the process of negotiation in any format can only be assured if the parties are confident that their exchanges, disclosures and bargaining will be protected from being used against them in subsequent proceedings. The parties must believe that they will not be prejudiced if they engage in any settlement exchanges.<br /><br /> The Preface the Uniform Mediation Act states, “. . . [T]he law has the unique capacity to assure that the reasonable expectations of participants regarding the confidentiality of the process are met, rather than frustrated. For this reason, a central thrust of the Act is to provide a privilege that assures confidentiality in legal proceedings.”<br /><br /> The drafters of the Uniform Mediation Act, approved by the American Bar Association at its Mid-Winter Meeting in Philadelphia, Pa., February 4, 2002 [as amended 2003] (“UMA”) refer to these public policies underlying its adoption:<br /><br /> • Promote candor of parties through confidentiality of the mediation process, subject only so the need for disclosure to accommodate specific and compelling societal interests (internal citation omitted);<br /><br /> • Encourage the policy of fostering prompt, economical, and amicable resolution of disputes in accordance with principles of integrity of the mediation process,active party involvement, and informed self-determination by the parties (internal citation omitted); and<br /><br /> • Advance the policy that the decision-making authority in the mediation process rests with the parties (internal citation omitted).<br /><br /> The Federal Rules of Evidence do not contain any specific provision relating to communications during mediation. Rule 408 protects some communications during negotiations, but does not address a mediation itself. District courts have specific rules adopted to protect what takes place during a mediation and serve the purpose of carrying out the policies of encouraging candor and communication in supervised negotiations.<br /><br /> The protection of rules and statutes relating to direct negotiations is narrower than the confidentiality which attaches to the mediation process. For example, California Evidence Code section 1152 applies to an offer for compromise or to furnishing something for value to another person who has sustained, or claims to have sustained, loss or damage, and also applies to “conduct or statements made in negotiation thereof….”<br /><br /> Despite the legal niceties, the parties should approach any negotiations with the understanding that they will all cooperate in implementing a principle of confidentiality so that the negotiations can progress towards an agreed upon resolution of the case.<br /><br />Good Mediating. . .Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0tag:blogger.com,1999:blog-1765624279363744561.post-81683642890053296532011-05-18T09:54:00.000-07:002011-05-18T09:57:24.494-07:00The Resolution Advocate: Tips on Getting to the Goal Line in Civil Litigation:By: Guy O. Kornblum<br />San Francisco, California <br /> The California Supreme Court, Justice Marvin Baxter, one of the court’s known conservatives writing the opinion, has spoken on mediation confidentiality. The Court held that the mediation privilege prevents a client from using testimony regarding what his lawyer told him or did during a mediation in a legal malpractice case by the client against the attorney. The point is that a lawyer can commit malpractice at a mediation and no one will hear about it! Fair? Unfair? The reaction is divided. (See, Kichaven, “Mediation Confidentiality and Anarchy: The California Nightmare,” The Los Angeles Daily Journal, February 17, 2011, p. 4.) .<br /> In Cassel v. Superior Court, 51 Cal. 4th 113, 244 P. 3d 1080 (January 13, 2011), the client brought an action against attorneys who represented him in a mediation in a malpractice, breach of fiduciary duty, fraud, and breach of contract action. At trial the attorneys made a motion in limine using the statute relating to mediation confidentiality (Cal. Evid. Code §1119(a), (b)) to exclude all evidence of communications between the client and the lawyer that were related to the mediation, including what was discussed in pre-mediation meetings and private communications between the client and attorneys during the mediation. The trial court granted the motion; the client sought a writ of mandate, which a Court of Appeal granted. The Supreme Court granted review and reversed the Court of Appeal.<br /> Essentially the Supreme Court upheld a broach protection of mediation communications between a client and his lawyer: mediation related communications and discussions between a client and his lawyer are confidential, and therefore were neither discoverable nor admissible for purposes of proving a claim of legal malpractice. <br /> It also held that the application of mediation confidentiality statutes to legal malpractice actions does not implicate due process concerns so fundamental that they might warrant an exception on constitutional grounds.<br /> So there; that is that! Done, over.<br /> In so holding, Justice Baxter said up front in the opinion:<br /> “We have repeatedly said that these confidentially provisions [the Cal. Evid. Code cited, supra] are clear and absolute. Except in rare circumstances, they must be strictly applied and do not permit judicially crafted exceptions or limitations, even where there is a competing public policies may be affected. (Citations omitted.)”<br /> The ruling also could affect other types of tort or contract claims arising out of mediation practice, including mediator malpractice and insurance bad faith. The ruling has been criticized because it a) prevents the truth from being known, and b) it violates the basic principle that for every wrong there is a remedy. These are points that Mediator Kichaven makes in the cited article.<br /> While Justice Baxter has surrounded the mediation process with an aura of strict confidentiality, his view contrasts with the Uniform Mediation Act (www.nccusl.org). In this Act, a “mediation communication is a privileged.” Section 4(a). However, under Section 6(a)(6), “There is no privilege under Section 4 for a mediation communication that is . . .sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation.” So, under that approach, the testimony of Cassel, the lawyer, is both discoverable and admissible. It is not protected, and is available in a legal malpractice case, mediator misconduct action or insurance bad faith case. Makes sense to me. It also made sense to the National Conference on Uniform State Laws and those serving on the Advisory Committee on the Uniform Mediation Act and its Reporter, Professor Nancy Rogers of the Moritz College of the Law (a former dean of the law school), and Associate Reporter, Professor Richard C. Reuben of the University of Missouri Law School. <br /> If the rule were otherwise from what Justice Baxter and his colleagues (Justice Chin concurred “reluctantly”) held, would the exception to confidentiality discourage mediation? Mr. Kichaven covers this point and quotes Professors Rogers and Reuben who seem to think not. Also Mr. Kichaven points out that settlement conferences held under the auspices of the court system are not be subject to the mediation privilege in California [although there is a confidentiality as to what takes place which prevents disclosure at trial of the offers, counters and discussions ]. So the lawyer could be sued for malpractice for conduct at a court supervised settlement conference but not a private mediation. That does not seem to be right; it is illogical and cannot be rationally justified.<br /> Coincidently a couple of weeks after this case was handed down, in walks a client with a potential legal malpractice claim against his attorney who allegedly sold the client “down the river” at a mediation, which the client did not find out about until after the deal was done. But the client is now foreclosed from pursuing that claim – or even considering it. An injustice? Who knows as the client will never find out; he cannot.<br /> So what will happen now in California? My sense is that the trial lawyer groups in California will mount a campaign to the California Legislature to amend the statute to overrule Justice Baxter. With a democratic governor, and a lawyer, Governor Brown, there may be a good chance of altering this rule which puts the clamps on claims that arise from a client’s participation in mediation. There is no reason to protect anyone from a sound legal claim if they do not do their job or breach their duties to those to whom they are owed. Professional responsibility is just that – a responsibility to conduct ourselves in any process relating to our representation of a client. What is more important than the mediation process which is designed to allow clients to explore a settlement alternative to trial. There is no reason to allow any protection from professional responsibility and the standards that we must meet in such an important aspect of the overall litigation process.<br /> I agree with Mr. Kichaven: it is a bad decision, is against the weight of thought and analysis as manifested by the Uniform Mediation Act, and needs to be overruled by the Legislature.<br /> Let me here your views to gkornblum@kornblumlaw.com.<br />Good Mediating. . .Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0tag:blogger.com,1999:blog-1765624279363744561.post-23409878573694016432010-11-09T13:15:00.000-08:002010-11-09T13:18:55.134-08:00THE MODERN APPROACH TO RESOLVING DISPUTES – THE CASE FOR MEDIATION“The odds of a plaintiff's lawyer winning in civil court are two to one against. Think about that for a second. Your odds of surviving a game of Russian roulette are better than winning a case at trial. Twelve times better. So why does anyone do it? They don't. They settle. Out of the 780,000, only 12,000 or 1.5 percent ever reach a verdict. The whole idea of lawsuits is to settle, to compel the other side to settle. And you do that by spending more money than you should, which forces them to spend more money than they should, and whoever comes to their senses first loses. Trials are a corruption of the entire process and only fools who have something to prove end up ensnared in them. Now when I say prove, I don't mean about the case. I mean about themselves.”<br /><br />Lawyer Jan Schlictman, played by John Travolta, in the movie “A Civil Action.”<br /><br /> Anyone who has been involved in a lawsuit as a dispute resolution mechanism knows what a laborious and often mysterious process it can be. But the process is changing. The public is demanding a user-friendly system that encourages litigants to enter into early discussions about resolution of their dispute and avoid the time, expense and emotional drain of protracted litigation. <br /> It is incumbent upon us as client representatives to promote mediation as a desired alternative to trial, i.e. mediation instead of trial. We need to educate our clients about how this process works and show that there are advantages in this approach to dispute resolution.<br /> The approach to handling a client’s cause and managing litigation has changed. Efforts are in process to develop a more cooperative approach to litigation, particularly during discovery. The Sedona Conference Cooperation Proclamation represents “a coordinated effort to promote cooperation by all parties to the discovery process to achieve the goal of a ‘just, speedy, and inexpensive determination of every action.” <br /> The public has become intolerant of the notion of the trial lawyer as a “warrior” or “combatant.” Lawyers who work in litigation as problem solvers who can penetrate the process and assist in resolving a dispute, not perpetuating it , are what the public wants. <br /> A settlement is the best economic day for a client, considering the present value of money, and the cost of taking a case into the pre-trial and trial states (and possibly through appeal); the client has the use of funds now rather than the hope of some recovery later. The costs of litigation often surprise clients, particularly if expert testimony from physicians or technical experts is needed. The fees for these experts are quite high, usually involving several hundred dollars per hour. Considering the amount of time that experts need to prepare, testify at deposition and then appear in court, several thousands of dollars can be incurred quickly by just this aspect of the case.<br /> In my view, settlement is the ultimate victory. It takes the decision making away from a third-party – a judge or jury – and puts it in the hands of the parties. Settlement results only from consent, so a case is settled when the parties have retained control over the outcome and have carved out a result for themselves. It does not happen unless there is agreement. <br /> Studies have shown that the parties to a dispute risk more by going to trial if they walk away from a reasonable opportunity to settle. In of hundreds of cases in which negotiations have been conducted but the parties have not settled the results reveal a party who rejected settlement often does worse at trial. <br /> Mediation has resolution of a dispute as its objective. The parties in a mediation know they have come to resolve their differences. The intermediary or neutral – the mediator – has the sole job of accomplishing that goal. It is a dedicated forum for closure. <br /> Over the last several years, mediation has become the more popular means of resolving disputes. Mediation is available to litigants to achieve settlement. It is often overlooked by lawyers in the beginning stages of litigation, when mediation can lead to an early— and appropriate— settlement. This is a big mistake, as it is at this early stage of litigation that the “best deal” can be achieved before the expense of protracted litigation.<br /> There is a great deal of confusion among lay persons as to the difference between arbitration and mediation. These are forms of alternative dispute resolution, alternatives to a trial in the courthouse. Court systems are now designed to make sure that parties are advised about these alternatives and how they can expedite the resolution of a dispute and avoid the risks and expense (not to mention the emotional drain) of full-blown litigation. Many court systems have programs for early resolution, including the federal court in San Francisco, which has been a pioneer in these alternatives for resolving disputes without a trial.<br /> Private mediation is a “supervised negotiation” away from the courthouse, with a trained and experienced mediator who has the skills of getting parties to talk and exchange views in an attempt to resolve their differences. This is in contrast to an arbitration in which the arbitrator actually decides the case. Our clients often do not understand the difference and it is our job to educate them on the mediation alternative to trial. <br /> For example, the client must understand that:<br />• In mediation, the mediator guides the parties through the negotiation process so that any resolution comes because the parties agree. <br />• The mediator is not a decision maker, but a facilitator. <br />• The mediator is chosen by agreement only; a party cannot be forced to accept a mediator of a dispute. <br />• Mediators work in all aspects of litigation: complex civil cases, personal injury, professional negligence, complex insurance disputes and family law matters, particularly divorces and custody matters. <br />• A mediation is voluntary and is not binding. A settlement is reached only if the parties agree. <br />• A mediation can last from a few hours to several days (not necessarily in succession). Often the parties exchange “briefs” on their position before the mediation.<br />• Most important to note is that a mediation is confidential. By law, what takes place during a mediation cannot be used in the lawsuit as evidence. A trial court or jury does not hear about anything that was discussed during the mediation, nor is the subject of the parties’ respective positions at a mediation a proper subject of testimony at trial.<br /> My experience is that the mediation process works well if certain conditions are met. First, the parties must be prepared to mediate. They must know their case well and have discussed their position with their lawyer and set some realistic goals for settlement discussions. Second, the parties must go to the mediation with a good faith desire to resolve the case. Third, a mediator must be chosen who is the right person for the case – someone whose approach to mediation fits the type of case and the parties involved. For example, if the case is volatile, then someone with a low-key style, using diplomacy more than persuasion, may be the right choice. On the other hand, if the parties are at odds, it may take someone with stature (such as a retired judge of some preeminence) to bring the parties together. And fourth, the mediator must be willing to work, to roll up the sleeves and stay the course until all settlement alternatives are explored. The basic rule is to keep the parties talking. So long as the parties are willing to communicate, there is a chance for a negotiated resolution.<br /> As time goes by, our judicial system will rely more and more on courts and counsel directing litigants to a mediation alternative to litigation. The earlier the better.Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0tag:blogger.com,1999:blog-1765624279363744561.post-18544727296147981022010-11-09T13:13:00.000-08:002010-11-09T13:15:09.157-08:00THE OPENING DEMAND AT MEDIATION: HOW TO VIEW THE FIRST SHOT OVER THE BOW“Or what king, going out to wage war against another kind, will not sit down first and consider whether he is able with ten thousand to oppose the one who comes against him with twenty thousand? If he cannot, then, while the other is still far away, he sends a delegation and asks for the terms of peace.”<br /><br />Luke 14:25-33<br /> Assessing when and how to approach your adversary about mediating a claim presents a challenge to any of us representing a client in litigation. Even more challenging, I find, is determining what the initial demand should be. As a lawyer frequently representing the plaintiff in litigation, I feel the responsibility to not only provide the opposition with a clear statement of my client’s case but also one that justifies considering settlement. You have to start someplace, and it is customary for me – as is usually the case – for the plaintiff to make the first bid – the initial demand for settlement. I also customarily submit that number in an initial demand package, or if negotiations are focused on a mediation, in the mediation statement which I submit at least two weeks – and sometimes earlier – before the mediation takes place.<br /> The question is what should that number be? <br /> Let’s talk strategy and let’s also talk about how the client views the numbers. First of all, I certainly avoid giving the client a bottom line number before the mediation or even at the mediation -- or a number which I recommend be the “bottom line” for settlement. Negotiations can change the view about a case. That certainly is true about a mediation. Much can be learned during the day about the case which can change its value.<br /> My San Francisco Bar colleague, Michael Carbone, a full time mediator who writes regularly on the topic of mediation, says this about concocting settlement demands and strategies: “Clients are often fixated on what the bottom line should be. This approach is understandable, but should nevertheless be discouraged. A demand number, a target (or ‘wish’) number, and a walkaway number can all be discussed with clients, but with the caveat that one or more of these numbers may need to change during the course of the mediation.” (M. Carbone, “Resolving It,” Vo.l 1, No. 10, October 2010.)<br /> So you have to remain flexible regarding the numbers during the mediation.<br /> But back to the initial demand. If it is too high, it invites resistance to negotiations by the opposition. If it is too low, then, of course, you are essentially bargaining below where you should be to drive the case value to an acceptable settlement point. The initial demand has to leave room for negotiation. We all know it is to get the process started, and is not the number that is expected to be the final settlement number. Similarly, the defense is not expected to put its “last, best and final” number on the table in its first offer.<br /> Here are some thoughts on how to structure that first shot.<br />• What are the economics of the case? Have you presented a strong case and support for the damages to be claimed at trial? Are there soft spots?<br />• How does the opposition negotiate? Are they hardnosed or cooperative? Will they listen to the mediator? Is every first demand from a plaintiff considered unreasonable, or are they likely to respond to an invitation to bargain?<br />• Does your case have aggravated liability facts which adds potential to the outcome?<br />• Do you need lots of negotiating room?<br />• Is there an expectation that the plaintiff will show considerable movement during the negotiations?<br />• Who is the mediator and what his the approach likely to be taken by the neutral? No matter what the initial demand and offer, will the mediator work to get the parties into the “field of play” (aka: the reasonable negotiating range)?<br /> In determining that first demand, first look at the hard economic damages which are likely to be viewed as clearly related to the wrongdoing. Second, if there are soft numbers in addition, which may be questionable or have less evidentiary support, they still should be cranked into the demand to provide negotiating room. Third, in a personal injury case, the claims for future medical expenses, and also impairment to earning capacity should be quantified and supported. Fourth, you have to obviously evaluate the potential for general damages, past and future..<br /> Often I have jury verdicts research done to try to find comparable cases with verdicts that can serve as a basis for evaluation.<br /> Once I pencil out these numbers, I then place a value on the case using a range of a low result, mid result and very good result. After that I decide what additional sum I need to add to this number to negotiate given the factors outlined above. Maybe I need to add 30-50% to give me negotiating room, possibly even more if I think the other side is going to expect more give than take on the plaintiff’s side. <br /> I also need to dispel the notion that the settlement number is mid point between the initial demand and $0, which sometimes suspect is the perception of the defense. That is rarely the situation from my perspective.<br /> The point is that the first demand must have a rational basis in light of the potential damages claims, so outlining those claims first is critical. They have to appear solid, and not unreasonable or if potentially unreasonable, perhaps just above the line of reasonableness.<br /> The defense will likely advise the mediator that the initial demand as way too high in any event (of course it is high, but it is designed to start the bargaining process), so giving yourself some room to come down without compromising your ability to negotiate is important. Remember, you can always go down, but not up! So, if you going to err, be it an err that is high, not low!<br />Until next time, GOOD MEDIATING. . . .<br /> <br /> <br /> <br /> <br /> . <br /> <br /> <br />.Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0tag:blogger.com,1999:blog-1765624279363744561.post-10552537447709471262010-08-23T11:00:00.001-07:002010-08-23T11:00:21.214-07:00More on the Case for MediationMORE ON THE CASE FOR MEDIATION: UNDERSTANDING THE PROCESS BETTER<br />By: Guy O. Kornblum, Esq. <br /><br /> We all realize that mediation as a dispute resolution mechanism has become part of the litigation process in a big way. It should be factored into your client’s Litigation Management Plan. Few cases are not mediated at some point these days. We all have much to learn about this process. The new LCA ADR Institute is an effort to promote a better understanding of the process. The program at the Fall Meeting in October is a first step in creating a forum for a dialogue among the Fellows about how we can better represent our clients in mediations, and take advantage of what it has to offer as a means of negotiating a resolution of disputes in which our clients are involved.<br /> The idea that parties can meet and discuss, in a confidential setting, alternatives for resolving a dispute – large or small – is welcome because full blown litigation, and even working up a case for trial is an expensive and time consuming process as we all know. Economics alone dictates that we explore resolution at a mediation, which provides an opportunity for a day long or more discussion with a neutral who is devoting his or her time to facilitating a settlement. This a far cry from the eve of trial settlement conferences that we used to experience in the “old days” when judges did not manage their calendars, ADR was not even in its gestational period, and sitting judges had precious little time to learn about a case until you entered the courtroom for trial. <br /> The ADR process – particularly mediation – is consistent with the movement for a more cooperative litigation process in which collaborative efforts are being encouraged. See, e.g. “The Sedona Conference Cooperation Proclamation Process,” The Sedona Conference Working Group Series, published in 2008 (www.thesedonaconference.org). As is stated in the report, “The Sedona Conference launches a coordinated effort to promote cooperation by all parties in the discovery process to achieve the goal of a just, speedy, and inexpensive determination of every action.”<br /> When I started law practice in the mid 1960's, the word “mediation” was not commonly used. I am not sure I heard the word more than a couple of times while in law school. As a young trial lawyer, the common practice was that settlement was not really discussed until a mandatory settlement conference right before trial. Before that, if a case settled, it was because the attorneys did so, or the insurance adjuster jumped in and negotiated “the file” directly with the plaintiff’s lawyer. Often the first real opportunity to negotiate a case was the “Mandatory Settlement Conference,” which later became part of the court rules, and which ordinarily was held quite close to trial. Other than direct negotiations, there was little involvement by the court in settlement talks before then. At that time there were no Case Management Conferences. <br />Courts were ordinarily not very active in the case until a Pre-trial Conference was held, at which time the court might inquire about what settlement talks have taken place, and if the parties were interested in a judge, other than the trial judge, meeting with them to see if some settlement efforts could result in a resolution. The federal courts were required to provide for ADR procedures in civil actions in the Alternative Dispute Resolution Act of 1988 (28 U.S.C. sec. 651 et seq.). Prior to that, in 1985, California provided for Mandatory Settlement Conferences in Rule 222, California Rules of Court. <br /> The words “alternate dispute resolution” or “ADR” were not in our vocabularies. Private dispute resolution services did not exist. Judges were elected or appointed to the bench and stayed to retirement. They did not leave these careers until that time. There were no jobs as private mediators to lure them away or provide employment after retiring. Frankly, as I look back on this, we were wasting a valuable resource in good settlement judges leaving the bench and essentially retiring from the profession altogether.<br /> Now, the situation is much different. Private dispute resolution services and full time mediators abound. There are excellent training courses for mediators and new rules for governing that practice. Certification for mediators may be around the corner. Standards have been set for mediators in the conduct of a mediation. (See, e.g., Cal. Rules Court 3.850 et seq.) While it seems that there are more mediators than lawyers, the litigation process seems to demand this resource for dispute resolution. <br /> We, as lawyers, must rise to the occasion. We need to do a better job of managing litigation especially in the more complex cases, so that resolution and settlement are part of the planning mechanism. This forces the parties to think about where they are going, what the results might be, and how much it will cost. That is, a “cost/benefit” analysis is part of the initial planning process and evaluation of the case.<br /> One of the very important skills of a true trial lawyer or “litigator” is to know how to leverage a case to the point at which the parties are motivated to discuss settlement. I describe this point as a “plateau for resolution.” That is, it is a point where the parties have an opportunity to see what has occurred, evaluate their respective positions, and then look down the line at what will be done as the case progresses towards trial and a “forced resolution.” Does your client want to proceed? Does it know the risks? Is it aware of the significant costs involved? What is the potential settlement range versus the “net” that is likely to result if the case is tried? Recognition of this plateau and then communicating with the client about the case is an essential ingredient to serving the client’s needs. It is our duty to lead our clients through this process of selecting the manner in which the client wishes to reach a resolution. <br />Consider how it would be if in every case at the outset, a) the case must be set for a mediation no later than 6 months after filing the complaint, unless good cause is shown why this date should be extended, and b) the parties must file with the court a discovery plan that has the objective of allowing them to conduct sufficient discovery to be prepared to discuss settlement at mediation. The federal courts and some state courts have pieces for this in place, but how would our cases be processed if what I have proposed were a firm rule in the court system, which would require a motion on good cause to alter? The pressure would be on, cases would be worked up quickly, and the parties would have a much earlier dialogue than we likely experience now.<br /> As part of the learning process, I highly recommend you obtain and read:<br /> R. Kiser, “Beyond Right and Wrong: The Power of Effective Decision Making for Attorneys, and Clients,” Springer Science+Business Media, www.springer.com (2010);<br /> J. MacFarlane, “The New Lawyer: How Settlement is Transforming the Practice of Law,” UBS Press, www.ubcpress.ca.Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0tag:blogger.com,1999:blog-1765624279363744561.post-27890718302644701622010-07-12T10:49:00.000-07:002010-07-12T10:51:14.889-07:00The Modern Approach to Resolving Disputes-- The Case for Mediation“The odds of a plaintiff's lawyer winning in civil court are two to one against. Think about that for a second. Your odds of surviving a game of Russian roulette are better than winning a case at trial. Twelve times better. So why does anyone do it? They don't. They settle. Out of the 780,000, only 12,000 or 1.5 percent ever reach a verdict. The whole idea of lawsuits is to settle, to compel the other side to settle. And you do that by spending more money than you should, which forces them to spend more money than they should, and whoever comes to their senses first loses. Trials are a corruption of the entire process and only fools who have something to prove end up ensnared in them. Now when I say prove, I don't mean about the case. I mean about themselves.”<br /><br />Lawyer Jan Schlictman, played by John Travolta, in the movie “A Civil Action.”<br /><br /> Anyone who has been involved in a lawsuit as a dispute resolution mechanism knows what a laborious and often mysterious process it can be. But the process is changing. The public is demanding a user-friendly system that encourages litigants to enter into early discussions about resolution of their dispute and avoid the time, expense and emotional drain of protracted litigation. <br /><br /> It is incumbent upon us as client representatives to promote mediation as a desired alternative to trial, i.e. mediation instead of trial. We need to educate our clients about how this process works and show that there are advantages in this approach to dispute resolution.<br /><br /> The approach to handling a client’s cause and managing litigation has changed. Efforts are in process to develop a more cooperative approach to litigation, particularly during discovery. The Sedona Conference Cooperation Proclamation represents “a coordinated effort to promote cooperation by all parties to the discovery process to achieve the goal of a ‘just, speedy, and inexpensive determination of every action.” <br /><br /> The public has become intolerant of the notion of the trial lawyer as a “warrior” or “combatant.” Lawyers who work in litigation as problem solvers who can penetrate the process and assist in resolving a dispute, not perpetuating it , are what the public wants. <br /><br /> A settlement is the best economic day for a client, considering the present value of money, and the cost of taking a case into the pre-trial and trial states (and possibly through appeal). From the plaintiff’s perspective, the client has the use of funds now rather than the hope of some recovery later. On the plaintiff and defense sides, the costs of litigation often surprise clients, particularly if expert testimony from physicians or technical experts is needed. The fees for these experts are quite high, usually involving several hundred dollars per hour. Considering the amount of time that experts need to prepare, testify at deposition and then appear in court, several thousands of dollars can be incurred quickly by just this aspect of the case.<br /><br /> In my view, settlement is the ultimate victory. It takes the decision making away from a third-party – a judge or jury – and puts it in the hands of the parties. Settlement results only from consent, so a case is settled when the parties have retained control over the outcome and have carved out a result for themselves. It does not happen unless there is agreement. <br /><br /> Studies have shown that the parties to a dispute risk more by going to trial if they walk away from a reasonable opportunity to settle. In of hundreds of cases in which negotiations have been conducted but the parties have not settled the results reveal a party who rejected settlement often does worse at trial. <br /><br /> Mediation has resolution of a dispute as its objective. The parties in a mediation know they have come to resolve their differences. The intermediary or neutral – the mediator – has the sole job of accomplishing that goal. It is a dedicated forum for closure. <br /><br /> Over the last several years, mediation has become the more popular means of resolving disputes. Mediation is available to litigants to achieve settlement. It is often overlooked by lawyers in the beginning stages of litigation, when mediation can lead to an early— and appropriate— settlement. This is a big mistake, as it is at this early stage of litigation that the best deal can be achieved before the expense of protracted litigation.<br /><br /> There is a great deal of confusion among lay persons as to the difference between arbitration and mediation. These are forms of alternative dispute resolution—that is, alternatives to a trial in the courthouse. Court systems are now designed to make sure that parties are advised about these alternatives early and how they can expedite the resolution of a dispute and avoid the risks and expense (not to mention the emotional drain) of full-blown litigation. Many court systems have programs for early resolution, including the federal court in San Francisco, which has been a pioneer in these alternatives for resolving disputes without a trial.<br /><br /> Private mediation is a “supervised negotiation” away from the courthouse, with a trained and experienced mediator who has the skills of getting parties to talk and exchange views in an attempt to resolve their differences. This is in contrast to an arbitration in which the arbitrator actually decides the case. Our clients often do not understand the difference and it is our job to educate them on the mediation alternative to trial. <br /><br /> For example, the client must understand that:<br />• In mediation, the mediator guides the parties through the negotiation process so that any resolution comes because the parties agree. <br />• The mediator is not a decision maker, but a facilitator. <br />• The mediator is chosen by agreement only; a party cannot be forced to accept a mediator of a dispute. <br />• Mediators work in all aspects of litigation: complex civil cases, personal injury, professional negligence, complex insurance disputes and family law matters, particularly divorces and custody matters. <br />• A mediation is voluntary and is not binding. A settlement is reached only if the parties agree. <br />• A mediation can last from a few hours to several days (not necessarily in succession). Often the parties exchange “briefs” on their position before the mediation.<br />• Most important to note is that a mediation is confidential. By law, what takes place during a mediation cannot be used in the lawsuit as evidence. A trial court or jury does not hear about anything that was discussed during the mediation, nor is the subject of the parties’ respective positions at a mediation a proper subject of testimony at trial.<br /><br /> My experience is that the mediation process works well if certain conditions are met. First, the parties must be prepared to mediate. They must know their case well and have discussed their position with their lawyer and set some realistic goals for settlement discussions. Second, the parties must go to the mediation with a good faith desire to resolve the case. Third, a mediator must be chosen who is the right person for the case – someone whose approach to mediation fits the type of case and the parties involved. For example, if the case is volatile, then someone with a low-key style, using diplomacy more than persuasion, may be the right choice. On the other hand, if the parties are at odds, it may take someone with stature (such as a retired judge of some preeminence) to bring the parties together. And fourth, the mediator must be willing to work, to roll up the sleeves and stay the course until all settlement alternatives are explored. The basic rule is to keep the parties talking. So long as the parties are willing to communicate, there is a chance for a negotiated resolution.<br /><br /> As time goes by, our judicial system will rely more and more on courts and counsel directing litigants to a mediation alternative to litigation. The earlier the better.Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0tag:blogger.com,1999:blog-1765624279363744561.post-55152020879915857582010-05-26T09:47:00.000-07:002010-05-26T09:57:55.641-07:00SOME BASICS OF NEGOTIATING AT A MEDIATIONWhen I started law practice in the mid-1960s the word 'mediation' was not commonly used. I am not sure I heard the word more than a couple of times while in law school at Hastings College of the Law, University of California. If I did, it meant something different than it means today – some type of evaluative process that was not necessarily related to bargaining to get a settlement.<br /><br />As a young trial lawyer, the common practice was that settlement was not really discussed until a mandatory settlement conference right before trial. Before that if a case settled it was because the attorneys did so, or the insurance adjuster jumped in and negotiated the file directly with the plaintiff's lawyer.<br />The words alternate dispute resolution or ADR were not in our vocabularies. Private dispute resolution services did not exist. Judges were elected and appointed to the bench and stayed to retirement. There were no jobs as private mediators to lure them away or provide employment after retiring. Frankly, as I look back on this, we were wasting a valuable resource in good settlement judges leaving the bench and essentially retiring from the profession altogether.<br /><br />Now, the situation is much different. Private dispute resolution services and full time mediators abound. There are excellent training courses for mediators and new rules for governing that practice. Certification will soon be available and standards will be set. While it seems that there are more mediators than lawyers, the litigation process seems to demand this resource for dispute resolution as an alternative to plodding through the litigation machinery at the courthouse.<br /><br />The mediation process is an opportunity – a time for you, as the legal representative of your client, to avoid putting your client through the litigation “mill” (aka: process) and get results. I see mediation as a definite positive process, but only if you, as the lawyer, have the right approach. I enjoy trials and arbitrations, court hearings, and appeals. But, after all these years, I get great satisfaction when I am able to get a good settlement early in the case before we incur large litigation expenses. The client has the money to begin the life restructuring process and has avoided the pressures and uncertainties of litigation, which more often than not would only add to the emotional injury already caused by a serious accident, injury or illness which led to the litigation in the first place.<br /><br />To put this in perspective, we are talking about how to get your case resolved early in the more formalized process of mediation S the voluntary process in which the parties agree to conduct negotiations of a dispute using a neutral intermediary in a non-binding process. The mediator has no power to decide anything. The job of the mediator is to try to get the parties to agree on the terms of resolving this conflict and disputed matter. While you are an advocate in this process, the advocacy skills that are involved are much different than those that would be used in the courtroom. <br /><br />Also, lawyers – and courts -- are doing a better job of managing litigation, at least in the more complex cases, so that resolution and settlement are part of the planning and case management mechanism. That is good because it forces the parties to thing about where they are going, what the results might be, and how much it will cost. That is, a cost/benefit analysis is part of the initial planning process and evaluation of the case.<br /><br />In order to get good results in mediation, there are basic principles that I have found should be followed. <br /><br />Here they are: <br /><br /><span style="font-weight:bold;">Principle 1</span>: Understand What a Mediation Is All About<br /><br /><span style="font-weight:bold;">Principle 2</span>: Prepare Your Client for the Mediation Process <br /><br /><span style="font-weight:bold;">Principle 3</span>: Put the Pressure on the Defendant to Come to the Mediation Table<br /><br /><span style="font-weight:bold;">Principle 4</span>: Get the Information You Need to Mediate<br /><br /><span style="font-weight:bold;">Principle 5</span>: Get to Mediation Early, Not Late<br /><br /><span style="font-weight:bold;">Principle 6</span>: Use Your Experts <br /><br /><span style="font-weight:bold;">Principle 7</span>: Select the Mediator Best Suited for Your Case<br /><br /><span style="font-weight:bold;">Principle 8</span>: Prepare the Mediator<br /><br /><span style="font-weight:bold;">Principle 9</span>: Be the Diplomatic Advocate at the Mediation: Make “Love” Not War<br /><br /><span style="font-weight:bold;">Principle 10</span>: Know the Numbers and When the Best Deal Is on the Table <br /> <br />Effective resolution of disputes should be our goal. Perhaps that is trial, but more often it will be a negotiated result. And, in most of those cases, from what I can see, there is a mediator who will assist the parties to that end.<br /><br />I encourage all to make sure that all cases are tested in the negotiations arena.Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0tag:blogger.com,1999:blog-1765624279363744561.post-74992411129219929452010-05-26T09:41:00.000-07:002010-05-26T09:46:57.781-07:00HOW HAS THE ECONOMIC DOWNTURN AFFECTED THE MEDIATION PROCESS?Have our settlement strategies and alternative dispute resolution programs, which are now part of our courts’ case management system, been impacted by the economic downturn? Do the circumstances pose new hurdles to getting cases resolved by mediation? <br /><br />I have been moderating a series of Webinars on mediation related topics aimed at the trial lawyer and mediation advocate. I have been joined by several colleagues, including my long time friend, Martin Quinn, who is a full time mediator with JAMS in San Francisco. Martin is an outstanding mediator who came to his second career some 10 or so years ago after serving as a prominent litigator in San Francisco with two of its top law firms. Martin has been a mediator in a number of our firm’s cases.<br /><br />We discussed a number of issues a few weeks ago relating to the impact the recession has had on the settlement process. I realized several observations as a result of our discussion and our dialogue beforehand. These are my views only, and I would not presume to represent Martin Quinn as agreeing with these comments. The information is anecdotal, i.e. it is based on what I have seen and also what I suspect may be the case. I have not done a survey, except informally with many of my colleagues. Here are a few of my observations:<br /><br />• Has the recession affected how mediations are conducted? From what I hear, it has. Cases are a bit tougher to settle because carriers are cautious about cash. No surprise there as from what I have read, most everyone, even the well to do, are not spending as much and are more cautious in buying. That means that in mediation, a plaintiff has to have the leverage and information to persuade the insurer to pay monies on behalf of its insured now rather than later. Defense costs are a factor as this represents an ongoing expense that can be avoided. Perhaps more emphasis must be placed on this aspect, as well as the exposure.<br /><br />• Are litigants showing any reluctance to go to mediation? Are they delaying the process? It appears that this has been occurring. Some defendants are not opposed to mediation but want to wait until there is some turn in the economy to ease the uncertainty that a turn around is headed its way. Earlier in the year, defendants were known to stall in agreeing to mediation if not faced with an immediate trial date, saying “maybe late summer or early fall.” So we are almost there; will the defendant be more willing to mediate now?<br /><br />• Are the parties engaging in more direct negotiations rather than using mediation? I have heard that is the case. My experience is, however, that mediation is still the preferred mechanism for resolving disputes, and I have seen no change in that approach in the cases we have settled this year.<br /><br />• How has the recession affected a plaintiff’s practice; what am I seeing as to the a) willingness of defendants to go to mediation, and b) defense counsel’s willingness to recommend mediation? I think I have covered this. But I also believe the reluctance is easing a bit. Still, it is important to have your case ready for mediation before approaching the subject and be prepared to use all leverage you can to bring defendants to the mediation table. You also need to do the economic analysis for settlement vs. trial. “Cash is King,” as the saying goes. <br /><br />• How are litigants approaching the cost of mediation? Are there deals to be cut with mediators? I have not seen any mediators offer or respond to proposals for reduced fees. But I have noted that pre and post-mediation billings are often underbilled or “light.” My colleagues who are mediators, however, tell me that business is business and “deals” are to be made for reduced fees. <br /><br />• Are the parties cutting back on discovery before mediation to save money, hoping the case will settle? I have not seen this. Indeed, in some cases I have seen defense firms want to hasten certain discovery before the mediation. No comment.<br /><br />• How has the recession affected the mediation process? Are cases tougher to settle? Does it take longer? See above.<br /><br />• Impact on multiple defendant cases? Are they tougher to settle? These are always tougher to settle. My experience this year is that the process takes longer with multiple defendants and that it is more difficult to get the defendants to split the settlement “pot” among themselves. Mediators have told me this also.<br /><br />• What are your suggestions for getting cases to mediation with the economy likely not to show much real, sustained recovery until sometime in 2010? If you are trying to get your case settled early, that may be difficult because you may not have the leverage and the motivation by the defendant and its counsel may not be present. Thus, it may take more work to posture the case for mediation; that is, written discovery, document review and some depositions may need to be taken to gain the advantage and information which will persuade the defendants that now is the time to get the parties to the table. Also, getting a trial date as quickly as possible is important to put pressure on the defendants to settle. That always helps.Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0tag:blogger.com,1999:blog-1765624279363744561.post-84847828525324104262010-05-26T09:37:00.000-07:002010-05-26T09:41:07.024-07:00DOES YOUR ADVERSARY AND HIS/HER CLIENT HAVE THE RIGHT ATTITUDE ON MEDIATION DAY?What do you know about the other side’s willingness to settle the case and interest in real resolution? He/she may simply be interested in getting “free discovery” or in trying to convince you and your client to take less than the case’s “good faith” value.<br /><br />Obviously if the opposition – either the client or client representative (aka: claims person) or his/her lawyer—is not fully engaged in the process of mediation, the chances for wasting the day are high. To avoid this, find out beforehand the temperature of your opposition. Will he/she encourage a focused mediation?<br /><br />Here are some ways to get a read of the folks on the other side:<br /><br /><span style="font-weight:bold;">Direct Contact</span>: There is nothing wrong with a face-to-face discussion or a phone call to discuss how best to approach the mediation. Too often we rely on email to conduct our case discussions. Email is fine for routine matters and confirming dates for case activity and calendar items. I, however, am a bit “old school”; I like to talk to counsel personally face-to-face or by phone to gauge the level of interest. There may be some puffing in the exchange, but if you have a professional relationship with your adversary, you should be able to break through and determine if there is a real interest in settlement.<br /><br /><span style="font-weight:bold;">Talk to the Mediator</span>: Most mediators I know want to settle cases. It is how they gain a reputation as a “closer.” If you have doubts about the sincerity of your opposition in reaching a reasonable settlement, and direct contact is not in the cards, talk to the mediator. I have found mediators willing to contact opposing counsel and have a private and preliminary discussion to test the waters. It may be that scheduling the mediation is an issue, as your opposition may have other work, may be preoccupied with other matters, or simply cannot reach his/her client. Here, a later date than you had hoped for may be preferable.<br /><br /><span style="font-weight:bold;">Talk to Others</span>: Find out who has mediated with your adversary previously and call them. I often use a listserv for the San Francisco Trial Lawyers Association (but make sure your adversary is not tapped into it) or I call colleagues to learn if anyone has some background on my opposing attorney and his/her client.<br /><br /><span style="font-weight:bold;">Read the “Tea Leaves”</span>: Sometimes you can discern an adversary’s interest in a mediated result by reading the papers in your case. If there is hostility, mediation may calm the waters and focus the parties on resolution rather than further fighting. Or it may reveal an underlying resistance that you have to overcome. Briefs or discovery responses can reveal hostility, bitterness, anger or other emotions that serve as a barrier to a fruitful mediation.<br /><br /><span style="font-weight:bold;">Put Some Pressure On</span>: Don’t underestimate the power of pressure – significant written discovery requiring your opposition to reveal its case, focused requests for admission that require the other side to admit or deny key facts (and reveal the facts about any denial), or deposition notices can gain your adversary’s attention. These tactics can result in an enhanced interest in negotiations. Sustained pressure can get a case to mediation quickly, but that pressure must be consistent. If you serve discovery, be prepared to “meet and confer” and file motions to compel if there is unjustified resistance or meritless objections or evasive responses.<br /><br /><span style="font-weight:bold;">Write a Letter or Email</span>: Face-to-face or direct contact may be too aggressive. If so, an email or letter inquiring about a real interest in negotiating the case is worth a try.<br /><br /><span style="font-weight:bold;">Past Experience</span>: Past experience with the defendant or opposing counsel may be telling. We have had cases against various insurance companies on more than one occasion. I have a good sense for how some of them approach litigation— some are willing to explore resolution at an early stage, others are not. Often they use the same lawyers, so past experience in those cases can give you a good read on the prospects for a successful mediation and the timing for such. The timing may be early, after some discovery (such as your client’s deposition has been taken), or after a limited exchange of information.<br /><br /><span style="font-weight:bold;">Check Out Other Mediations Involving Counsel or Parties</span>: I have mediator friends who have experience with insurance company defendants. They often discuss what they’ve heard about those companies’ attitudes and approaches to mediation, without revealing confidences. I frequently talk to colleagues about other law firms and those firms’ dealings with certain clients we see in our financial litigation, wrongful death and injury cases in which insurance companies are heavily involved (and other litigation in which there are repeat defendants).<br /><br />These are just a few thoughts on assessing how your adversary and his/her client may approach mediation. It is a good idea to assess and discuss this with your client before committing to the process.Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0tag:blogger.com,1999:blog-1765624279363744561.post-62359339388575681952010-04-06T14:55:00.000-07:002010-04-06T14:57:34.789-07:00How does the subject matter of a mediation affect the process? Does it make a difference in how you approach the mediation, select the mediator, and conduct the mediation? I think it does in a number of ways. Here are my thoughts:<br /><br /><span style="font-weight:bold;">Selection of the Mediator </span><br />This may be the most important factor relating to subject matter. Mediators with subject matter experience likely have an edge over those who do not. I am not saying that someone who is unfamiliar with the subject matter or law that governs the case cannot be effective; however, in some cases it really helps to have a mediator who knows how an industry works (e.g., insurance) or the law (e.g., intellectual property or employment disputes). I have been involved in many mediations (sometimes I represent the client in insurance issues but there is an underlying case that is the subject matter of the mediation) and it is really helpful to have a mediator who has already developed a body of knowledge and insight into the area of law which is at issue. It can give the parties – all sides – an edge towards resolution to have a mediator with that special knowledge. <br /><br /><span style="font-weight:bold;">Economic v. Emotional Claims</span> <br />Cases with simply economic damages – a business dispute for example – require a different approach from those which involve emotional claims. Some mediators are very good at evaluating business losses, but lack the ability to connect with wrongful death or serious injury cases or other cases in which there is a high emotional component. I have found that some mediators just do not have sensitivity to emotional claims, while others seem to sense those that have real value and are able to accept monetary evaluations that reflect how a jury might respond to these claims. <br /><br />Of course, the type of emotional claim is a consideration. For example, a wrongful death claim involving a young widow with three children or the loss of a long-standing spouse; both require serious thought on how to value those claims. And in my insurance bad faith cases there are often serious emotional claims based on an insurer’s refusal to pay, delay in paying, or attempting to “low ball” a claim involving serious injury or the loss of a home in a personal property damage claim. A mediator in these cases must be able to relate to these claims and deal with their compensation as an element of the damages component of the case being mediated. <br /><br /><span style="font-weight:bold;">Business Claims </span><br />Business cases require a mediator who has a business sense. Judges and lawyers who have been involved in business litigation while practicing or who have been heavily involved in the business side of the practice normally have a better insight into the these cases. I am not saying that those who do not cannot mediate business disputes, but it makes sense in complex business cases to select a mediator who has a head start on getting educated about the case. <br /><br /><span style="font-weight:bold;">Partnership and Closely Held Corporations and Family Business Matters</span> <br />I do some mediating from time to time. It is not my regular diet as I still enjoy the advocacy of litigation and the challenge of representing clients. One of my most difficult assignments as a mediator, however, was a family business matter involving a closely held corporation. The sister had founded the company and the brother had come in after some time to run it. The sister was the marketing and sales force, while the brother controlled the financing and administration. The father was also a numbers person and worked with the brother. As time went on, the brother and sister did not see eye to eye about much; they could hardly be in the same room. The dispute threatened to sink the company, and outside investors were involved. I was asked to mediate. What a difficult case. Despite my efforts, I could not bring the brother and sister to a center point. The father refused to help. After premediation exchanges and a full day of mediation, I had to declare an impasse. <br /><br />My sense is that I would have done better and had a greater chance of success if I had involved another mediator who had experience in family disputes, and perhaps even a non-lawyer. There are professionals out there who specialize in working with families who are wealthy and have ongoing business relationships or who are involved in ongoing businesses in which there are intrapersonal issues that impact the family business. <br /><br />I tried to get these folks to entertain the idea of involving someone like I have described, but they were so far into the personal issues that it was too late. Had I recognized the severe schism between the brother and sister before the mediation, I may have been able to involve another professional who could help in getting the parties to see the issues and coming to grips with a solution that would save the business. <br /><br />Next time! <br /><span style="font-weight:bold;"><br />Class Actions </span><br />Here, experience counts. There are special issues which arise in these cases, including damages assessments and evaluation of the class claims, administrative issues pertaining to the evaluation of the individual claims of class members and means of distribution, apportioning the payments among various defendants, and attorneys’ fees, just to name a few. While I have not been involved in the mediation of a large class claim, I do know from my colleagues that there are some excellent mediators who have had considerable experience with mediating these disputes. So it seems appropriate to search these mediators out and consider them for class actions. <br /><br /><span style="font-weight:bold;">Injury Cases with Multiple Defendants</span> <br />I find that injury cases with multiple defendants need a special kind of mediator – one who is skilled in dealing with typical plaintiff/defendant conflicts, as well as disputes between defendants and their carriers. Often there will be coverage issues with some of the insurers for the defendants, so those may be involved as well. Thus, you may have at least three layers of disputes: a) issues pertaining to the value of the plaintiff’s claim, b) issues pertaining to the apportionment of the loss among the defendants based on tort or contract concepts (tort as it pertains to the apportionment of the loss and contract based on contractual obligations among the defendants and indemnity provisions), and c) disputes between a defendant and its insurer. <br /><br />Mediators in these cases must be able to stay organized, keep dialogue going at all levels, and create a plan for bringing all the disputes to a head and resolving them at all levels. These are very challenging cases, and you need a mediator who is willing to roll of up his or her sleeves and stay with the process. Sometimes, the ultimate resolution may not happen all at once. For example, there can be an agreement to resolve the main case, but disputes remain among the defendants and their carriers. A creative mediator will know how to manage this type of mediation even if the complete resolution is done piecemeal. <br /><br /><span style="font-weight:bold;">Injury Claims with Complex Liens </span><br />Lien claims can provide big hurdles to the resolution of an injury case. Workers’ compensation insurers, health insurers, and the government all can stick their noses into a case and stymie the resolution process. I have found that it helps if before the mediation, as plaintiff’s counsel, to have contacted any lien claimants, advised them of the mediation, invited them to attend, and discussed numbers for resolving those lien claims as soon as it is apparent that the parties are headed for a mediation. Once that is done, you should have a discussion with the mediator before the first mediation session about your progress in trying to resolve these claims, and alert the mediator as to the status of your negotiations. If there are anticipated hurdles then the mediator may want to contact that lien claimant or its counsel before the mediation to identify the issues and prepare him or herself for dealing with them at the mediation session.Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0tag:blogger.com,1999:blog-1765624279363744561.post-2708556187794831332010-03-12T13:53:00.000-08:002010-03-12T13:55:29.190-08:00What do you know about the other side’s willingness to settle the case and interest in real resolution? He/she may simply be interested in getting “free discovery” or in trying to convince you and your client to take less than the case’s “good faith” value.<br /><br />Obviously if the opposition – either the client or client representative (aka: claims person) or his/her lawyer—is not fully engaged in the process of mediation, the chances for wasting the day are high. To avoid this, find out beforehand the temperature of your opposition. Will he/she encourage a focused mediation?<br /><br />Here are some ways to get a read of the folks on the other side:<br /><br /><span style="font-weight:bold;">Direct Contact</span>: There is nothing wrong with a face-to-face discussion or a phone call to discuss how best to approach the mediation. Too often we rely on email to conduct our case discussions. Email is fine for routine matters and confirming dates for case activity and calendar items. I, however, am a bit “old school”; I like to talk to counsel personally face-to-face or by phone to gauge the level of interest. There may be some puffing in the exchange, but if you have a professional relationship with your adversary, you should be able to break through and determine if there is a real interest in settlement.<br /><br /><span style="font-weight:bold;">Talk to the Mediator</span>: Most mediators I know want to settle cases. It is how they gain a reputation as a “closer.” If you have doubts about the sincerity of your opposition in reaching a reasonable settlement, and direct contact is not in the cards, talk to the mediator. I have found mediators willing to contact opposing counsel and have a private and preliminary discussion to test the waters. It may be that scheduling the mediation is an issue, as your opposition may have other work, may be preoccupied with other matters, or simply cannot reach his/her client. Here, a later date than you had hoped for may be preferable.<br /><br /><span style="font-weight:bold;">Talk to Others</span>: Find out who has mediated with your adversary previously and call them. I often use a listserv for the San Francisco Trial Lawyers Association (but make sure your adversary is not tapped into it) or I call colleagues to learn if anyone has some background on my opposing attorney and his/her client.<br /><br /><span style="font-weight:bold;">Read the “Tea Leaves”</span>: Sometimes you can discern an adversary’s interest in a mediated result by reading the papers in your case. If there is hostility, mediation may calm the waters and focus the parties on resolution rather than further fighting. Or it may reveal an underlying resistance that you have to overcome. Briefs or discovery responses can reveal hostility, bitterness, anger or other emotions that serve as a barrier to a fruitful mediation.<br /><br /><span style="font-weight:bold;">Put Some Pressure On</span>: Don’t underestimate the power of pressure – significant written discovery requiring your opposition to reveal its case, focused requests for admission that require the other side to admit or deny key facts (and reveal the facts about any denial), or deposition notices can gain your adversary’s attention. These tactics can result in an enhanced interest in negotiations. Sustained pressure can get a case to mediation quickly, but that pressure must be consistent. If you serve discovery, be prepared to “meet and confer” and file motions to compel if there is unjustified resistance or meritless objections or evasive responses.<br /><br /><span style="font-weight:bold;">Write a Letter or Email</span>: Face-to-face or direct contact may be too aggressive. If so, an email or letter inquiring about a real interest in negotiating the case is worth a try.<br /><br /><span style="font-weight:bold;">Past Experience</span>: Past experience with the defendant or opposing counsel may be telling. We have had cases against various insurance companies on more than one occasion. I have a good sense for how some of them approach litigation— some are willing to explore resolution at an early stage, others are not. Often they use the same lawyers, so past experience in those cases can give you a good read on the prospects for a successful mediation and the timing for such. The timing may be early, after some discovery (such as your client’s deposition has been taken), or after a limited exchange of information.<br /><br /><span style="font-weight:bold;">Check Out Other Mediations Involving Counsel or Parties</span>: I have mediator friends who have experience with insurance company defendants. They often discuss what they’ve heard about those companies’ attitudes and approaches to mediation, without revealing confidences. I frequently talk to colleagues about other law firms and those firms’ dealings with certain clients we see in our financial litigation, wrongful death and injury cases in which insurance companies are heavily involved (and other litigation in which there are repeat defendants).<br /><br />These are just a few thoughts on assessing how your adversary and his/her client may approach mediation. It is a good idea to assess and discuss this with your client before committing to the process.Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0tag:blogger.com,1999:blog-1765624279363744561.post-20869084653411118922010-03-12T13:44:00.000-08:002010-03-12T13:50:14.906-08:00DO YOU HAVE THE RIGHT ATTITUDE ON MEDIATION DAY?Recently I was contacted by a representative of a local political group that heard some comments I made at a recent luncheon about my frustration with local politics and our City’s government. There seems to be no effort for consensus building and coming to grips with differences of opinion to implement solutions. Each member of our Board of Supervisors seems committed to a particular agenda, with no interest in resolving differences and creatively finding common ground.<br /><br />The conversation reminded me about how lawyers representing clients in mediation must have a different attitude from that which they carry into the courtroom. As trial lawyers and litigators we emphasize advocacy, putting the right spin on our client’s case to prevail on the issues presented and ultimately obtain the best result in an adversarial environment.<br /><br />That is not the right attitude for mediation. I have stressed in my writings on this subject the three “C’s” essential to a positive mediation day: Credibility, Confidentiality and Communication. While they are essential you, and your client, need to adopt a different attitude as well – one that fosters the common ground that the San Francisco political leaders seem unable to achieve. In my experience, the “mediation process” begins when the client first meets with our lawyers and staff to discuss the case. It is important that the client understand the difference between advocacy in the courtroom, where we fight hard for our client (taking strong positions on the issues) and the mediation conference room where a less adversarial, and more diplomatic demeanor, is appropriate (while not giving up on the strength of our clients’ cause).<br /><br />Here are some suggestions:<br /><br />1. Make sure the client understands the differences of courtroom advocacy and the approach to mediation, where we are trying to get the defendants to pay money to resolve the case. This is the figurative “more with honey” approach.<br /><br />2. Normally I avoid an opening statement – certainly one that is adversarial. Any initial comments are informational. I say to the defendants: “Here is what you need to hear about our case to evaluate it” or “Here is some additional information about this case that might help you.” No finger pointing, hostility or standing on a soap box. Some lawyers have hostile body language that only raises the room temperature; not good and it sends a bad message to the client. <br /><br />3. I use the mediator as my advocate. I try to get the mediator to make any adversarial points and be the “Devil’s Advocate” or, perhaps better, the “Angel’s Advocate.” Let the mediator do his/her work by questioning your opposition about its position in the case.<br /><br />4. I look for deal points we can agree on early in the negotiations to try to move the case to center. No matter how small, if there are points of agreement bring them to the surface early, identify them and paste them into the settlement document that you are crafting (in your mind) as you proceed. Four or five agreed-upon points gets you closer to the final resolution and sets the tone.<br /><br />5. Make sure the negotiations don’t get sidetracked on a major point of contention. If there is a major sticking point, try to work through it and get as much agreed upon as possible. Be prepared to compromise if the issue is a major one and you know the issue could increase the risk of loss or reduce the client’s recovery.<br /><br />It is much about attitude. Once the right attitude is embraced by all concerned, the approach focuses on resolution and compromise— and makes settlement more likely.Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0tag:blogger.com,1999:blog-1765624279363744561.post-26553467646059464882009-12-14T11:27:00.000-08:002009-12-14T11:33:16.306-08:00How the Subject Matter of a Mediation Affects the ProcessHow does the subject matter of a mediation affect the process? Does it make a difference in how you approach the mediation, select the mediator, and conduct the mediation? I think it does in a number of ways. Here are my thoughts.<br /><br /><span style="font-weight:bold;">Selection of the Mediator</span><br /><br />This may be the most important factor relating to subject matter. Mediators with subject matter experience likely have an edge over those who do not. I am not saying that someone who is unfamiliar with the subject matter or law that governs the case cannot be effective; however, in some cases it really helps to have a mediator who knows how an industry works (e.g., insurance) or the law (e.g., intellectual property or employment disputes). I have been involved in many mediations (sometimes I represent the client in insurance issues but there is an underlying case that is the subject matter of the mediation) and it is really helpful to have a mediator who has already developed a body of knowledge and insight into the area of law which is at issue. It can give the parties – all sides – an edge towards resolution to have a mediator with that special knowledge.<br /><br /><span style="font-weight:bold;">Economic v. Emotional Claims</span><br /><br />Cases with simply economic damages – a business dispute for example – require a different approach from those which involve emotional claims. Some mediators are very good at evaluating business losses, but lack the ability to connect with wrongful death or serious injury cases or other cases in which there is a high emotional component. I have found that some mediators just do not have sensitivity to emotional claims, while others seem to sense those that have real value and are able to accept monetary evaluations that reflect how a jury might respond to these claims.<br /><br />Of course, the type of emotional claim is a consideration. For example, a wrongful death claim involving a young widow with three children or the loss of a long-standing spouse; both require serious thought on how to value those claims. And in my insurance bad faith cases there are often serious emotional claims based on an insurer’s refusal to pay, delay in paying, or attempting to “low ball” a claim involving serious injury or the loss of a home in a personal property damage claim. A mediator in these cases must be able to relate to these claims and deal with their compensation as an element of the damages component of the case being mediated.<br /><br /><span style="font-weight:bold;">Business Claims</span><br /><br />Business cases require a mediator who has a business sense. Judges and lawyers who have been involved in business litigation while practicing or who have been heavily involved in the business side of the practice normally have a better insight into the these cases. I am not saying that those who do not cannot mediate business disputes, but it makes sense in complex business cases to select a mediator who has a head start on getting educated about the case.<br />Partnership and Closely Held Corporations and Family Business Matters<br /><br />I do some mediating from time to time. It is not my regular diet as I still enjoy the advocacy of litigation and the challenge of representing clients. One of my most difficult assignments as a mediator, however, was a family business matter involving a closely held corporation. The sister had founded the company and the brother had come in after some time to run it. The sister was the marketing and sales force, while the brother controlled the financing and administration. The father was also a numbers person and worked with the brother. As time went on, the brother and sister did not see eye to eye about much; they could hardly be in the same room. The dispute threatened to sink the company, and outside investors were involved. I was asked to mediate. What a difficult case. Despite my efforts, I could not bring the brother and sister to a center point. The father refused to help. After premediation exchanges and a full day of mediation, I had to declare an impasse.<br /><br />My sense is that I would have done better and had a greater chance of success if I had involved another mediator who had experience in family disputes, and perhaps even a non-lawyer. There are professionals out there who specialize in working with families who are wealthy and have ongoing business relationships or who are involved in ongoing businesses in which there are intrapersonal issues that impact the family business.<br /><br />I tried to get these folks to entertain the idea of involving someone like I have described, but they were so far into the personal issues that it was too late. Had I recognized the severe schism between the brother and sister before the mediation, I may have been able to involve another professional who could help in getting the parties to see the issues and coming to grips with a solution that would save the business. Next time!<br /><br /><span style="font-weight:bold;">Class Actions</span><br /><br />Here, experience counts. There are special issues which arise in these cases, including damages assessments and evaluation of the class claims, administrative issues pertaining to the evaluation of the individual claims of class members and means of distribution, apportioning the payments among various defendants, and attorneys’ fees, just to name a few. While I have not been involved in the mediation of a large class claim, I do know from my colleagues that there are some excellent mediators who have had considerable experience with mediating these disputes. So it seems appropriate to search these mediators out and consider them for class actions.<br /><br /><span style="font-weight:bold;">Injury Cases with Multiple Defendants</span><br /><br />I find that injury cases with multiple defendants need a special kind of mediator – one who is skilled in dealing with typical plaintiff/defendant conflicts, as well as disputes between defendants and their carriers. Often there will be coverage issues with some of the insurers for the defendants, so those may be involved as well. Thus, you may have at least three layers of disputes: a) issues pertaining to the value of the plaintiff’s claim, b) issues pertaining to the apportionment of the loss among the defendants based on tort or contract concepts (tort as it pertains to the apportionment of the loss and contract based on contractual obligations among the defendants and indemnity provisions), and c) disputes between a defendant and its insurer.<br /><br />Mediators in these cases must be able to stay organized, keep dialogue going at all levels, and create a plan for bringing all the disputes to a head and resolving them at all levels. These are very challenging cases, and you need a mediator who is willing to roll of up his or her sleeves and stay with the process. Sometimes, the ultimate resolution may not happen all at once. For example, there can be an agreement to resolve the main case, but disputes remain among the defendants and their carriers. A creative mediator will know how to manage this type of mediation even if the complete resolution is done piecemeal.<br /><br /><span style="font-weight:bold;">Injury Claims with Complex Liens</span><br /><br />Lien claims can provide big hurdles to the resolution of an injury case. Workers’ compensation insurers, health insurers, and the government all can stick their noses into a case and stymie the resolution process. I have found that it helps if before the mediation, as plaintiff’s counsel, to have contacted any lien claimants, advised them of the mediation, invited them to attend, and discussed numbers for resolving those lien claims as soon as it is apparent that the parties are headed for a mediation. Once that is done, you should have a discussion with the mediator before the first mediation session about your progress in trying to resolve these claims, and alert the mediator as to the status of your negotiations. If there are anticipated hurdles then the mediator may want to contact that lien claimant or its counsel before the mediation to identify the issues and prepare him or herself for dealing with them at the mediation session.Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0tag:blogger.com,1999:blog-1765624279363744561.post-64460399522909545252009-11-13T11:42:00.000-08:002009-11-13T11:46:01.961-08:00Using Experts or Consultants at MediationOne of the best techniques for settling cases at mediation is to take a consultant or expert witness with you to the session or at least have them available by telephone. I have used this approach in many cases with considerable success. The manner in which this is done varies depending on the complexity of the case, the extent of the consultant’s or expert’s involvement, and what disputes or unresolved issues depend on expert testimony.<br /><br />Here are some examples:<br /><br />• In an insurance long term disability bad faith case, plaintiff suffered from a serious inflammatory bowl disease. There were issues about the nature and extent of her medical problems, and the affect it had on our public defender client, who was frequently under the stress and pressures of her courtroom and client work. Her gastroenterologist was several hours away from the mediation site. We interviewed him on video for the mediation in a mini direct examination and offered the defense the opportunity to talk to him on the phone – with the interview protected by the confidential nature of the proceedings – to ask any questions for clarification. They did. The conversation lasted about 45 minutes, and the case settled well at the end of the day.<br /><br />• In a complicated tax shelter fraud case involving the use of life insurance in what was touted to be a legitimate tax free deferred compensation program, our life insurance consultant attended the mediation with us to help the mediator understand the case, evaluate the defense’s position, and review the settlement terms. It turns out the representative of the defendant and our consultant had a long time relationship of trust. That certainly helped in achieving a settlement. Even if that had not been the case, our consultant was invaluable in assisting us in getting to a settlement<br /><br />• In a wrongful death case involving an charming 25-year-old eldest daughter of a Filipino family, we had two consultants – one an “all purpose” coordinating consultant on highway design and other issues (he helped coordinate and interpret the work of the those serving as expert trial witnesses), and another on the Filipino culture and the role of the family in that culture. The second expert was very persuasive on emphasizing the expectations of parents in that culture for the support of their children, particularly the eldest, as the parents grow older and less able to care for themselves. This was an important part of our case for economic and non-economic damages. Both experts were outstanding, and we got an excellent result for our clients in the settlement.<br /><br />There are other examples of how consultants and experts can be used at mediation. For instance, we often prepare a mediation video with 20-40 minute mini direct examinations of experts or consultants [even if the consultant is not going to be an expert trial witness] to explain our position or provide information to the defense about technical or medical issues in the case. We use consultants in some cases where there may be several expert trial witnesses eventually, but we use a consultant to address multiple expert issues. We have medical consultants who work with our firm who have broad knowledge and can provide an overview of the case without requiring us to call on several witnesses or treating physicians and incur that expense for the mediation. Sometimes the consultant will use the records and reports of the treating physicians or expert trial witnesses (if they have been obtained) to portray the issues and provide an analysis. Again, we use the protection of the mediation’s confidentiality when these consultants are used. In most cases, I get an agreement from the defense that we can bring this consultant to the mediation for this purpose and that the defense will honor the confidentiality protection. I have never had my opposition decline to accept this offer.<br /><br />To me, using consultants and experts at mediation is a very positive tool in specific cases in which there are medical or technical issues that need to be addressed. In doing so, we need to be efficient so the consultant can provide effective way to assist the mediator and your opposition in understanding your client’s case.Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0tag:blogger.com,1999:blog-1765624279363744561.post-11533121390869264242009-10-26T09:47:00.000-07:002009-10-26T09:51:45.580-07:00Top 10 Reasons Why Cases Do Not Settle at MediationHere are my top ten reasons why cases do not settle at mediation with some brief comments about each. You probably can add more. But give these some thought.<br /><br />No. 10: You are not ready. This is an obvious reason, so not much need be said. It is better to postpone a scheduled mediation if you believe that you are simply not at a readiness level that will maximize your client’s chance for a productive and successful day.<br /><br />No. 9: Your client is not prepared. What have you done to educate your client about the mediation process and its important aspects? Is your client prepared to discuss the economics of settlement? Are his/her expectations reasonable? Is your client willing to listen to the other side and the mediator about the issues? Does your client understand this is a non-binding process in which he/she does not have to testify or even say anything, and that the mediator is not a decision maker? Have you explained how the process works, so that your client understands this is not like being in court? Most importantly, does your client understand the concept of confidentiality? Finally, if your client is going to say anything, have you rehearsed what is to be said and planned for it?<br /><br />No. 8: Your opposition is not prepared or does not understand your case. Sometimes this is difficult to assess. I have on occasion called opposing counsel to determine for myself if he or she understands the case or issues, and also if the claims representative or client representative is well informed on the issues and will be present to participate in the mediation. I want the check writer there. If there are problems in this arena, I call the mediator to see what can be done to insure that the client representative has authority to negotiate in the financial arena into which I believe the case falls.<br /><br />No. 7: The mediator is not prepared or ineffective. Frankly, I have experienced a few situations in which I was sorry that the chosen mediator was selected. This is particularly true when the mediator a) limits his or her participation in caucuses with your client and you (e.g. does not provide constructive guidance on how to posture demands and responses to offers), or simply wants to be a messenger to transmit demands and offers back and forth. There are some occasions in which the mediator has been ineffective and I have had to guide the mediator during the mediation. Believe it or not, in the couple of instances in which this has happened, we have achieved a settlement. Essentially, however, we were negotiating directly with an intermediary to carry the mail back and forth. That is not my idea of how a mediation should be conducted!<br /><br />No. 6: The emotions of the parties or their counsel interfere with the process. We all know that in many cases, the emotions of the parties run high. In those cases, a mediation is likely to fuel them despite the best counsel from a lawyer. First, it is important for you to assess if this will be the situation on your client’s mediation day. Second, if that is the case, then obviously you need to counsel the client to see if emotions can be tempered. You might also discuss potential hot points with opposing counsel and involve the mediator so that tensions can be tempered and the day managed with the clients in control. Most important is to be honest in assessing the circumstances so that you can anticipate any problems of this kind interfering with the process.<br /><br />No. 5: The parties do not understand the economics of the case. This is a common problem in mediation. Clients must understand and be prepared for talk about dollars and cents. What is the realistic potential for damages if liability is found? What are the various scenarios for a jury or court on the damages issues? Given these, what is it going to cost to get there, and what numbers might a party see at the end of the day? The defense must also understand the exposure. I respectfully refer you to the September 2008 Journal of Empirical Legal Studies (Vol. 5, No. 30, pp. 451-491), a joint venture of Cornell Law School and the Society of Empirical Studies, in which there are published results of a quantitative evaluation of “the incidence and magnitude of errors made by attorneys and their clients in unsuccessful settlement negotiations.” The study entitled, “Let’s Not Make A Deal: An Empirical Study of the Decision Making In Unsuccessful Settlement Negotiations,” was done by two faculty members and a graduate student from the Wharton School of Finance, University of Pennsylvania. The study analyzed 2,054 California cases in which the plaintiffs and defendants participated in settlement negotiations unsuccessfully and proceeded to arbitration or trial, and compared the parties’ settlement positions with the award or verdict. The study “reveal[s] a high incidence of decision-making error by both plaintiffs and defendants in failing to reach a negotiated resolution.” I discussed this study in my December column last year.<br /><br />No. 4: The parties lack credibility. The Three C’s of mediation are: Credibility, Confidentiality, and Communication. I work very hard to gain the confidence of my opposition and avoid hostilities. Our clients may disagree, vent, and be angry during the litigation, but counsel must establish a credible basis for dealing with each other. If so, there is a high chance that the mediation day will be successful. If not, then the mediator should know that the parties are having difficulty communicating, and the lawyers are too!<br /><br />No. 3: The parties are not candid with each other and the mediator. Misleading a mediator or an adversary will only lessen the ability of the parties to work together. Advocacy at mediation is different from advocacy in the ordinary process of litigation. I don’t mean to suggest that being dishonest is acceptable in any way at any time. However, the spin doctors don’t do well at mediation. It is important to recognize the issues, and discuss them candidly and honestly with the mediator and even the opposition. Open discussion leads to a fair assessment of the case which leads to resolution.<br /><br />No. 2: Client expectations are too high. This is a corollary to the principle that the parties understand the economics of the case. A plaintiff may have expectations of a recovery which are not justified given the picture regarding liability, causation and damages – and maybe even collection. A defendant may believe that a mediation is a “fire sale” for the plaintiff. On both sides the costs of proceeding must be assessed. Without a clear understanding of the economics of the case, the parties cannot bargain responsibly.<br /><br />No. 1: Counsel is unable to control the client. We have all had experiences in which a client simply will not process the information we provide, as well as our advice and counsel. Each of us all has ways to get around and pierce through the stubborn exterior of a client. But sometimes we are not as successful as we would like. I do not hesitate to have a private conversation with our mediator about the expectations for client behavior. Often I find a mediator can have a great influence on a client by repeating – perhaps in different words – the message about the case that the client seems to resist hearing.Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0tag:blogger.com,1999:blog-1765624279363744561.post-41278213891548417852009-09-04T10:59:00.000-07:002009-09-04T11:02:11.568-07:00Getting Past the Impasse at MediationYou and your client have mediated for a full day. The mediator has worked hard. But there is no deal and the parties are still a ways apart. An impasse has been reached, and the prospects for breaking through look dim. What happens next?<br /><br />There are a number of possibilities and skilled mediators know how to deal with what you would hope is a temporary “blip”’ in the negotiations.<br /><br />First of all, your client should be prepared for this. I normally tell my clients that this is our first day of real negotiations. We would not be going if we were not prepared and interested in settling. But we are just one side. The defendant(s) may or may not have the right attitude about settlement, or may be fighting among themselves as to their respective shares.<br /><br />Second, I have a basic operating principal in mediations. If the parties are talking there is hope, so KEEP TALKING if you are interested in getting the job done and a resolution of your clients’ case.<br /><br />So what are the alternatives if the parties reach the end of the day or it’s apparent during the mediation day that they are stuck and the process has bogged down?<br /><br />No. 1: Use a “mediator’s field of play”: Here the mediator proposes a “demand” and “offer” which each side must accept. That is, the plaintiff must agree to make the proposed “demand” and the defense (if more than one then perhaps a joint offer) agrees to the proposed offer. Once that occurs then the parties negotiate further. This approach is used when the plaintiff is holding back and making “demands” that are too high and the defense is standing on an offer that one might characterize as “way too low.” That is, each side is being unrealistic. The approach I describe forces the parties into an appropriate mediating range or “field of play” that allows them to get back to mediating.<br /><br />No. 2: Adjourn and come back another day: This often happens. Perhaps there is more discussion that needs to take place between lawyer and client, or the parties need more discovery. However, if there is real interest in a settlement among all parties, a second session after some time passes and some additional work is done, often can lead to resolution.<br /><br />No. 3: Separate sessions with the parties: If there are disagreements among several defendants, but overall they have a sense of what collectively might result in a settlement, perhaps a separate settlement session with the defendants will allow them to discuss their respective shares.<br /><br />No. 4: The mediator works the phones: Here the mediator takes the responsibility of continuing negotiations by calling the parties separately and discussing resolution. This can work in the situation where the parties are close but closure does not occur. Maybe the defendant or defendants need to request additional authority, and cannot accomplish this during the mediation day. Or perhaps the mediator wants some time to talk to the parties separately without the time pressures of a work day. The disadvantage is that the mediator loses the face-to-face encounter, and also has the inconvenience of trying to reach counsel, who are often occupied during the business day. This becomes more of a problem when there are time differences. But continuing the mediation process is better than abandoning it. Perhaps the mediator can even bring the parties back to a face-to-face process if he runs out of nickels for the phone call!! (I remember when.)<br /><br />No. 5: A mediator’s proposal: This is the last resort for a mediator to settle a case where the parties are reasonably close but are unable to make the final move to closure. Here the mediator proposes a number and the terms of a settlement. Both sides are advised of such and given the opportunity to accept or not. If the parties accept the mediator’s proposal, then the deal is done. If not, there is no settlement. In my experience, mediators are reluctant to do a mediator’s proposal unless there is a real chance the parties will accept it. These are normally very reasonable proposals which are irresistible in most cases. I cannot remember a case in which a mediator’s proposal was not accepted by the parties, but then this approach is not one that occurs with great frequency. Used properly by a mediator it can be an effective tool for resolution.<br /><br />There are other approaches as a mediation is subject to the creativity of the mediator and the parties. But as long as the parties “keep talking” there is hope for a settlement. After all, as noted in previous columns, history and statistics demonstrate that the parties are likely to do better by settlement than concluding the matter by arbitration or trial.Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0tag:blogger.com,1999:blog-1765624279363744561.post-11620724886291394832009-08-10T10:28:00.000-07:002009-08-10T10:39:07.019-07:00Negotiating and Settling Insurance Bad Faith CasesI’ve been handling bad faith insurance cases for almost my entire career. Initially the majority of cases encompassed the “duty to settle—excess liability cases” wherein the insurer became responsible for the entire amount of a judgment against its insured because the insurer acted imprudently or unreasonable by failing to accept a demand from a plaintiff for the policy limits or less. The basis for this liability was the implied covenant of good faith and fair dealing which exists in all contracts, but which has a special meaning in insurance policies. This covenant of good faith serves as the foundation for the expansion of insurers’ legal responsibility into the realm of tort liability stemming from its “bad-faith” conduct. If the insurer breaches the covenant of good faith by wrongfully handling an insurance claim under the applicable standard, a tort is committed.<br /><br />In the early 70’s, the California Supreme Court applied these concepts to first party insurance relationships, i.e. where the insurer has promised to pay an insured for a covered loss. This type of coverage is found in all types of insurance relationships: commercial and personal property insurance, medical pay insurance, life, health and medical insurance, and other “direct reimbursement” insurance situations. <br /><br />When the insurer’s conduct constitutes a tort, the plaintiff can recover damages for injuries that were proximately caused by that conduct, whether or not the injuries could have been anticipated when the contract was executed. Thus, in addition to contract damages, the insured may be able to recover extra-contractual damages, which are damages beyond those usually permitted for a breach of contract using the tort measure of damages. These include compensatory damages, damages for emotional distress, economic losses, and even attorneys’ fees. Moreover, punitive damages may be awarded in certain instances tort claims where a higher degree of misconduct is proven.<br /> <br />The potential exposure to punitive or exemplary damages is the greatest danger to an insurer defending an extra-contractual claim. For example, courts have allowed the recovery of punitive damages when the insurer's breach is accompanied by an independent tort or where a serious wrong of a tortious nature has been committed and the public interest would be served by the deterrent effect of punitive damages.<br />GENERAL PRINCIPLES<br />Insurance bad faith cases fall primarily into two categories: first-party and third-party cases. First-party cases evolve from coverage in which the insurance company is obligated to indemnify or reimburse its insured directly. Third-party cases involve underlying claims which trigger an insurer’s obligations to protect an insured against lawsuits by others. It involves the basic obligations of the insurer to defend and indemnify the insured, and to settle such cases when a reasonable opportunity to do so is presented. The right to coverage is triggered by strangers to the insurance relationship who bring a suit against the insured. It draws on traditional tort concepts of fault, proximate cause and duty. “In liability insurance, by ensuring personal liability, and agreeing to cover the insured for his own negligence, the insurer agrees to cover the insured for a broader spectrum of risks.” <br /><br />Within the framework of the third-party claim is the “duty to defend” case, which involves claims by an insured against an insurer for breach of the obligation to defend the insured when suit is brought against it. This case may arise even if the insurer has no duty to indemnify under the same coverage since the duty to defend is broader than the duty to indemnify. The former is triggered by the potential for coverage; the latter is triggered by actual coverage.<br /><br />Many types of property and casualty policies contain both first and third-party coverage. For example, an auto policy which protects the insured against the risk of property damage to its vehicle, may also provide for medical expense coverage (called medical payments coverage), and normally contains uninsured and underinsured motorist coverage. The latter allows the insured to bring a claim against its own insurer if the insured is the victim of an accident in which the offending driver’s vehicle has no insurance or the applicable liability insurance limits are insufficient to compensate the insured for the injuries suffered in the accident. Unreasonable conduct in the processing or handling of these claims may expose an insurer to a “bad faith” claim. <br /><br />The focus of a third-party case is on the insurer’s refusal to settle a claim or lawsuit against its insured within the limits of liability of the insurance policy and a judgment in excess of the liability limits results from a trial. As a result, the insured’s personal assets are exposed because of the insurer’s failure to settle within the framework of the liability protection when it was prudent to do so.<br /><br />The classic breakdown of the first-party insurance bad faith case is represented by a three-tiered analytical framework: 1) breach of the insurance contract; 2) the tort of insurance bad faith (or other tort converting the contract action to a tort claim); and 3) the punitive damage claim. Theoretically, this is a mixture of legal theories and remedies.<br /><br />The first tier involves whether a breach of the policy’s terms has occurred (i.e., a breach of contract) and, if so, what policy benefits (i.e., contract damages) are owed. Contract damages are limited to those damages reasonably contemplated by the parties at the time the bargain is struck. Such damages are ordinarily limited to the payments or benefits due under the policy and do not include future contract benefits or damages for emotional distress or punitive damages.<br /><br />The second tier involves looking at the conduct of the insurer in handling the claim or matters entrusted to it; has the tort of insurance bad faith been committed? If so, what extra-contractual compensatory damages (financial injury resulting in economic losses coupled with emotional distress and attorneys’ fees) have resulted from this conduct?<br /><br />The punitive damage claim is not a separate legal claim but a remedy appended to a tort claim. In insurance bad faith law, the right to pursue punitive damages exists only if an underlying tort, such as insurance bad faith, is established. Without the underpinning of the tort claim, no punitive damages are available.<br /><br />The third tier requires examining again the conduct of the company and determining, by the requisite burden of proof, if punitive damages would be awarded under the applicable standard. In California, that requires proof of “malice, fraud or oppression” by “clear and convincing” evidence.<br /><br />Thus, a bad faith claim has these three very separate and distinct components: A breach of contract is not bad faith – there must be an examination of the conduct of the company to determine if the manner of handling the claim was consistent with “good faith” principles. However, proof of bad faith is not enough to impose punitive damages – “something more” is required, which has been expressed as an “evilness” in the corporate scheme of things, or the “collective corporate conduct.”<br /><br />The different standards and burdens applied must be evaluated. If not, they offer the defense an excellent opportunity to “compartmentalize” the case and defeat the plaintiff’s effort to obtain relief for the wrongs done in an amount sufficient to accomplish the goal of giving notice that such conduct should be stopped.<br />LOOKING AT LIABILITY FOR BAD FAITH<br />Assuming that there is contractual liability, the next question is whether the compensatory damages are limited to the contract standard as contemplated at the time of the agreement or the tort standard based on proximate cause and foreseeability.<br /><br />While not an exhaustive list, the following are indicia of bad faith conduct under various standards:<br />• Failure to investigate a claim thoroughly;<br /><br />• Failure to evaluate a claim objectively;<br /><br />• Unduly restrictive interpretation of policy language or claims forms;<br /><br />• Unjustified delay in payment of a claim;<br /><br />• Dilatory handling of claims;<br /><br />• Deceptive practices to avoid payment of a claim;<br /><br />• Abusive or coercive practices to compel compromise of a claim;<br /><br />• Unreasonable conduct during litigation;<br /><br />• Arbitrary and unreasonable demands for proof of loss;<br /><br />• Absence of a reasonable basis for delay in payment or for the denial of a claim;<br /><br />• Improper refusal to defend an insured;<br /><br />• Improper handling of defense of insured, resulting in loss of goodwill; and<br /><br />• Deliberate misinterpretation of records or the policy to defeat coverage.<br /><br />The duty to investigate is an important duty of an insurer. Hence, it can be an important part of a bad faith case. The erroneous withholding of policy benefits based on the insurer’s failure to investigate a claim may constitute a breach of the implied covenant of good faith and fair dealing. In order to protect the insured’s peace of mind and security, “an insurer cannot reasonably and in good faith deny payments to its insured without thoroughly investigating the foundation for its denial.” An insurer must “fully inquire into possible bases that might support the insured’s claim.” The investigation must be prompt, thorough, reasonable, and conducted in good faith. That is to say, the insurer must consider facts favorable to the insured’s position as well as those that favor the insurer. This is one aspect of the insurer’s duty to give equal consideration to both the insurer’s and the insured’s interests.<br /><br />California has codified the duty to investigate in the Unfair Practices Statute (“UPA”) which requires the insurer “to adopt and implement reasonable standards for the prompt investigation and processing of claims arising under insurance policies.” Even though no private right of action may exist under these statutes, the application of the duty to investigate remains important. The UPA confirms the industry standards. Alternatively, other standards may be adopted by the company as fair standards for processing a claim. A violation of the statutory, industry, or self-imposed standards provides support for a bad faith claim. They can serve as standards for determining the bad faith conduct of the insurer.<br /> The Insurer’s “Good Faith Dispute” Defense<br />Recent cases have allowed an insurer to defend against charges of bad faith by raising the “good faith dispute” or “genuine issue” defense. That is, the insurer claims that because there is a genuine issue of fact or law regarding its liability for the claim, it is insulated from any potential bad faith liability. This is a misleading statement and may very well not be a sound argument. The “genuine issue” argument must be carefully analyzed.<br /><br />The “genuine issue” doctrine arose as a defense to a claim of bad faith. It was created by the Ninth Circuit Court of Appeals, allowing district courts to conclude as a matter of law that an insurer’s denial of a claim is not unreasonable, so long as there is a “genuine issue as to the insurer’s liability.” Up until the January 2001 decision in Guebara v. Allstate Insurance Co., the Ninth Circuit had always interpreted the “genuine issue” to mean an uncertainty as to the applicable law. California courts adopting and applying the “genuine issue” doctrine applied it to coverage disputes arising from questions of law, i.e., disputes over policy interpretation or areas of unsettled and uncertain law.<br /><br />However, more recently, in Wilson v. 21st Century Ins. Co., the California Supreme Court reversed the trial court’s granting of summary judgment in a case in which plaintiff/insured sought the $100,000 policy limits in underinsured motorist benefits as a result of a motor vehicle accident with an automobile driven by a drunk driver. 21st Century based its motion on the “genuine dispute” as to the value of the claim. The California Supreme Court rejected their position, observing that: <br />The genuine dispute rule does not relieve an insurer from its obligation to thoroughly and fairly investigate, process and evaluate the insured's claim. … “The genuine issue rule in the context of bad faith claims allows a [trial] court to grant summary judgment when it is undisputed or indisputable that the basis for the insurer's denial of benefits was reasonable-for example, where even under the plaintiff's version of the facts there is a genuine issue as to the insurer's liability under California law. [Citation] ... On the other hand, an insurer is not entitled to judgment as a matter of law where, viewing the facts in the light most favorable to the plaintiff, a jury could conclude that the insurer acted unreasonably.” [Citation] Thus, an insurer is entitled to summary judgment based on a genuine dispute over coverage or the value of the insured's claim only where the summary judgment record demonstrates the absence of triable issues [Citation] as to whether the disputed position upon which the insurer denied the claim was reached reasonably and in good faith.<br />To overcome the “genuine issue” doctrine, it is critically important to disabuse trial courts of any misconceptions about the extent of the doctrine in the first instance. In fact, the “genuine issue” rule is not a “rule” at all. It is a principle which has a limited and defined application. It is to be applied on a “case-by-case basis” and can only be applied if the underlying facts creating the so-called “genuine issue” are undisputed. Thus, if any of the underlying facts are in dispute, as a matter of law, the “genuine issue” defense cannot be applied. Even then, the principle only “may” apply.<br /><br />Insurance companies have increasingly relied on what they perceive as an emerging “defense” to their denials or wrongful handling of claims from their insureds: the “good faith dispute.” Initially, this doctrine arose in the context of a genuine coverage dispute, in which the Ninth Circuit advanced the proposition that a “genuine dispute” as to coverage suggests that an insurer acted reasonably. However, the doctrine is greatly overstated by insurance companies, as confirmed by Wilson. Indeed, prior to Wilson, there was a notion in at least one case that the principle was being relied on too heavily, and being misapplied. At least one case has held that even reasonable conduct can expose a carrier to bad faith in certain circumstances. <br /> The cases concede that this doctrine cannot be applied if:<br />• The insurer is guilty of misrepresentation in handling the claim;<br />• The insurer’s employees lie during deposition or discovery or to the insured;<br />• The insurer dishonestly selected its experts;<br />• The insurer’s experts are unreasonable; or<br />• The insurer fails to conduct a reasonable investigation.<br /><br />These are important concepts to understand when negotiating an insurance bad faith case in which the “genuine issue” doctrine is being relied on by the carrier. Unless it is abundantly clear that it applies, it is important to strenuously argue against its imposition. Certainly Wilson helps in taking that approach. <br />CAN YOU CONVERT THE CONTRACT CLAIM TO A TORT CLAIM?<br />It is obvious from the above that either using traditional tort principles or those requisites for the tort of insurance bad faith, it is critical to the recovery of extra-contractual damages to convert the contract claim to a tort. This requires going outside the four corners of the contract and examining carefully the conduct of the insurer in administering and managing the claim.<br /> Requirement of Financial Loss<br />Past cases have discussed the question of whether the claim for insurance bad faith is a personal injury or economic claim (i.e., property claim). Decisions have generally described it as the latter. As a result, financial injury must occur before there can be an award for emotional distress. Such a requirement is said to reduce the danger of frivolous or fictitious claims. <br /> Recovery of Damages for Emotional Distress<br />As a general proposition, the requirement of financial injury provides verification of an accompanying claim for emotional distress. As one California Court of Appeal stated: <br />The principal reason for limiting recovery of damages for mental distress is that to permit recovery of such damages would open the door to fictitious claims, to recovery for mere bad manners, and to litigation in the field of trivialities.... Obviously, where, as here, the claim is actionable and has resulted in substantial damages apart from those due to mental distress, the danger of fictitious claims is reduced, and we are not here concerned with mere bad manners or trivialities but tortious conduct resulting in substantial invasions of clearly protected interests.<br /> <br />In order to recover for emotional distress in a case involving insurance bad-faith, it is not necessary that it be severe.<br /><br />Similarly, in order to recover for emotional distress, it is not necessary to prove that the emotional distress is proximately caused by a financial loss, only that both emotional distress and financial distress were caused. As one court noted:<br />[P]laintiff in a bad faith case must prove some economic loss as a means of validating the seriousness of his or her emotional distress. Once economic loss is shown, however, the plaintiff is entitled to recover for all emotional distress proximately caused by the insurer’s bad faith without proving any causal link between the emotional distress and the financial loss. <br /><br /> Recovery of Attorneys’ Fees<br />In a bad faith action, the insured may recover attorneys’ fees that incurred in the insured’s action to recover benefits under the insurance policy. However, fees that are the result of the insured’s efforts to collect extra-contractual damages (i.e., emotional distress damages) are not recoverable. Attorneys’ fees are only recoverable under the tort-based cause of action, not the contract-based cause of action. The rationale for allowing recovery of attorneys’ fees for the tortuous refusal to pay benefits is found in Brandt v. Superior Court of San Diego: “[A]ttorney’s fees...are recoverable as damages resulting form a tort in the same way that medical fees would be part of the damages in a personal injury action.” These include attorneys’ fees for defending a bad faith award on appeal.<br /> THE SEVEN POINT TEST FOR EVALUATING A “BAD FAITH” CASE<br />Here is a quick checklist for looking at the potential for bad faith and punitive damages in an insurance tort case:<br /> 1. What is the personal plight of the insured/claimant plaintiff? In short, how sad is the story? Will the story justify “ringing the bell” in the minds of the jury?<br /> 2. What is the amount of the contract claim? Is the amount sufficient to justify a substantial compensatory award? Is the fact that plaintiff has been deprived of these sums sufficient justification for a significant emotional distress award?<br /> 3. What is the amount of compensatory damages that is likely to be awarded for economic loss, emotional distress and attorneys’ fees? The greater the amount of compensatory damages, the larger the potential for punitive damages. This is particularly true in a “cap” state such as Indiana in which three times the compensatory award may pose a much greater exposure to punitive damages than the monetary cap of only $50,000.<br /> 4. How long has the plaintiff been a policyholder (in a suit by an insured)? A jury will expect the insurer to “give slack” to an insured who has been a policyholder for a substantial period of time. Reluctance by the insurer to give the benefit of the doubt to long-standing insureds who have continued to fuel the company coffers with premium payments may create a jury climate for a punitive claim.<br /> 5. What is the length of time from claim to compensation? The longer the period from the time of the initial injury to trial (or payment of what was rightly owed), the higher the punitive potential. A lengthy period of denial only bolsters the perception that insurance company claims personnel are taught to hold on to the insurer’s money for as long as possible in order to maximize profits.<br /> 6. What is the likely credibility of the company witnesses? The story of the claims handling is influenced by the believability of the insurance company’s witnesses, who may be subject to impeachment and/or may be shown to have taken an adversarial posture against the insured, which is inconsistent with the principles of good faith claims handling.<br /> 7. What is the overall perception of the insurance company? That is, what picture will the jury have of the insurer? Promises of “Good Hands,” “Good Neighbor” and “Piece of the Rock” give the jury the impression that the insurer can be trusted, but these advertising slogans may be perceived as just marketing tools for attracting customers, with no intention of meeting these standards of customer concern, care or treatment. Also, if the insurer is perceived as being very wealthy (even if the jury will not hear evidence of financial wealth until a later aspect of the trial), this perception can affect the jury’s determination.<br /> STRATEGY FOR NEGOTIATIONS<br />The environment for seeking redress for insurance company wrongs is not always “plaintiff friendly.” While juries may be sympathetic, the barriers posed by evidentiary rules, punitive “caps,” and the views of judges and appellate courts to class actions or large punitive “windfalls” must be evaluated before committing your law firm to these suits. They require careful planning and consideration before filing.<br /> <br />Tort reform and the courts’ approaches to punitive damages claims have made some carriers feel more secure that bad faith and punitive damages are not a threat as they were in the 1970’s and 1980’s when insurance bad faith cases matured.<br /> <br />Now, there are still cases where punitive damages are warranted, but the commitment of time, money and the client’s emotional and physical resources is large. For example, Ray Bourhis, a well known insurance bad faith lawyer in San Francisco, has written a telling story of one of his more recent insurance bad faith cases. Anyone doing insurance bad faith work is well advised to read this book. <br /> <br />Insurance bad faith cases offer an early opportunity for resolution for several reasons. First of all, they are expensive to prepare and try. Capturing the case early, evaluating the damages, and looking at the down the line costs should motivate both sides to review the case to see if mediation at an early stage is prudent. Second, insurance bad faith cases present a unique opportunity for an early evaluation. If there are coverage issues, they can be evaluated by reviewing the policy provisions and the applicable law. Because there is already a “paper trail” called a “claims file,” there is an excellent source of information for preparing a chronology of claims handling and learning what was done and why. Once the pertinent files are obtained, you should have considerable information about the claims handling, and the reasoning, or lack of such, behind it.<br /> <br />The pertinent insurance company files can be obtained and reviewed early in the case. This may include underwriting and claims files as well as industry and company manuals as a means for evaluating how the claim was handled – that is, what was done and why. The client and client representatives, such as brokers should be interviewed and files obtained for review. On the defense side, the company personnel should be interviewed to determine the basis for underwriting and claims decisions.<br /> <br />In some cases the parties might agree on limited early discovery with a view towards mediating once they have completed this preliminary discovery or informal exchange of information.<br /> <br />A well thought out Litigation Management Plan by both sides should lead the parties to assess when a “plateau” is reached, i.e., when the parties are ready to negotiate.<br /> <br />The point is that with some early effort, the parties to an insurance bad faith case should be able to explore a resolution of the case before they begin the process of protracted litigation. From all perspectives, this is just common sense since so much is already available by the time suit is filed.<br /> <br />One strategy I have used successfully in insurance bad faith cases is to file suit, then send the claims handler or key insurance operative a copy of the file endorsed complaint, with a brief overview of the allegations and an invitation to mediate. Sometimes I suggest some mediators, or I invite them to provide a list of acceptable mediators. In other cases, I have offered to go to whomever they chose if they pay the costs of mediation (with the mediator not knowing that only one side is paying). Any of these open the door to discussion, and in almost all cases I at least get a reply that there is interest, and we go from there to see if an agreement to mediate can be reached. On very few occasions is my invitation ignored.Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0tag:blogger.com,1999:blog-1765624279363744561.post-66676467268794606352009-05-18T11:23:00.000-07:002009-05-18T11:26:07.145-07:00Five Factors that Suggest a Case is Ripe for Mediation<p class="MsoNormal" style="text-indent: 0.5in;"><span style="font-family:Georgia;"><br /></span></p><p class="MsoNormal" style="text-indent: 0.5in;"><span style="font-family:Georgia;">Anyone who has been involved in the dispute-resolution mechanism knows it can be a laborious and often mysterious process.<span style=""> </span>Somewhat over simplified, here is a good way to remove some of the labor and mystery, and describe how mediation fits into the system:<span style=""> </span>Mediation allows the parties involved in the dispute to sidestep the litigation process, while also getting results.<span style=""> </span>Because of the mediator’s neutrality, the settlement resolution is more likely to be perceived as just.<span style=""> </span>It is a voluntary, non-binding forum in which the parties agree to conduct negotiations using a neutral intermediary who guides the parties through the legal process.<span style=""> </span>The mediator has no decision-making authority.<span style=""> </span>Rather, it is the mediator’s duty to work with the parties to agree on the terms for conflict resolution.<span style=""> </span>Only if they want to do the parties settle.<o:p></o:p></span></p> <p class="MsoNormal" style="text-indent: 0.5in;"><span style="font-family:Georgia;">So what types of cases are likely to settle at mediation?<span style=""> </span>Here are five factors that, if present in the case, suggest it is one which <u>should</u> be mediated:<span style=""> </span><o:p></o:p></span></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in;"><!--[if !supportLists]--><span style="font-family:Symbol;"><span style="">·<span style=";font-family:";font-size:7;" > </span></span></span><!--[endif]--><b style=""><u><span style="font-family:Georgia;">The parties recognize they have more to lose than if they don’t settle</span></u></b><span style="font-family:Georgia;">.<span style=""> </span>There is high risk if they do not settle.<span style=""> </span>This means not only must there be a downside risk, but also the parties and their lawyers must recognize and understand that risk.<span style=""> </span>If a party and/or counsel have their head in the sand or are refusing to acknowledge the loss possibility or probability, then this leads to an unrealistic evaluation of the case and a failure to appreciate the benefits of a negotiated result.<span style=""> </span>It also leads to unrealistic demands or offers and responses to such.<span style=""> </span>Lastly, it means a mediator is not talking or listening to reasonable minds.<span style=""> </span>This state of affairs costs the parties in many respects, including the time and money for a trial that may very well fail to result in a “win” for anyone.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in;"><!--[if !supportLists]--><span style="font-family:Symbol;"><span style="">·<span style=";font-family:";font-size:7;" > </span></span></span><!--[endif]--><b style=""><u><span style="font-family:Georgia;">There has been cooperation among the parties and their counsel during the litigation process</span></u></b><span style="font-family:Georgia;">.<span style=""> </span>This is key.<span style=""> </span>No doubt a case has a greater potential for settlement when the parties are “firm but fair” with one another.<span style=""> </span>They cooperate without compromising their clients’ rights or position. They exchange what they know is discoverable and they diplomatically but firmly protect what is not.<span style=""> </span>They prepare their client for participation in the litigation process.<span style=""> </span>For example, I try not to intervene at my client’s deposition.<span style=""> </span>He or she is prepared to tell the story, and tell it truthfully.<span style=""> </span>I don’t need to make inappropriate speaking objections or interfere with my opponent’s questioning unless counsel is violating the rules, being rude, harassing my client, or asking questions about irrelevant or privileged matters. Then, rather than arguing on the record and creating useless transcripts, I state my position and deal with this bad behavior appropriately as the rules permit.<span style=""> </span>But, if we are conducting the case within and in accordance with the rules, the prospective of a cooperative discussion about resolution is highly likely.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in;"><!--[if !supportLists]--><span style="font-family:Symbol;"><span style="">·<span style=";font-family:";font-size:7;" > </span></span></span><!--[endif]--><b style=""><u><span style="font-family:Georgia;">The parties have engaged in sufficient discovery and an exchange of information so that you know the facts of the case</span></u></b><span style="font-family:Georgia;">.<span style=""> </span>You have reached a plateau in the case; each side can look towards the door of trial court and see how the case is likely to play out.<span style=""> </span>Experienced trial lawyers can do this. They “hear” the evidence, they play out the examination of witnesses in their minds, and they anticipate the argument of their opponent.<span style=""> </span>They know how these arguments will sound and how a jury, court, or arbitrator might respond to them.<span style=""> </span>Perhaps the parties have conducted focus groups and obtained some insight into how a jury might decide.<span style=""> </span>It is the ability to anticipate the “end result” that allows a trial lawyer to properly advise his or her client as to the alternatives of resolution by trial.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in;"><!--[if !supportLists]--><span style="font-family:Symbol;"><span style="">·<span style=";font-family:";font-size:7;" > </span></span></span><!--[endif]--><b style=""><u><span style="font-family:Georgia;">The parties have non-lawsuit reasons to settle</span></u></b><span style="font-family:Georgia;">.<span style=""> </span>There may be non-lawsuit related reasons to settle.<span style=""> </span>The existence of the lawsuit or a “bad” result may trigger losses in business relationships or a negative impact on a business marketing plan.<span style=""> </span>The parties may also have an ongoing business relationship which would be costly to terminate.<span style=""> </span>There are lots of business and personal reasons to settle, and if these are present they will motivate the parties to seek a negotiated result.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in;"><!--[if !supportLists]--><span style="font-family:Symbol;"><span style="">·<span style=";font-family:";font-size:7;" > </span></span></span><!--[endif]--><b style=""><u><span style="font-family:Georgia;">While the liability, damages or collection issues remain, there is no clear barrier to recovery and payment of any judgment by the plaintiff</span></u></b><span style="font-family:Georgia;">.<span style=""> </span>A lawsuit is a three legged stool:<span style=""> </span>liability, damages and collection.<span style=""> </span>All three have to be present in order for the case to have value from the plaintiff’s perspective.<span style=""> </span>If any of these three legs are missing, the plaintiff has problems and needs to assess what course is the best way to move forward.<span style=""> </span>Indeed, a modest settlement may be in order in such a case.<span style=""> </span>But if there is no clear barrier to the plaintiff and the stool has some strength in all three legs, then the parties should be talking seriously about resolving the lawsuit.<span style=""> </span>There may be a disagreement over the numbers, but that is why mediation is attractive at a timely point in the litigation process – to save the time and expense of trial, and eliminate the risk of a disappointing result.<o:p></o:p></span></p>Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0tag:blogger.com,1999:blog-1765624279363744561.post-30887471602148253622009-01-16T14:15:00.001-08:002009-01-16T14:29:29.204-08:00Opening Statement at Mediation<p class="MsoNormal" style="text-indent: 0.5in;"><span style="font-family: Georgia;"><br />One question that generally comes up when preparing for a mediation is whether counsel should give an opening statement in a general session before the actual negotiating begins.<span style=""> </span>A subquestion is if an opening statement is advisable, what type of presentation should be given? What should be the purpose, content and tone?<br /><o:p><br /></o:p></span><u><span style="font-family: Georgia;">Should An Opening Statement be Given:<span style=""> </span>Is There a Purpose?</span></u></p> <p class="MsoNormal" style="text-indent: 0.5in;"><u><span style="font-family: Georgia;"><o:p></o:p></span></u><br /><span style="font-family: Georgia;">In my view, an opening statement at mediation should not be given if it will create hostility or divisiveness. <span style=""> </span>Sometimes a client will want a preliminary statement to assuage that client’s own anger and hostility towards the other side.<span style=""> </span>That is not a valid purpose because it will not contribute to the mediation process.<span style=""> </span>Anything that escalates the tensions between the parties or heightens the temperature in the room is not a desirable tool for mediation.<span style=""> </span>In short, an opening statement should not be adversarial, but should be devoted to demonstrating an attitude of wanting to reach a resolution of the dispute at hand.<o:p> </o:p><br /><br />Otherwise, whether an opening statement is given depends on its purpose.<span style=""> </span>That is, it must have a purpose first of all, and that purpose must contribute to the mediation process.<span style=""> </span>The best reason for an opening statement is to add information to the process or explain the position of the party delivering it if the information is not already available, or there needs to be clarification of that party’s position. <span style=""> </span>Despite a comprehensive written presentation, there may still be issues or positions that need clarification.<span style=""> </span>If so, an opening statement should be used to provide additional information about a party’s case.<br /><br />One of the occasions where I find an opening useful is to clarify damages claims. <span style=""> </span>There may be questions about the relationship of injuries to an accident, or about special damages, past and future. <span style=""> </span>There may be medical issues; questions about future medical care, rehabilitation efforts, and income earning capacity once the injuries have stabilized.<span style=""> </span>These questions may have come up in a pre-mediation conference, so the parties may want to address those issues with additional information that has developed.<br /><br />However, an opening statement is not a time to rehash what has been spelled out in a mediation statement or just review what the parties already have had an opportunity to absorb.<span style=""> </span>The opening statement is appropriate if it will help focus the parties on the issues to be addressed at the mediation, and provide additional information useful to moving the parties closer to a bargained result.<o:p><br /> </o:p></span><br /><u><span style="font-family: Georgia;">What Should be the Tone?</span></u></p><p class="MsoNormal" style="text-indent: 0.5in;"><u><span style="font-family: Georgia;"><o:p></o:p></span></u><br /><b style=""><u><span style="font-family: Georgia;"><o:p><span style="text-decoration: none;"></span></o:p></span></u></b><span style="font-family: Georgia;">As noted, hostility and an adversarial tone do not contribute to the process.<span style=""> </span>An educational and informational tone is the right one to choose for this type of presentation.<span style=""> </span>Successful “across the table” negotiators do not achieve desired results with this approach in any format.<span style=""> </span>As a voluntary process, mediation will not be successful if the parties display their anger and bitterness (despite its presence) to any joint sessions. <span style=""> </span>Venting can be done privately, but not when the parties caucus.<br /><br />Anything less than a high level diplomatic approach will only lessen the chance of settlement. This is not to say that the parties should appear to be begging for a result, but a high level of professionalism and willingness to explore settlement options should be the attitude of all involved once any joint session is over.<span style=""> </span>The spirit should be: Let’s try to get it done!<o:p><br /> </o:p><br />An <i style="">appropriate</i> opening statement can be a valuable tool for working to a positive end result.<o:p><br /></o:p></span></p><p class="MsoNormal" style="text-indent: 0.5in;"><span style="font-family: Georgia;"><o:p></o:p></span><br /><u><span style="font-family: Georgia;">What Should It Contain?</span></u></p><p class="MsoNormal" style="text-indent: 0.5in;"><u><span style="font-family: Georgia;"><o:p></o:p></span></u><span style="font-family: Georgia;"><br />The answer to this question is obvious: information that adds to the other side’s basis of information, clarifies issues or facts in the case, or makes the position of a party clearer to the mediator and other parties.<o:p><br /> </o:p><br />I like to use a supplement, either an outline or a PowerPoint presentation.<span style=""> </span>However, these tools should be used simply to give the presentation some structure, not to overwhelm the parties with more paper or numerous slides with crammed detail.<span style=""> </span>The opening statement, as I envision it, is a summary of information so that the issues and facts have a clearer focus, and the mediator and the parties can begin negotiating around their dispute.<o:p><br /> </o:p><br />One further point: An opening statement is often a good time to concede facts or issues.<span style=""> </span>For example, I have had mediations in which the defendants said in their opening that they were not going to focus on liability because they had worked towards an apportionment among themselves. <span style=""> </span>This allowed my client to focus on evaluating the case for settlement purposes and discussing damages.<span style=""> </span>Obviously that was good news, and it also made the mediation day a productive discussion of some serious and real damages questions.<o:p><br /> </o:p></span><br /><u><span style="font-family: Georgia;">Be Creative; You May Involve Others!<o:p></o:p></span></u><br /><b style=""><u><span style="font-family: Georgia;"><o:p><span style="text-decoration: none;"></span></o:p></span></u></b><br /><span style="font-family: Georgia;">You can be creative with an opening statement at mediation.<span style=""> </span>You do not have the constraints that you have at trial.<span style=""> </span>For one, you can discuss the facts without worrying about objections, admissibility or argument, although you certainly do not want to fall into an argumentative statement that will violate the appropriate “tone” that I think should be used.<span style=""> </span>Second, you can involve others.<span style=""> </span>Frequently I take an “all purpose” expert or consultant with me who can present an overview of the technical aspects of the case.<span style=""> </span>For example, our medical consultants, retired physicians who assist in reviewing the medical aspects of our cases, sometimes attend to explain injuries, comment on causation and answer questions, while recognizing that they are not our expert trial witnesses.<span style=""> </span>I also use consultants whom I regard as good “translators” of technical arenas, and who can give an overview of aspects of the case.<span style=""> </span>They are highly credible, and what they present is done within the confidentiality of a mediation and with the understanding that they are not going to testify at trial, but are serving as consultants.<span style=""> </span>This expert overview can be provided at a lower expense than if you asked two or three experts to attend or provide video statements for mediation purposes only.<o:p><br /> </o:p></span><br /><u><span style="font-family: Georgia;">Clearing the Opening with the Mediator<o:p></o:p></span></u><br /><span style="font-family: Georgia;"><o:p> </o:p><br />On mediation day it is the mediator’s show.<span style=""> </span>So, I want to clear the agenda with the mediator before I plan on making any opening statement.<span style=""> </span>The mediator may not want it.<span style=""> </span>He or she may want me to forego an opening initially and save it for later in the day if it is believed some comments in a joint session will help the parties in their negotiations.<span style=""> </span><o:p><br /> </o:p><br />If an opening is invited, I usually give the mediator some idea of my approach to make sure it blends in with the mediator’s agenda and approach to the settlement discussions.<span style=""> </span>No surprises - at least not for the mediator!<o:p><br /> </o:p></span><br /><u><span style="font-family: Georgia;">A Final Comment<o:p></o:p></span></u><span style="font-family: Georgia;"><o:p> </o:p></span></p> <p class="MsoNormal" style=""><span style="font-family: Georgia;">You should let your client know about the difference between the opening statement at the mediation and at trial.<span style=""> </span>The client may expect a gang-busters trial lawyer’s presentation.<span style=""> </span>Perhaps if an opening statement is to be given, you should ask the client what his or her expectations are, and then inform them of the purpose and reasons for your presentation and generally how and what your are going to say. <span style=""> </span>That way the client’s expectations are appropriate for the day, or at least for the initial joint session.</span><span style="font-size: 10pt; font-family: Georgia;"><o:p></o:p></span></p> <p class="MsoNormal" style="text-indent: 0.5in; line-height: 200%;"><span style="font-family:Georgia;"></span><span style="line-height: 200%;font-family:Georgia;font-size:10;" ><o:p></o:p></span></p>Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0tag:blogger.com,1999:blog-1765624279363744561.post-15155526650720401002008-12-17T11:59:00.000-08:002008-12-17T13:09:45.724-08:00Empirical Research Confirms that Negotiated Results are Superior to Going to Trial<p class="MsoNormal" style="">Recently, there was a report published of empirical research confirming that settlement is preferred to trial because the potential result is statistically found to be a better economic result.<span style=""> </span>The newly released study reviews the results on a large number of cases that did not settle after mediation and eventually went to trial and addresses how those cases fared in comparison to the last settlement offer or demand.<span style=""> </span><o:p></o:p></p> <p class="MsoNormal" style="">The September 2008 Journal of Empirical Legal Studies (Vol. 5, No. 30, pp. 451-491), a joint venture of Cornell Law School and the Society of Empirical Studies, has published the results of a quantitative evaluation of “the incidence and magnitude of errors made by attorneys and their clients in unsuccessful settlement negotiations.”<span style=""> </span>The study entitled, “Let’s Not Make a Deal: An Empirical Study of the Decision Making In Unsuccessful Settlement Negotiations,” was done by two faculty members and a graduate student from the Wharton School of Finance, <st1:place st="on"><st1:placetype st="on">University</st1:PlaceType> of <st1:placename st="on">Pennsylvania</st1:PlaceName></st1:place>.<span style=""> </span>The study analyzed 2,054 <st1:state st="on"><st1:place st="on">California</st1:place></st1:State> cases in which the plaintiffs and defendants participated in settlement negotiations unsuccessfully and proceeded to arbitration or trial and compared the parties’ settlement positions with the award or verdict.<span style=""> </span>As the study states, it “reveal[ed] a high incidence of decision-making error by both plaintiffs and defendants in failing to reach a negotiated resolution.<o:p> </o:p></p> <p class="MsoNormal" style="">The study actually builds, as is noted below, on prior research in four studies so that the cases analyzed totaled 9,000 in the past 44 years.<span style=""> </span>It compared the results in selected cases in which the parties exchanged settlement offers, rejected the offers of the other side, and proceeded to trial or arbitration.<span style=""> </span>While the large group of cases were jury trials, court trials and arbitrations were included.<span style=""> </span>The study was based on the report of results from California Jury Research (formerly California Jury Verdicts Weekly), which the authors found reliable.<o:p></o:p></p> <p class="MsoNormal" style="">As it states: “The parties’ settlement positions. . . [were] compared with the ultimate award or verdict to determine whether the parties’ probability judgments about trial outcomes were economically efficacious, that is, did the parties commit a decision error by rejecting a settlement alternative that would have been the same as or better than the ultimate award.”<span style=""> </span><o:p> </o:p></p> <p class="MsoNormal" style="">Prior studies were reviewed and summarized as follows:<o:p></o:p></p> <ul><li>Priest/Klien (1984-1985):<span style=""> </span>Trials occur in “close cases,” and plaintiffs and defendants equally make mistakes; plaintiffs win about 50% of the cases that proceed to trial; this is referred to as the “fifty percent implication”;<o:p></o:p></li></ul> <ul><li><o:p> </o:p>Gross/Syverud (1985-1986):<span style=""> </span>529 cases from June 1985 to June 1986 were studied; they questioned the validity of this type of research because the context of the negotiations and relationship of the parties and counsel affected the behavior of the parties;<o:p></o:p></li></ul> <ul><li><o:p> </o:p>Gross/Syverud (1990-1991):<span style=""> </span>Here, 359 cases were studied, and the results conflicted with the 50% distribution of “mistakes”; they found plaintiffs were more likely than defendants to reject a settlement opportunity that was more favorable than the result;<o:p></o:p></li></ul> <ul><li><o:p> </o:p>Rachlinski (1996):<span style=""> </span>He compared final settlement offers with jury awards in 656 cases.<span style=""> </span>His findings were that plaintiff had a higher percentage of error (56.1% of the cases), but the average cost was $27,687, while defendants had a lower error rate (23%) but a greater risk of a bad result, with an average cost of $354,000.<span style=""> </span>He concluded that plaintiffs were risk averse while defendants were risk seeking; that is, the risk of trial in these scenarios benefitted plaintiffs but it cost the defendants significantly.<o:p></o:p></li></ul> <p class="MsoNormal" style=""><o:p> </o:p>Here is what the researchers found in the most recent study:<o:p></o:p></p> <ul><li><o:p> </o:p>Comparing the actual trial results to rejected settlement offers, the study found that 61% of the plaintiffs obtained a result that was not economically better than the settlement offer, i.e., it was either the same or worse than what was offered;<o:p></o:p></li></ul> <ul><li><o:p> </o:p>In contrast, 24% of the defendants obtained a result that was not economically better;<o:p></o:p></li></ul> <ul><li><o:p> </o:p>However, although the plaintiffs experienced more results that were not as economically good as the last offer, the risk of defendants rejecting the last settlement demand was higher.<o:p></o:p></li></ul> <ul><li><o:p> </o:p>When the plaintiffs rejected an offer and went to trial, and did better, <i style="">it was not that much better</i> – an average of <b style="">$43,100</b> over the last offer;<o:p></o:p></li></ul> <ul><li><o:p> </o:p>However, when the defendants rejected the last demand and went to trial, and did worse, <i style="">it was much worse</i> – an average of <b style="">$1,140,000</b> worse!<o:p></o:p><o:p></o:p></li></ul> <p class="MsoNormal" style="">The study also found that the cost of “decision errors” in failing to accept the opportunities to settle increased between 1964 and 2004.<span style=""> </span>In 1964, plaintiffs obtained worse results at trial than were available through settlement in 54% of the cases, while in 2004 it rose to 64% of the cases.<span style=""> </span>During that same period, the range for defendants went from 19% in 1964 to 26% in 1984 and then declining to 20% in 2004.<span style=""> </span>And, the cases in which neither party committed a decision error decreased from 27% in 1964 to 14% in 2004.<span style=""> </span>Adjusted for inflation, the researchers found that a plaintiff’s decision errors increased 3 times, but a defendant’s errors were much more costly – increasing 14 fold.<span style=""> </span><o:p></o:p></p> <p class="MsoNormal" style="">Another interesting aspect of the study is the effect that statutory offers and cost shifting procedures had on the eventual results in cases going to a final decision making process. In <st1:state st="on"><st1:place st="on">California</st1:place></st1:State>, under Code of Civil Procedure section 998, either party may make an offer of settlement which, if rejected by the other, can shift certain costs, including those of experts to the other if the result is less favorable than the statutory offer of judgment. The researchers found that instead of encouraging parties to consider settlement because of the cost shifting consequences of statutory offers, these offers had an opposite effect – instead, the parties were more likely to take aggressive settlement positions, resulting in “financially adverse outcomes,” than the other parties in the study. The “decision errors” for plaintiffs who rejected these statutory offers was 83% compared to the 61% plaintiffs who were not subject to such.<span style=""> </span>Defendants made “decision errors” in 46% of the cases when facing a statutory offer, whereas the rate was 22% who were not faced with such.<o:p></o:p></p> <p class="MsoNormal" style="">Another finding that may not be surprising is that in cases in which litigants were represented by attorneys who had mediation training and experience, the parties experienced lower rates of “decision error.”<span style=""> </span>Indeed, plaintiffs in these cases had a “decision error” of 21%.<span style=""> </span>The authors suggested more research in this area.<o:p></o:p></p> <p class="MsoNormal" style="">It is quite apparent that the most recent study has dispelled the notion that the “fifty percent implication” rules applies.<span style=""> </span>It has established a new dimension of risks for both plaintiffs and defendants in rejecting opportunities to settle.<span style=""> </span>Plaintiffs risk the further costs of litigation and a result that is not that much better, which likely does not justify the investment of time and money in taking a case “to the mat.” Defendants, on the other hand, have a huge downside by risking large verdicts against them if they do not appreciate the opportunity they have by a negotiated closure.<o:p></o:p></p> <p class="MsoNormal" style="">The 40 page review of the study’s results is worth careful reading. It may also be important in reviewing the advantages of settlement versus trial with our clients.<o:p></o:p></p> <p class="MsoNormal" style=""><o:p></o:p></p>Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0tag:blogger.com,1999:blog-1765624279363744561.post-81368472766667440572008-12-17T10:29:00.000-08:002008-12-17T10:35:57.767-08:00The New Lawyer - How Settlement Strategies and Opportunities Have Affected the Responsibilities and Functions of Litigation Counsel<p class="MsoNormal" style="">Anyone who has been involved in the dispute-resolution mechanism knows what a laborious and often mysterious process it can be.<span style=""> </span>Mediation allows the parties involved in the dispute to sidestep the litigation process, while also getting results.<span style=""> </span>Because of the mediator’s neutrality, the settlement resolution is more likely to be perceived as just.<span style=""> </span>Mediation is a defined process that is recognized by attorneys and judges.<span style=""> </span>It is a voluntary, non-binding forum in which the parties agree to conduct negotiations using a neutral intermediary who guides the parties through the legal process.<span style=""> </span>The mediator has no decision-making authority.<span style=""> </span>Rather, it is the mediator’s duty to work with the parties to agree on the terms for conflict resolution.</p> <p class="MsoNormal" style="">During mediation, the attorney’s responsibility is both as an advocate and counselor to the client.<span style=""> </span>When advocating an issue, the skills used by an attorney are different than the approach used in a courtroom.<span style=""> </span>An attorney also counsels the client on issues during the mediation.<o:p> </o:p><br /></p> <p class="MsoNormal" style="">Mediation helps litigants achieve settlement.<span style=""> </span>When compared to the expense of prolonged litigation, mediation may be the best deal.<span style=""> </span>The client has present use of funds, rather than the hope of financial recovery later, while also saving money on pre-trial and trial costs, as well as possible appeal.<span style=""> </span>Litigation costs often surprise clients, particularly if expert testimony is needed.<span style=""> </span>The fees for experts are quite high, usually involving several hundred dollars per hour.<span style=""> </span>During the amount of time experts need to prepare, testify at deposition and appear in court, several thousands of dollars in costs may be incurred quickly.<span style=""> </span>Thus, at an early mediation, a major factor in considering whether to settle is the future expense of proceeding without settling.<o:p> </o:p><br /></p> <p class="MsoNormal" style="">If possible, it is important to work toward mediation as early as possible so that the client may reach his or her goals.<span style=""> </span>Bear in mind that the client is not going to push early mediation.<span style=""> </span>It is the attorney’s responsibility to recognize the advantages of an early mediation and resolution for the client.<span style=""> </span>Most courts, however, distributed alternate dispute resolution materials shortly after a case is filed and either urge counsel to pass the materials on to the client or require them to do so.<span style=""> </span>However, unless the attorney couples this will some counseling on the availability and value of mediation, it is questionable if receiving this material has much impact on the client.<o:p> </o:p><br /></p> <p class="MsoNormal" style="">Research shows that a key factor in litigants’ willingness to use mediation is the recommendation and encouragement of their attorneys.<span style=""> </span>For example, “a majority of parties in domestic relations cases (68 percent men and 72 percent women) who chose to use mediation said their attorneys had encouraged them to try it, whereas less than one-third (32 percent men and 18 percent women) of those who rejected mediation had been encouraged by their attorneys to use it.”<span style=""> </span>(R. Wisler, <i style="">When Does Familiarity Breed Content?<span style=""> </span>A Study of the Role of Different Forms of ADR Education and Experience in Attorneys’ ADR Recommendations</i>, 2 Pepp. Disp. Resol. L.J. 199, 204.)<o:p> </o:p></p> <p class="MsoNormal" style="">Mediation involves an objective intermediary who negotiates with the parties to avoid or end the highly confrontational and tension-filled process of litigation.<span style=""> </span>From the plaintiff’s perspective, it is a means of essentially selling the lawsuit to a defendant, who buys off the expensive and exposure of ongoing litigation.<span style=""> </span>It involves an exchange of offers and counteroffers made in more of an informal business environment, rather than a formal courtroom.</p> <p class="MsoNormal" style="">Hostility, anger, finger pointing and accusations are not part of the mediation process.<span style=""> </span>Diplomacy, salesmanship and patience are the bywords.<span style=""> </span>The parties and their lawyers may be firm, tough and even hard-nosed at times, but they need to do it politely and diplomatically.<span style=""> </span>The parties need to be prepared for mediation by having the appropriate attitude before attending the mediation.<span style=""> </span>Unlike a deposition, this is where the client enters the business process of resolving disputes and essentially steps outside of the courtroom.<o:p> </o:p></p> <p class="MsoNormal" style="">It is advisable to have a pre-mediation conference several days before the mediation occurs.<span style=""> </span>This is two fold process:<span style=""> </span>The mediator may conference (by phone usually) with counsel for the parties, either one on one or together to discuss the mediation, insure that the parties are ready, and that mediator has what he or she needs to make the process work.<span style=""> </span>Counsel should also meet with the client to discuss the process, cover important aspects and get the client ready for the negotiation and decision making process of attempting to reach a resolution of the dispute.<span style=""> </span></p> <p class="MsoNormal" style="">Three aspects are important to stress;<span style=""> </span>First of all the client needs to know that this is not a binding process; there is no third party who is going to decide the case and impose that decision on the client.<span style=""> </span>It is client’s decision to settle.<span style=""> </span>Second, the client should understand that this is not a confrontation.<span style=""> </span>No one is going to testify.<span style=""> </span>It involves an exchange of information so that the parties can be informed and negotiate.<span style=""> </span>Third, the client must understand that what takes place at the mediation is confidential.<span style=""> </span>It may not be brought up during a court trial.<span style=""> </span><o:p> </o:p></p> <p class="MsoNormal" style="">The client should also be encouraged to keep an open mind as the process takes place.<span style=""> </span>Many times, the client’s perspective on settlement will change as the mediation progresses.<span style=""> </span>That is good because the client hears what the other side has to say and can consider the points and counter-points of the case and factor those into the decision making process.<span style=""> </span>It is important for both counsel and the client to listen to what the other side says and also to the mediator’s comments.<span style=""> </span>The mediator will often comment on issues and give his or her views on each side’s case.<span style=""> </span>The mediator may offer the pros and cons of settlement versus proceeding further.<span style=""> </span>This provides an objective, third-party view of the matter, which may be very valuable.</p> <p class="MsoNormal" style="">As the future unfolds, more and more courts will be creating ways for litigants to enter the mediation process at an early stage.<span style=""> </span>The San Francisco Superior Court recently instituted an early mediation program.<span style=""> </span>The San Francisco Bar Association also has a program for early mediation.<span style=""> </span>The federal court has a program of early mediation and “early neutral evaluation” for several years.<span style=""> </span>The future litigation process will rely more on courts and counsel directing litigants to a mediation alternative to litigation – and the earlier the better.<o:p> </o:p></p> <p class="MsoNormal" style="">One concern I have is that I am seeing some reluctance of counsel to guide a case toward the mediation process because of the economic motive of being able to continue to bill a case and earn revenues.<span style=""> </span>Frankly, I have seen evidence of this with opposing counsel in some of our cases. <span style=""> </span>I have also heard this concern expressed by my trial lawyer colleagues and some mediators. <span style=""> </span>It is indeed troublesome when counsel will not communicate with me about mediation even after I have offered to work together to get a discovery plan, or an exchange of information so that we can each have access to what we need to evaluate the case before we discuss resolution.<span style=""> </span>In these troubled economic times, when law firms are folding or letting staff go, there is a concern that the motivation for economic survival will override the professional obligations to work towards a timely and efficient resolution of a dispute. </p> <p class="MsoNormal" style="">There is nothing to lose by mediation and only much to gain, and it is our duty as lawyers to see that a case is tested in that process.<span style=""> </span>Who knows, a good result on both sides may mean more business rather than less.</p>Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0tag:blogger.com,1999:blog-1765624279363744561.post-16479965372427312762008-10-27T15:06:00.000-07:002008-10-27T15:20:05.575-07:00The Lawyer's Role in Preparing the Mediator for Mediation<p class="MsoNormal" style="">Let’s not forget that as our client’s advocate at mediation we have a job to do in preparing the mediator.<span style=""> </span>Before the Mediation starts, the mediator knows only what he learns from the submissions of the parties beforehand.<span style=""> </span>He can learn more about the parties’ respective positions during the mediation, but it is important to give the mediator as much information about the facts of the case, the opinions of experts, the legal issues, and your client’s position in advance so that the mediation day can progress without the mediator having to probe counsel for more information that was not provided initially.<o:p></o:p></p> <p class="MsoNormal" style=""><span style=""> </span><i style=""><u style="">Mediation Statements<o:p><br /><span style="text-decoration: none;"></span></o:p></u></i><br /><span style=""> </span>I am frequently surprised at the skimpy mediation statements that my adversaries submit.<span style=""> </span>Often they submit just a few pages which outline not much more than the answer to the complaint, or they misstate or mislead the mediator as to the facts or law.<o:p></o:p></p> <p class="MsoNormal" style=""><span style=""> </span>Seldom are out mediation statements less than 30 pages.<span style=""> </span>They contain a detailed factual recitation that is usually in a chronological order with headnotes broken down by date range, event or some description.<span style=""> </span>We try to make the factual recitation interesting so that it tells a story.<span style=""> </span>In short, we tell the mediator:<span style=""> </span>“This is what the court and jury are going to hear about our client’s case!”<o:p></o:p></p> <p class="MsoNormal" style=""><span style=""> </span>We also include summaries of what our experts are going to say about liability and damages, often in a separate section of the mediation statement with a separate topic heading devoted to “Expert Opinions.”<span style=""> </span><o:p></o:p></p> <p class="MsoNormal" style=""><span style=""> </span>Then we outline the law focusing on key cases (often attaching one or two cases with key parts highlighted for the mediator).<span style=""> </span>Most often our discussion of the law is based on the jury instructions that we believe will be given by the court.<span style=""> </span>If we are mediating either before a dispositive motion is filed or after it has been filed and before any hearing, we will use a separate section of the brief to advise the court why our motion will be granted or a defense motion will be denied.<span style=""> </span>If our brief has been filed, we will submit a copy of key moving papers to the mediator.<o:p></o:p></p> <p class="MsoNormal" style=""><span style=""> </span>The opening of our mediation statements is usually entitled, “What is This Case About?”<span style=""> </span>In two or three paragraphs we try to outline the essence of the case and the claims of our client – how our client has been irreparably injured by the conduct of the defendant.<span style=""> </span><o:p></o:p></p> <p class="MsoNormal" style=""><span style=""> </span>We construct our mediation statement so that after the mediator reads this introduction and the first new pages, he/she will say:<span style=""> </span>“I got it.”<o:p></o:p></p> <p class="MsoNormal" style=""><i style=""><span style=""> </span><u style="">Exhibits<o:p></o:p></u></i></p> <p class="MsoNormal" style=""><span style=""> </span>The proof of the pudding is in the eating.<span style=""> </span>That is what exhibits are all about.<span style=""> </span>They not only establish facts buy verify the statements in a mediation statement.<span style=""> </span>We include exhibits, which are organized as they are referenced in the mediation statement.<span style=""> </span>Again, we highlight key portions which verify our story about the case.<span style=""> </span>While we do not want to overwhelm the mediator with more than can be absorbed in a reasonable amount of preparation for his/her role as mediator, we also don’t hold back if we need to verify the facts or expert opinions that support our client’s case.<o:p></o:p></p> <p class="MsoNormal" style=""><i style=""><span style=""> </span><u style="">Videos<o:p></o:p></u></i></p> <p class="MsoNormal" style=""><span style=""> </span>Seldom do we attend a mediation without a mediation video.<span style=""> </span>I have written a column on these (August/September 2008, Volume II, Issue 8).<o:p></o:p></p> <p class="MsoNormal" style=""><span style=""> </span>These videos can include family photos (in a death or serious injury case), videos of locations where an accident takes place, a series of photos of damaged vehicles or products that are the subject of the case, reenactments and computer simulations, news segments from television reports, interviews of witnesses (such as family members about the value of the lost relationships in death or serious injury cases), key documents with important portions highlighted or enhanced, and event interviews of expert witnesses.<o:p></o:p></p> <p class="MsoNormal" style=""><span style=""> </span>Material that is specially prepared for the mediation and that is not otherwise available to the parties may be labeled as confidential. <span style=""> </span>We always put an admonition at the beginning and ending of our video that it has been specially prepared for the mediation and is deemed a confidential mediation submission. <span style=""> </span>We cannot protect inclusions which are otherwise discoverable or admissible, but we can protect our work product from being used at trial.<span style=""> </span>(<st1:state st="on"><st1:place st="on">Cal.</st1:place></st1:state> Evid. Code § 1119(b); <i style="">Stewart</i> v. <i style="">Preston Pipeline Inc.</i>, 134 Cal.App.4th 1565, 1576 (2005)[<a name="SearchTerm"></a><a name="SR;5551"></a><span style="">“videotapes…were…covered by the mediation-confidentiality provisions of section 1119 to extent that they were prepared for the purpose of, in the course of, or pursuant to, the mediation in the underlying action.”</span>].<o:p></o:p></p> <p class="MsoNormal" style=""><i style=""><span style=""> </span><u style="">Private Letters<o:p></o:p></u></i></p> <p class="MsoNormal" style="">The confidential, private letter to the mediator is an effective tool in preparing the mediator before the mediation. We use this letter as a means of:<o:p></o:p></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in;"><!--[if !supportLists]--><span style="font-family:Symbol;"><span style="">·<span style=""> </span></span></span><!--[endif]-->Advising the mediator who will attend the mediation on our client’s behalf, giving a brief description of their role (client’s family, consultants/experts and our attorneys);<o:p></o:p></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in;"><!--[if !supportLists]--><span style="font-family:Symbol;"><span style="">·<span style=""> </span></span></span><!--[endif]-->Providing the mediator with additional information about our experts and consultants (e.g.. medical reports from consultants who have evaluated a part of the case and advised that their opinions would not support a particular damage claim);<o:p></o:p></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in;"><!--[if !supportLists]--><span style="font-family:Symbol;"><span style="">·<span style=""> </span></span></span><!--[endif]-->Demonstrating structured proposals;<o:p></o:p></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in;"><!--[if !supportLists]--><span style="font-family:Symbol;"><span style="">·<span style=""> </span></span></span><!--[endif]-->Submitting written statements from witnesses that the other side has not obtained in discovery;<o:p></o:p></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in;"><!--[if !supportLists]--><span style="font-family:Symbol;"><span style="">·<span style=""> </span></span></span><!--[endif]-->Providing information on insurance and our comments regarding the carrier’s position and approach;<o:p></o:p></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in;"><!--[if !supportLists]--><span style="font-family:Symbol;"><span style="">·<span style=""> </span></span></span><!--[endif]-->Providing comments on apportionment of liability among several defendants;<o:p></o:p></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in;"><!--[if !supportLists]--><span style="font-family:Symbol;"><span style="">·<span style=""> </span></span></span><!--[endif]-->Providing comments on prior dealings with defense counsel and/or the parties or carriers involved;<o:p></o:p></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in;"><!--[if !supportLists]--><span style="font-family:Symbol;"><span style="">·<span style=""> </span></span></span><!--[endif]-->Relaying thoughts on how the negotiations might progress.<o:p></o:p></p> <p class="MsoNormal" style=""><o:p></o:p>The private letter assumes that the formal mediation statement will be exchanged.<o:p></o:p> I am an advocate of exchanging mediation statements.<span style=""> </span>Maybe it will not tell the other side everything, but it will put your case before your adversary.<span style=""> </span>Unless the adversary knows that case, how can its counsel evaluate your position?<o:p></o:p></p> <p class="MsoNormal" style=""><o:p></o:p></p> <p class="MsoNormal" style=""><i style=""><span style=""> </span><u style="">Pre-Mediation Conference<o:p></o:p></u></i></p> <p class="MsoNormal" style=""><span style=""> </span>I am also a fan of a pre-mediation conference with the mediator.<span style=""> </span>This serves several purposes. First of all, the mediator can outline what is important to him/her (i.e. what information is deemed important for the neutral).<span style=""> </span>Second, the mediator can advise the parties of the date for a timely submission of the written submissions.<span style=""> </span>Third, the parties can exchange ideas on how the mediation should be approached.<span style=""> </span>And, if the parties need additional information before the mediation, they can request such.<o:p></o:p></p> <p class="MsoNormal" style=""><span style=""> </span><i style=""><u style="">Timing of the Mediation Submission<o:p></o:p></u></i></p> <p class="MsoNormal"><i style=""><span style=""> </span></i>I also believe that any mediation submissions should be provided at least week before the mediation.<span style=""> </span>In fact, weeks before is not too early.<span style=""> </span>It is not effective to submit a several page statement a day or two beforehand. If counsel cannot do better, then the mediation should be continued to a date that will allow the parties to have a full and timely exchange of information, and the mediator will have what he/she needs to give them the best chance for resolution.<o:p></o:p></p>Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0tag:blogger.com,1999:blog-1765624279363744561.post-69887975210250429922008-10-07T16:44:00.000-07:002008-10-07T16:59:11.789-07:00What Type of Negotiation Personality Are You<p class="MsoNormal" style="font-family: georgia;">Before representing your client in negotiations, particularly in the more formalized environment of a mediation, it is important to assess what type of negotiator you are.<span style=""> </span>You, your client, and any mediator who is used, must work together to seek a voluntary resolution.<span style=""> </span>That takes a different persona than the advocate at trial.<span style=""> </span>You are indeed still an advocate, but one with a different presence.<o:p></o:p></p> <p class="MsoNormal" style="font-family: georgia;">Recently I attended a mediation in which we represented a local auto retailer that made available rental cars for its customers and also to employees.<span style=""> </span>An employee rented a car and was involved in an accident in which he was killed and his passenger was seriously injured. <span style=""> </span>Both sued. Our client was named in the lawsuit even though there was a separate subsidiary handling the rental operation.<span style=""> </span>There was a CGL policy which sought to exclude rental cars.<span style=""> </span>The client’s broker had not obtained proper coverage for our client.<span style=""> </span>Faced with a limits demand, the CGL carrier settled and sought reimbursement from our client.<span style=""> </span>We sued the broker as well.<span style=""> </span><o:p></o:p></p> <p class="MsoNormal" style="font-family: georgia;">The broker’s attorney was difficult.<span style=""> </span>At a mediation of the cases, he exhibited an antagonist and hostile attitude that interfered with the process.<span style=""> </span>He just did not “get it.”<span style=""> </span>It made the process difficult because my client and the carrier wanted to settle the case.<span style=""> </span>I just did not understand why the broker’s lawyer had to be so difficult.<span style=""> </span>Fortunately, there was a more responsive claims representative from the broker’s carrier present, and based on some excellent skills by our mediator, the whole case was resolved.<o:p></o:p></p> <p class="MsoNormal" style="font-family: georgia;">Negotiating a case is an active and dynamic process which inserts your personality into the case as an advocate for your client, just as it does at trial.<span style=""> </span>The advocacy, however, is different.<span style=""> </span>Instead of simple persuasion, you are using your skills to cause your adversary and his or her client to recognize the vulnerability of their case, and to voluntarily enter into the process of trying to find a point of resolution before trial.<span style=""> </span>Your adversary must be motivated to seek that resolution, and your approach and personality are parts of the process of that motivation.<o:p></o:p></p> <p class="MsoNormal" style="font-family: georgia;">Each of us presents a personality in negotiations.<span style=""> </span>There are some lawyers I know who are excellent in most all respects but have a hard time switching hats from pure advocacy to negotiation advocacy, which is a much different process.<span style=""> </span>They are tough, hard-hitting lawyers who can push a case, work it up for trial, handle the motion practice, and try the case.<span style=""> </span>However, when it comes to changing gears to a “negotiator,” they just don’t seem to understand the process well enough to be very effective.<span style=""> </span>As a result, they end up with cases that do not produce good economic results: verdicts between offers and demands, or simply cases where the necessary expense of trial is not warranted, i.e., cases where liability may be strong but the damages or collection of the judgment does not justify a full-blown trial.<o:p></o:p></p> <p class="MsoNormal" style="font-family: georgia;">My sense of the personality types – generalizing of course – is as follows.<span style=""> </span>Bear in mind that some present a combination of these, or in rare cases, all of these:<o:p></o:p></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in; font-family: georgia;"><!--[if !supportLists]--><span style="">·<span style=";font-size:7;" > </span></span><!--[endif]--><b style="">The Aggressive Type</b> – no mater what the discussion, this type tries to take over and control everyone by being very aggressive.<o:p></o:p></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in; font-family: georgia;"><!--[if !supportLists]--><span style="">·<span style=";font-size:7;" > </span></span><!--[endif]--><b style="">The Angry Type </b>– everything seems to evoke an angry response, sometimes raising the temperature of the negotiations.<span style=""> </span>Not good, obviously.<o:p></o:p></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in; font-family: georgia;"><!--[if !supportLists]--><span style="">·<span style=";font-size:7;" > </span></span><!--[endif]--><b style="">The Hostile/Confrontational Type</b> – wants to give an opening statement in the first caucus to show his or her clients what a great advocate he or she is and how he or she can get in the face of the other side.<o:p></o:p></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in; font-family: georgia;"><!--[if !supportLists]--><span style="">·<span style=";font-size:7;" > </span></span><!--[endif]--><b style="">The “I Cannot Work in this Process” Type</b> – just does not understand the process and how one must engage in the “give-and-take” of negotiations.<span style=""> </span>It is a compromise, but this type does not understand that.<span style=""> </span><o:p></o:p></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in; font-family: georgia;"><!--[if !supportLists]--><span style="">·<span style=";font-size:7;" > </span></span><!--[endif]--><b style="">The “Close to the Vest” Type</b> – wants to keep everything confidential; will not exchange mediation statements.<span style=""> </span>For some reason, believes that exploring the issues is harmful.<o:p></o:p></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in; font-family: georgia;"><!--[if !supportLists]--><span style="">·<span style=";font-size:7;" > </span></span><!--[endif]--><b style="">The “Unprepared” Type</b> – just is not ready, and may simply be looking for a way to resolve the case and earn a fee, rather than work the case up.<o:p></o:p></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in; font-family: georgia;"><!--[if !supportLists]--><span style="">·<span style=";font-size:7;" > </span></span><!--[endif]--><b style="">The “Unrealistic” Type</b> – for many reasons, including lack of preparation or ability to evaluate a case, does not understand the issues or damages; or simply has an highly inflated view of the value or a very low deflated view of the exposure of the client.<o:p></o:p></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in; font-family: georgia;"><!--[if !supportLists]--><span style="">·<span style=";font-size:7;" > </span></span><!--[endif]--><b style="">The “Doesn’t Understand the Case” Type</b> – here there is a lack of legal analytical skills and an understanding of what the case is about – legally and not emotionally, usually is the problem.<o:p></o:p></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in; font-family: georgia;"><!--[if !supportLists]--><span style="">·<span style=";font-size:7;" > </span></span><!--[endif]--><b style="">The “I Get Frustrated with the Process” Type</b> – has a hard time with the process of “give-and-take” because of impatience, and also lacks a sense of how to move through the process and engage the other side in the negotiation process.<o:p></o:p></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in; font-family: georgia;"><!--[if !supportLists]--><span style="">·<span style=";font-size:7;" > </span></span><!--[endif]--><b style="">The “I am Trying to Get the Case Cheap” Type</b> – this applies to the insurance company that believes if it goes to mediation, it will get a “good deal,” and that its representatives are attending a “fire sale,” not a real supervised negotiation.<span style=""> </span>Carriers often approach early mediation this way, rather than taking a serious look at the carriers “down the line” costs plus exposure.<span style=""> </span>Often an insurer will not spend the money to allow its counsel, panel counsel, or coverage counsel to evaluate the case in the real light of day.<o:p></o:p></p> <p class="MsoNormal" style="font-family: georgia;">You probably can describe others, but each of these represents an impediment to <o:p></o:p>the process, frustrates the other parties and mediator, and simply stands in the way of resolution.<span style=""> </span>For the most part these are “negative” personality types that make it difficult to resolve a case.<span style=""> </span>Those who are not successful in either the negotiation or mediation process most likely exhibit traits of one or more of these types of lawyers in the negotiation setting.<o:p></o:p></p> <p class="MsoNormal" style="text-indent: 0.5in; font-family: georgia;">The more positive personality types include:<o:p></o:p></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in; font-family: georgia;"><!--[if !supportLists]--><span style="">·<span style=";font-size:7;" > </span></span><!--[endif]--><b style="">The “I Understand the Process and Can Work in It” Type</b> – they know how it all works.<span style=""> </span>Their clients are ready to make decisions and they have provided both the mediator and other side with a solid, well organized statement of the case.<o:p></o:p></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in; font-family: georgia;"><!--[if !supportLists]--><span style="">·<span style=";font-size:7;" > </span></span><!--[endif]--><b style="">The “Diplomatic” Type</b> – can present the case forcefully in the calm environment of negotiation process.<o:p></o:p></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in; font-family: georgia;"><!--[if !supportLists]--><span style="">·<span style=";font-size:7;" > </span></span><!--[endif]--><b style="">The “I Will be Up Front” Type</b> – “Candor are a lovely virtue.”<o:p></o:p></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in; font-family: georgia;"><!--[if !supportLists]--><span style="">·<span style=";font-size:7;" > </span></span><!--[endif]--><b style="">The “Well Prepared” Type</b> – refreshingly well versed in all phases of the case.<span style=""> </span>Could start trial shortly because he or she knows the case.<o:p></o:p></p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.25in; font-family: georgia;"><!--[if !supportLists]--><span style="">·<span style=";font-size:7;" > </span></span><!--[endif]--><b style="">The “I Understand the Value of My Client’s Case” Type</b> – realistic about the cost of going to trial vs. settlement; knows the verdict ranges; understands the “present value” of money; has let the client know what the financial benefits are of settlement at this time.<o:p></o:p></p> <p class="MsoNormal" style="font-family: georgia;">The successful negotiators present a combination of these positive traits.<span style=""> </span>There may be occasional lapses where each of us exhibits one or more of the negative traits during the negotiation process. <span style=""> </span>However, the successful negotiators are aware when these lapses occur, recognize them, and return to exhibiting the positive ones that improve the chances for resolution.<o:p></o:p></p> <p class="MsoNormal" style="font-family: georgia;">A major problem is presented when we have an adversary who truly falls into the negative personality types and is stuck there.<span style=""> </span>My experience is that usually this type is reluctant to go to mediation; but if it happens, then you need to have a very candid discussion with the mediator beforehand to discuss how to approach the mediation.<span style=""> </span>It may be that the mediator has to exercise some strong influence on your adversary and his or her client to assess how to approach the mediation process.<o:p></o:p></p>Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0tag:blogger.com,1999:blog-1765624279363744561.post-91317791872620519672008-09-09T13:38:00.000-07:002008-09-09T13:46:31.149-07:00Using Videos at Mediation<p class="MsoNormal" style="line-height: 15.6pt;">Using videos at a mediation can be an excellent supplement to a mediation statement. <span style=""> </span>It is a great way to provide the visual information that your adversaries and the mediator need to evaluate the case.<span style=""> </span>Over the past several years, I have submitted a confidential mediation video in at least 75% of the cases I have taken to mediation.<span style=""> </span>Personal injury cases are especially susceptible to the use of a video.<span style=""> </span>It is an excellent way to tell your client’s story. <span style=""> </span>We seldom go to mediation without a video in serious injury or wrongful death cases.<br /><br />We have had two highway wrongful death cases go to mediation in the last few months. <span style=""> </span>We used videos in both, and they both settled for top value.<span style=""> </span>Both involved defendants who were governmental entities.<span style=""> </span>Here is how we approached each with video.</p> <p class="MsoNormal" style="line-height: 15.6pt;"><u>Case No. 1</u>:<span style=""> </span>This was a case by a 42 year-old widow with no children whose husband, a law firm accounting employee, was killed when a teenager driving his parents’ Mercedes was speeding down a roadway that had a history of cross-over accidents.<span style=""> </span>Because of infighting between a County and City, separate governmental entities, a four lane expressway running for about 2.5 miles between two main streets in San Mateo County, California had no raised median barrier.<span style=""> </span>After a death case a few years ago, a partial six foot raised median barrier was installed but only over about 25% of the roadway.<span style=""> </span>Then our client’s husband was killed when the recently licensed teenager missed a curve on an unlighted section of the road.<span style=""> </span>Fortunately his parents had liability coverage of $1.5 Million, but the case was worth more.<span style=""> </span></p> <p class="MsoNormal" style="line-height: 15.6pt;">After a period of aggressive discovery during which we uncovered more details about the infighting over who was going to pay for the remainder of the barrier, we scheduled a mediation.<span style=""> </span>Our video contained:</p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.5in; line-height: 15.6pt;"><!--[if !supportLists]--><span style="font-family: Symbol;"><span style="">·<span style="font-family: "Times New Roman"; font-style: normal; font-variant: normal; font-weight: normal; font-size: 7pt; line-height: normal; font-size-adjust: none; font-stretch: normal;"> </span></span></span><!--[endif]-->An introduction to our client and her husband with compelling photos of them at their wedding, on vacation, with family and friends;</p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.5in; line-height: 15.6pt;"><!--[if !supportLists]--><span style="font-family: Symbol;"><span style="">·<span style="font-family: "Times New Roman"; font-style: normal; font-variant: normal; font-weight: normal; font-size: 7pt; line-height: normal; font-size-adjust: none; font-stretch: normal;"> </span></span></span><!--[endif]-->A segment from a news broadcast showing the accident scene;</p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.5in; line-height: 15.6pt;"><!--[if !supportLists]--><span style="font-family: Symbol;"><span style="">·<span style="font-family: "Times New Roman"; font-style: normal; font-variant: normal; font-weight: normal; font-size: 7pt; line-height: normal; font-size-adjust: none; font-stretch: normal;"> </span></span></span><!--[endif]-->Photos of the cars in position after the accident;</p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.5in; line-height: 15.6pt;"><!--[if !supportLists]--><span style="font-family: Symbol;"><span style="">·<span style="font-family: "Times New Roman"; font-style: normal; font-variant: normal; font-weight: normal; font-size: 7pt; line-height: normal; font-size-adjust: none; font-stretch: normal;"> </span></span></span><!--[endif]-->A computer reenactment of the accident demonstrating the speed of the teenager’s car, and also providing evidence that a raised median barrier would have still prevented the head-on collision;</p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.5in; line-height: 15.6pt;"><!--[if !supportLists]--><span style="font-family: Symbol;"><span style="">·<span style="font-family: "Times New Roman"; font-style: normal; font-variant: normal; font-weight: normal; font-size: 7pt; line-height: normal; font-size-adjust: none; font-stretch: normal;"> </span></span></span><!--[endif]-->A video of the roadway before the accident;</p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.5in; line-height: 15.6pt;"><!--[if !supportLists]--><span style="font-family: Symbol;"><span style="">·<span style="font-family: "Times New Roman"; font-style: normal; font-variant: normal; font-weight: normal; font-size: 7pt; line-height: normal; font-size-adjust: none; font-stretch: normal;"> </span></span></span><!--[endif]-->Photos of the barrier being completed over the entire segment of the roadway a few months after our client’s husband was killed; and</p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.5in; line-height: 15.6pt;"><!--[if !supportLists]--><span style="font-family: Symbol;"><span style="">·<span style="font-family: "Times New Roman"; font-style: normal; font-variant: normal; font-weight: normal; font-size: 7pt; line-height: normal; font-size-adjust: none; font-stretch: normal;"> </span></span></span><!--[endif]-->More compelling photos of our client, her husband and family.</p> <p class="MsoNormal" style="line-height: 15.6pt;">We were careful not to oversell the message here:<span style=""> </span>Could this accident have been prevented?<span style=""> </span>Should it have been prevented?<span style=""> </span>The video told the story.<span style=""> </span>The case settled with the County, who essentially controlled whether the barrier would be built and was the impediment to it not being fully completed before our client’s husband was killed, paying a significant amount to complete the global settlement.</p> <p class="MsoNormal" style="line-height: 15.6pt;"><u>Case No. 2</u>:<span style=""> </span>The second death case was more difficult.<span style=""> </span>An errant driver who was likely having difficulties from insulin insufficiency crossed over on the upward side of a hill trying to pass two vehicles.<span style=""> </span>Clearly he was negligent.<span style=""> </span>He struck a vehicle being driven by the 25 year-old Filipino daughter of our clients.<span style=""> </span>The decedent lived at home with her parents and her sister, who was younger and a student at the University of California at Davis.<span style=""> </span>She was beautiful inside and out, as was her sister.<span style=""> </span>The family was extremely close following the cultural pattern of her heritage.<span style=""> </span></p> <p class="MsoNormal" style="line-height: 15.6pt;">The problem was the driver had 15/30 coverage.<span style=""> </span>The State of California maintained the road which was an old farm road that had been repaved and redone in a patchwork manner.<span style=""> </span>Over the years it became a major thoroughfare between Interstate 80 and Central California.<span style=""> </span>Despite the heavy increase in traffic, and some major accidents, it was not improved the way it should have been.<span style=""> </span>The stretch where our clients’ daughter was killed was particularly dangerous because of a series of hills that impeded drivers going in her direction from having a line of sight for oncoming vehicles, and also because of raised areas along her right that prevented her from escaping safely off the roadway should a car come as the driver’s car did.<span style=""> </span>The decedent was essentially trapped in this area, with no way to see far enough ahead and no where to go if she could see a vehicle coming toward in the wrong lane of traffic.<span style=""> </span></p><p class="MsoNormal" style="line-height: 15.6pt;">But there was another problem.<span style=""> </span>We had little in the way of economic damages.<span style=""> </span>Under the California rules (resulting from Proposition 51 passed in 1986; Cal. Civ. Code sec. 1431.2), a defendant at fault is responsible jointly for all economic damages.<span style=""> </span>However, for non-economic damages, a defendant is responsible only for that portion of these damages that is equivalent to its percentage of fault.<span style=""> </span>The State argued for either no liability or a small percentage fault, which would keep the verdict low.<span style=""> </span></p> <p class="MsoNormal" style="text-indent: 0.5in; line-height: 15.6pt;">Our video contained segments showing:</p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.5in; line-height: 15.6pt;"><!--[if !supportLists]--><span style="font-family: Symbol;"><span style="">·<span style="font-family: "Times New Roman"; font-style: normal; font-variant: normal; font-weight: normal; font-size: 7pt; line-height: normal; font-size-adjust: none; font-stretch: normal;"> </span></span></span><!--[endif]-->The heavy flow of traffic on the segment of road where the decedent was killed (at 7 a.m. in the morning during “commute” hours);</p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.5in; line-height: 15.6pt;"><!--[if !supportLists]--><span style="font-family: Symbol;"><span style="">·<span style="font-family: "Times New Roman"; font-style: normal; font-variant: normal; font-weight: normal; font-size: 7pt; line-height: normal; font-size-adjust: none; font-stretch: normal;"> </span></span></span><!--[endif]-->Photos of the accident area, and the vehicles (we chose the less grizzly ones; indeed there were some that were gruesome);</p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.5in; line-height: 15.6pt;"><!--[if !supportLists]--><span style="font-family: Symbol;"><span style="">·<span style="font-family: "Times New Roman"; font-style: normal; font-variant: normal; font-weight: normal; font-size: 7pt; line-height: normal; font-size-adjust: none; font-stretch: normal;"> </span></span></span><!--[endif]-->A series of videos showing the path of each vehicle which clearly demonstrate the lack of visibility on the approach to four hills in sequence, and the high bank on the driver’s right preventing any exit of the roadway even if she saw a vehicle in time to try to avoid it; the “trap” was clear;</p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.5in; line-height: 15.6pt;"><!--[if !supportLists]--><span style="font-family: Symbol;"><span style="">·<span style="font-family: "Times New Roman"; font-style: normal; font-variant: normal; font-weight: normal; font-size: 7pt; line-height: normal; font-size-adjust: none; font-stretch: normal;"> </span></span></span><!--[endif]-->An interview of the decedent’s cousin about the family relationship and the close knit family unit that this Filipino family enjoyed;</p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.5in; line-height: 15.6pt;"><!--[if !supportLists]--><span style="font-family: Symbol;"><span style="">·<span style="font-family: "Times New Roman"; font-style: normal; font-variant: normal; font-weight: normal; font-size: 7pt; line-height: normal; font-size-adjust: none; font-stretch: normal;"> </span></span></span><!--[endif]-->An interview of the decedent’s sister showing again the close family relationship; and</p> <p class="MsoNormal" style="margin-left: 1in; text-indent: -0.5in; line-height: 15.6pt;"><!--[if !supportLists]--><span style="font-family: Symbol;"><span style="">·<span style="font-family: "Times New Roman"; font-style: normal; font-variant: normal; font-weight: normal; font-size: 7pt; line-height: normal; font-size-adjust: none; font-stretch: normal;"> </span></span></span><!--[endif]-->Various family photos from vacations and holidays.</p> <p class="MsoNormal" style="line-height: 15.6pt;">I should add here that the interviews of the family members were outstanding.<span style=""> </span>Both the cousin and sister were compelling – genuine, intelligent, completely credible, and appropriately emotional at the right time.<span style=""> </span>They would have been outstanding witnesses at trial. <span style=""> </span>Even the State’s counsel openly conceded at mediation that we had an excellent non-economic case after he saw the video.<span style=""> </span>He had taken the depositions of the parents, but he had not really touched on the relationship issues as much as we had hoped. <span style=""> </span>We had to bring the evidence on this issue to him.</p><p class="MsoNormal" style="line-height: 15.6pt;">This case also settled on the strength of the video, plus one our of experts on highway design attended the mediation with outstanding drawings showing the configuration of this old farm road and how it had only been paved but not altered to avoid the dangerous condition that was created by the grades and configuration of the hills in the area where our clients’ daughter was killed.</p> <p class="MsoNormal" style="line-height: 15.6pt;">I have other examples of how video has supplemented our mediation statements and other parts of our mediation presentation.<span style=""> </span>Personal injury and death cases are good cases for visual information.<span style=""> </span>Medical cases often lend themselves to video presentations.<span style=""> </span>I often get a treating physician to do an overview of the medical issues with charts, models or other illustrations to supplement the written medical presentation.<span style=""> </span>Strong visual stimuli will assist in supporting your written presentation.<span style=""> </span></p> <p class="MsoNormal" style="line-height: 15.6pt;">I usually try to keep them no more than 60 minutes.<span style=""> </span>In fact, I often tell my attorneys and staff to keep it to a “classroom hour,” if they can.</p> <p class="MsoNormal" style="line-height: 15.6pt;">We also always put appropriate titles on the video and put a statement such as the following at the beginning and end:<span style=""> </span>“This video presentation has been prepared for this mediation and is intended to be a confidential mediation video for the negotiations under the supervision of [mediator] on [date].”<span style=""> </span>Sometimes I cite to the statutory or court rules protecting this information.</p> <p class="MsoNormal" style="line-height: 15.6pt;">Pictures are definitely worth many words here, and are a great supplement to a well organized and comprehensive mediation statement. </p> <div style=""><hr align="left" size="1" width="33%"> <!--[endif]--> <div style="" id="ftn1"> <p class="MsoFootnoteText"><a style="" href="http://www.blogger.com/post-edit.g?blogID=1765624279363744561&postID=9131779187262051967#_ftnref1" name="_ftn1" title=""><span class="MsoFootnoteReference"><span style=""><!--[if !supportFootnotes]--><span class="MsoFootnoteReference"><span style=""></span></span></span></span></a></p></div></div>Guy O. Kornblumhttp://www.blogger.com/profile/06915451290297421021noreply@blogger.com0