Brand Mediation Services
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The opening session
The opening session
Traditionally mediations have started with getting all of the parties together for a group session. There are certainly times when the group session can be very productive – other times not so much. In some cases hearing directly from the opposing party can create more contention and make settlement more difficult. I, therefore, favor the practice of meeting with each side separately first. Once I have met with all sides a decision can be made as to whether or not a group session will help or hinder.
Jonathan Brand Mediation (925) 286-1450
#crossovermediation #
Making a presentation at mediation
Making a presentation at mediation.
I am not a big fan of making a presentation at mediation. Not against it – just not a fan. Why?
In most cases, such presentations are done by the plaintiff to address a liability dispute or to document damages.
Let’s make a few assumptions:
1. Insurance companies have a process they need to follow to obtain authority. In some cases no matter how compelling the presentation the carrier will simply not be able to obtain additional authority at the mediation. The result is that settlement is delayed and an opportunity is missed.
2. That the parties are actually interested in settling the case at mediation. In that case, consider making the presentation a few weeks before the mediation to allow it to have the impact desired.
Jonathan Brand Mediation (925) 286-1450
#crossovermediation #
“When to retain a liability expert – before or after mediation.”
When to retain a liability expert – before or after mediation.
Before: When liability is contested it may make sense to retain the expert before mediation. It shows your commitment to the case to the opposition. It shows the other side that you may have a better case than they previously thought. If the expert doesn’t like your case it gives you a reason to compromise at mediation.
After: In some cases, the issues are pretty straightforward. You know you can get an expert to support your case if needed. It may make sense to try mediation before spending big money on experts.
In general, retaining an expert early and sharing with the opposition increases the probability of success at mediation. Jonathan Brand Mediation (925) 286-1450
#crossovermediation #
CALIFORNIA EVIDENCE CODE SECTION 1129 PROVIDES AS FOLLOWS:
Except in the case of a class or representative action, an attorney representing a client participating in a mediation or a mediation consultation shall, as soon as reasonably possible before the client agrees to participate in the mediation or mediation consultation, provide that client with a printed disclosure containing the confidentiality restrictions described in Section 1119 and obtain a printed acknowledgment signed by that client stating that he or she has read and understands the confidentiality restrictions. #
The Ultimatum
The ultimatum comes up in mediation from time to time.
The defense thinks the demand is way out of the ballpark. The defense then indicates no offer will be made unless the plaintiff makes a “reasonable demand”. Sometimes they indicate the demand must be below a certain number.
The plaintiff thinks the offer is way too low or the defense did not move enough last time around. Plaintiff issues an ultimatum: Get to this certain number or we are done.
Admittedly sometimes these tactics work. However, many times they end mediations that could continue to a productive end.
The ultimatum as a tactic is usually the result of frustration with the other side or in reaction to feeling disrespected.
My suggestion is this: Never miss an opportunity to take a turn. Even a modest move keeps the negotiations in play. You can make a modest move with a characterization – our move would be more significant if the other side was at such and such…
Resist moves that give the other side the opportunity to call it a day. #crossovermediation #
“The power of an apology”
We all make mistakes. Sometimes we do or say something that we regret. Offering a sincere apology goes a long way to making things right. This is true in personal relationship, business relationships, and in litigation. Taking responsibility for an accident or injury can make a big difference in getting the case resolved. Never underestimate the power of a sincere apology. #crossovermediation #
CALIFORNIA EVIDENCE CODE SECTION 1119 (C) PROVIDES AS FOLLOWS:
“What you tell me at mediation is not communicated to the other side without your permission. California Evidence Code Section 1119 (c) provides as follows: All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential. #crossovermediation #
“I am pleased to announce, as of the first of the New Year [2022]”
I am looking forward to the beginning of the New Year. I’ve practiced law for more than 35 years – my future focus will be as a mediator on Personal Injury and Worker’s Compensation—serving Contra Costa San Francisco Bay Area. I am a member of the Contra Costa Superior Court ADR Panel. #
“Mediation Tip: Mirroring”
Mirroring is a negotiation technique where the move of one party is mirrored by the other party. The goal of this technique is to attempt to move the negotiations towards the middle number. This is a good technique to try early to obtain information as to where the other party might be heading. When one party notices what is going on they can start making smaller and smaller moves to send the message that the middle number is not acceptable or they can simply communicate as such. It is also good towards the end when it seems clear where the negotiations are headed and the goal is to arrive at the apparent number safely. However, it is not a productive technique if on the plaintiff’s side the demand is grossly inflated. Insisting on mirroring once it is clear the middle number is not acceptable will simply shut down the negotiations. #crossovermediation #
Mediation Tip: Bracketing
Bracketing is a mediation technique that mediators can use to get the parties a bit closer a bit faster. The technique is best used when the parties are very far apart and each side wants the other to make the big move to get things going. The idea is that the parties agree to move off their number to a closer number if the other party also agrees to a move closer. In some cases the bracket can be suggested by the mediator. However, it is best if the mediator acting as the facilitator works with the parties to come up with their own bracket. There is sometimes a concern that by agreeing to the bracket the parties are in agreement with the number centered by the bracket. Both sides should be aware that this is not always the case. #crossovermediation #
“When is the best time to mediate? Depends on the case.”
When is the best time to mediate? Depends on the case.
Small cases should be mediated early to avoid overspending on the case.
Larger cases should be mediated after discovery has been completed. In some cases, it is advisable to disclose experts early and take early expert depositions. The probability of success at mediation is always increased when both sides understand the other’s evidence.
Settlements are often determined by a reasonable assessment of risk. Assessment of risk can only be based on information. The more information provided the better the risk assessment and the more likely the case will be resolved. #crossovermediation personalinjurymediation #
“Defense Medical Exam and Mediation”
Obtaining a defense medical exam and providing the report well in advance of the mediation will increase the probability of success. Certainly, in some cases, the defense will obtain the IME late as a tactic or may feel that the value of the case doesn’t justify the expense. However, if there is a medical causation issue or disability issue the IME becomes critical. That is not to say the case can’t be settled without the IME – the idea to increase the probability of success. Let me know what you think? #crossovermediation #
Howell Specials and Mediation
Increase the probability of success at mediation by resolving disputes over the amount of Howell specials well in advance of the mediation. The parties should exchange documentation of the claimed medical specials consistent with Howell. The parties should then meet and confer to resolve any disputes regarding the amount of the Howell specials. This gives you one less thing to worry about at mediation and increases your probability of success. I suggest that the exchange should take place shortly after the mediation has been put on the calendar. Let me know what you think. #crossovermediation #
“I am now conducting informational interviews”
I am now conducting informational interviews in connection with personal injury, workers’ compensation, and crossover cases (cases involving both personal injury and workers’ compensation). The purpose of these interviews is to increase my knowledge of what makes for an effective mediation for you. These topics are best discussed outside of mediation on a specific case. Topics include but are not limited to the following:
- Mediation preparation. The pre-mediation call.
- Flat fee vs. hourly rates.
- The culture of workers’ compensation and mediation.
- The initial group caucus.
- The impact of court-ordered mediation.
- How authority is obtained. How much flexibility do parties really have?
Please message me if you are interested in participating and I will set it up. #crossovermediation #
“The Pre-Mediation Call”
The Pre-Mediation Call
Many mediators like to initiate a call with the litigants prior to the mediation. In most cases, the purpose of the call is to be sure the case is ready for mediation and find out if the litigants are in the mood to get the case resolved!
When should the call take place? In my opinion, the call should take place as soon as possible after the mediation is placed on the calendar. The early call allows time for the parties to address possible open items with enough time to make a difference.
“Mediation Success Part One”
Mediation Success – Getting all of the stakeholders involved – part one
The probability of success is increased by making sure all of the stakeholders are involved in the mediation. With the emergence of zoom mediation, this is now much more practical.
Stand-alone personal injury:
It is hard to imagine a mediation without the plaintiff, plaintiff’s counsel, and defense counsel. Yet in some cases, the claims adjustor does not attend in person. Now that many mediations are conducted via zoom there is little reason not to have the adjustor attend.
Not all plaintiffs are the sole decision-maker. In some cases, a significant other or family member has a great deal of influence on the plaintiff. It is better to involve them at the mediation so that any issues can be addressed.
Consider asking medical lien holders and medical insurance lien holders to be available on a stand-by basis.
Brandmediationservices.com #brandmediation #jonathanbrand #crossovermediation
“Mediation Success Part Two”
The Cross-over case. Cases involving both personal injury and workers’ compensation:
In addition parties discussed in part one of this post, there are additional parties needed to increase the probability of success with cross-over cases. There are potentially 4 or 5 additional players!
Workers’ Compensation Subrogation Attorney: The subro lawyer is competing with the plaintiff for money. They can be a lienholder or a party. Keep in mind that in some cases they are not comp attorneys and do not always understand the comp side of the case or get involved in the value of the comp case. Or course some are very knowledgeable and informed.
Subro Adjustor: The adjustor for subrogation and for the comp case in chief are not always the same person.
Workers’ Compensation Defense Attorney: Is a comp lawyer and understands the status of the comp cases and potential value.
Workers’ Compensation adjustor: This adjustor should know the status of the comp case and is the one with authority to resolve the comp case as part of a global settlement.
Applicant Attorney: In many cases, the injured person has an attorney for the civil and an attorney for the comp. Both need to be involved. #crossovermediation #personalinjurymediation #workerscompensationmediation
Let’s settle the case