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ALTERNATIVE DISPUTE RESOLUTION
NATIONAL WEBINARJune 17, 2014
(c) Teddy Snyder 2014
Teddy Snyder mediates Workers Compensation cases throughout California.
An attorney since 1977, she has concentrated on claim settlement for over 20 years.
Teddy was in the first group LEXIS-NEXIS named as notable persons in Workers Compensation in 2008.
She is a nationally recognized expert on Medicare Secondary Payer and Affordable Care Act issues affecting settlement, having written and spoken extensively on these subjects.
I keep six honest serving-men(They taught me all I knew);Their names are What and Why and When And How and Where and Who.
Rudyard Kipling
AND THEN THERE’S LONGSHORE
AND DEFENSE BASE ACT
ARBITRATION
MEDIATION
ALTERNATIVE DISPUTE CHOICES
ALTERNATIVE TO WHAT?
AT PUBLIC OR PRIVATE FACILITY
MAY BE PUBLICLY OR PRIVATELY FUNDED
USUALLY BY AGREEMENT
CARVE-OUTS
WHAT IS ARBITRATION?
PRIVATE
SUBSTITUTE FORCOURT PROCEEDING
CONDUCTED BY A NEUTRAL
WHICH RESULTS IN A RULING
RULES
WHEN TO ARBITRATEWHO CAN BE ARBITRATOR
WHAT ISSUES TO ARBITRATEHOW TO INTRODUCE EVIDENCE
HOW TO ENFORCE AWARD
ARBITRATION
DEFINITIVE RULINGCAN BE BINDING
No right of appealOR
NON-BINDINGCan Request Trial De Novo
ADVANTAGES OF ARBITRATION
FASTER THAN A COURT PROCEEDINGStart Date/Continuity of Proceedings
Speed Saves Money
CAN CHOOSE THE ARBITRATORFairness Issues
WHAT IS MEDIATION?
A voluntary meeting where a neutral person, the mediator chosen by the parties,
helps the parties communicate to resolve their disputes
WHAT IS MEDIATION?
Mediation is facilitated negotiation
WHY DO YOU NEED IT?
Most likely, your attorney is a gladiator, not a settlement expert
MEDIATION
Get a SettlementNot a hearing-no rules
Any IssueNo admission of evidence
Not Binding
WHO’S USING MEDIATION?MORE THAN A DOZEN STATES HAVE
WORKERS COMPENSATION MEDIATION PROGRAMS
Alabama (ombudsperson)Florida Georgia Indiana (ombudsperson)LouisianaMichiganMississippi
MontanaNorth CarolinaOhioOregonPennsylvania South Carolina West Virginia
WHO’S USING MEDIATION?
STILL PRETTY NEW IN CA
HARDLY USED IN NY
MANDATORY MEDIATION CHANGES
HOW CLAIMS ARE LITIGATED
LITIGATION IS GEARED TOWARD SETTLEMENT
WHY WOULD AN EMPLOYER CLOSE CLAIMS?
• UNCERTAINTY OF OUTCOME• “STOP THE BLEED”• INFLATION RISK• MORTALITY RISK• CLOSE RESERVE• RECOVER BONDING EXPENSE• COST OF ADMINISTRATION
WHY WOULD AN APPLICANT CLOSE A CLAIM?
• UNCERTAINTY OF OUTCOME• CONTROL OF MEDICAL TREATMENT• NEED FOR CASH• GET ON WITH LIFE• LEAVE AN ESTATE
WE DON’T WANT TO SHOW OUR HAND
CONFIDENTIALITY
EVIDENCE CREATED SOLELY FOR MEDIATION IS NOT ADMISSIBLE
MEDIATOR CANNOT BE SUBPOENAED
WHEN TO CONSIDER MEDIATION?
CLAIMS WHERE THE PARTIES ARE CONSIDERING A COMPLETE SETTLEMENT
CLAIMS WHERE THE APPLICANT HAS REACHED
MAXIMUM MEDICAL IMPROVEMENT
IMMINENT TRIAL
WHICH CLAIMS ARE GOOD MEDIATION CANDIDATES?
OLDER CLAIMS
CLAIMS WHERE THE PRESENCEOF A KNOWLEDGEABLE NEUTRAL
WOULD BE HELPFUL“Other side is unreasonable”
Applicant gets to tell the story- Update Applicant’s statusGet a neutral view- preserve attorney-client relationship
COMPLEX CLAIMS
WHICH CLAIMS ARE GOOD MEDIATION CANDIDATES?
APPLICANT IS 61 YEARS OLD
DEATH CASES
CLAIM WAS STIPULATED BUT MEDICAL ISSUES ARE ACTIVE
PRO SE/ IN PRO PER
CLAIMS WHERE THE PARTIES WANT TO PRESERVE A RELATIONSHIP
EARLIER IS BETTER THAN LATER
PARTIAL RESOLUTION IS BETTER THAN NO RESOLUTION
WHEN?
THE PARTIES CHOOSE THE TIME, DATE, AND DURATION OF THE MEDIATION
No waiting for court calendarsNo frustration with too little time to air the issuesNo wasted Court appearancesYou can mediate pending appeal or reconsideration
How about tomorrow?
PRELIMINARIES
AGREEMENT TO MEDIATEFinancial Arrangements
ACKNOWLEDGEMENT OF CONFIDENTIALITY
WHO SHOULD BE IN THE MEETING?
The decision-makers, their representatives, other necessary experts or support persons
WHAT ISSUES CAN BE RESOLVED?
VALUATION
MEDICAL TREATMENT
RETURN TO WORK
WHAT ISSUES CAN BE RESOLVED?
THIRD PARTY CLAIMS
PAST DUE BENEFITS
LIENS
YOU NAME IT
DEFINING THE ISSUES
PRE-MEDIATION
PARTIES’ BRIEFS
OPENING SESSION
THROUGHOUT THE MEDIATION
HOW DOES IT WORK?
PRE-MEDIATION COMMUNICATION
USUALLY, THERE IS AN OPENING SESSION
SPLIT INTO CAUCUSES, SEPARATE ROOMSConfidentiality, Candor
SHUTTLE DIPLOMACYMediator can shape the conversation, be the best person to deliver bad news
MAY RE-CONVENE FOR e.g., CLARIFICATION, BRAINSTORMING
MEDIATOR’S PROPOSAL
WHO MAKES THE DECISIONS?
THE PARTIES
STUDIES SHOW PARTIES ARE MORE SATISFIED WITH A MEDIATED RESULT THAN A COURT RULING
WHAT HAPPENS NEXT?
MEMORANDUM OF UNDERSTANDINGSTIPULATION
COMPROMISE &RELEASE
COURT APPROVAL AS NECESSARY
MEDIATOR MAY FOLLOW UP WITH PARTIES IF FURTHER DIALOGUE MAY BE HELPFUL
WHAT IS SUCCESS?
MED/ARB
ARB/MED
KEY TO A SUCCESSFUL ADR
PREPARATION
TEDDY SNYDER
WCMediator.com
310/889-8165
No charge to start the discussion!
