Archive for category 1
(New York, New York)-(March 3, 2010)-Seth J. Davis has been selected for inclusion in the 2010-2011 edition of Montclair Publisher’s “Who’s Who Among Law Professionals.”
Inclusion into this registry is truly an honor bestowed upon the most distinguished professionals. After careful review of Mr. Davis’ credentials and accomplishments, the editorial staff has granted him acceptance.
Seth J. Davis is a Mediator at ADJ. Mediation Services. Within this role, he specializes in Elder Abuse, Personal Injury, Medical, Legal and Broker Malpractice, Divorce, Employment and Commercial Liability. Mr. Davis received his B.S. in Business Management from Pepperdine University and his Mediation training from the Pepperdine University School of Laww Strauss Institute for Dispute Resolution. He is a Member of the Consumer Attorney Association of Los Angeles and the Southern California Mediators Association, and he donates charitably to the National Multiple Sclerosis Society. In his spare time, Mr. Davis enjoys golf and managing both his children’s baseball teams.
Montclair Who’s Who recognizes and highlights men and women of leadership and distinction within various industries throughout the United States and Canada. Montclair has created a network of distinguished professionals with notable achievements. It is currently the fastest-growing collection of biographical registries in the World.
The discussion I posted on LinkedIN has taken on a life of its own. I strongly encourage you to take a look by using this link: LinkedIN (http://www.linkedin.com/home?trk=hb_tab_home)
There was one comment from a very well know, very well respected (NON-ATTORNEY) mediator whom most of you have probably used, and was my instructor at Pepperdine University: Lee Jay Berman.
In response to the discussion question: Should a Mediator Also Be An Attorney?, Lee Jay wrote…
Should a school teacher also be a licensed child psychologist? It might help. Shouldn’t all police officers be required to be certified as mediators? All sports writers should be former athletes. Oh, and all weather reporters should be descendants of mother nature. Shouldn’t all business consultants hold a CPA license? In fact, shouldn’t everyone have a license of some kind? Shouldn’t the government, or better yet, some self-appointed body, decide who should get to do what? And everyone without a license should be relegated to farming and manual labor.
p.s. did you ever notice that the people who are debating this at all of your mediation conferences are probably not the ones out making six figures by actually being mediators?
It’s like one of those perfect Hallmark Cards…there’s nothing else to say except Amen. Thank you Lee Jay!
Have a wonderful weekend.
Seth J. Davis, Mediator
Supreme Court to decide whether plaintiffs may recover damages for the full amount of billed medical services or only the lower amounts actually paid by health insurers.
|March 10, 2010
Howell v. Hamilton Meats & Provisions, Inc.
|The California Supreme Court has agreed to decide whether the Court of Appeal erred in holding that, under the collateral source rule, a plaintiff in a personal injury action may recover as economic damages the full amount her health care providers billed for their services even though the providers agreed to accept as payment in full much smaller amounts paid by the plaintiff’s health insurer.
The defendant’s petition for review, which was granted without limitation, asks the Supreme Court to consider not only whether the Court of Appeal misinterpreted the collateral source rule, but also whether the collateral source rule in its entirety should be abolished in California.
By: Roy Franco, Director Risk Management Strategies, Safeway, Inc.
I have a lot to share with you about the newly released User Guide and recent alerts from CMS. Before I start, I would be remiss; if I didn’t first thank Jim Price from Aon San Francisco for his thoughtful read of my draft and time he has spent with me discussing the possible ramifications of these recent publications. This is already an exceptionally dense topic; and it is going to take time to digest what happened last week and how the industry will sort out responsibilities.
As you already surmised, CMS issued further Section 111 requirements with the publication of its long awaited User Guide, version 3.0, effective 2/22/2010. Aside from the fact that User Guide is now almost seventy pages longer, than the previous version, it is already superseded in some parts by CMS alerts that have posted in the past week. Alerts dated subsequent to the currently published User Guide takes precedence. (See User Guide, ver. 3.0 at page 10). Consequently, when framing any MSP issue, read both the user guide and subsequent alerts before drawing your conclusion. No guidance is offered with regard to prior alerts that have not been incorporated into the latest user guide. For example alerts with regard to guidance on collection of social security numbers are not mentioned.
Section 1 of the User Guide is important as it provides a summary of the material changes that were made to the User Guide and can be found on pages 6 – 9. I would encourage reading through this section and also following-up with the applicable section in the Guide. The areas I found most interesting were:
· Required TPOC reporting dates begin 10/1/2010, but that earlier TPOC dates would be accepted;
· Required ORM reporting dates start if the medical responsibility existed as of 1/1/2010, but earlier ORM would be accepted;
· Where to locate the MSP Manual at www.cms.hhs.gov/manuals/downloads/msp1505c01.pdf, but only relates to chapter one. (You should also consider looking at chapters 7 and 27)
· Changes to RRE registration, which includes how to delete the RRE
· CMS definition for valid ICD-9 codes, certain ones are now excluded, and will change once per year. To locate acceptable codes go to: www.cms.hhs.gov/ICD9ProviderDiagnosticCodes/06_codes.asp, but this link may not work unless you add TopofPage# to the link;
· New rules regarding when ORM termination dates may be entered, not greater than six months form submission date;
· Accident & Health polices are to be reported like no-fault insurance; and
· Appendix H now includes the excluded ICD-9 codes that are too general for CMS reporting
Again, I would encourage all of you to read beyond the highlighted changes in Section One and review the entire User Guide in detail. The examples contained within the User Guide may prove helpful in answering questions that will no doubt arise as this law is being implemented. For example, in reading Section 11.2.5 on ICD-9-CM Codes, we now have clarity on how the RRE may go about selecting the ICD-9 diagnosis codes for reporting. Guidance is provided that the RRE may derive these codes from the claim information on file and DOES NOT have to be diagnosis codes specifically made by a provider or supplier of medical services. (See User Guide, ver. 3.0 at page 45). This information is very helpful, but keep in mind that careless identification could lead to unintended consequences for the Medicare beneficiary with regard to their future benefits.
Overall, the User Guide is what we expected it would become – larger and more complex. CMS admits there will be further updates and we can expect the User Guide to grow in size and reach. If it is not already clear, our fundamental approach to resolving claims has changed where a Medicare beneficiary is involved. There is little authority to help us navigate a settlement, award, judgment or other payment to a Medicare beneficiary and CMS publications, like the User Guide will continue to have an impact on our industry. Therefore, it makes sense to remain familiar with its contents and updates.
The importance of the preceding paragraph can be demonstrated by discussing the CMS alerts that were issued last week, concurrent with the Town Hall Conference Call. These alerts take precedence over the User Guide because their effective date (2/24/2010) is subsequent to the effective date of the User Guide. The alert that has drawn the most attention of the industry deals with Who Must Report and replaces in its entirety Section 7.1 of the User Guide. The change will require every Plan to re-evaluate whether they are an “applicable plan” subject to electronic reporting under Section 111. In some cases, it may result in the deletion of RRE registration completed by certain Plans.
Insurance with deductibles have caused the most angst with regard to RRE identification and registration. In the past, CMS adopted a “follow the funds” approach with regard to payment to the Medicare beneficiary to determine if the Plan was also an “applicable plan” and therefore a RRE for electronic reporting purposes. Thus, if an insured made direct payment of its deductible to a Medicare beneficiary, it was under the old rules a RRE for its payment. If the insurance carrier made a payment over that deductible, the insurance carrier would have a separate reporting responsibility for its portion. The rule was different if the carrier made the entire payment to the Medicare beneficiary and was reimbursed the deductible by the insured. In that case, only the carrier was the RRE and the insured had no electronic reporting responsibility.
The new alert no longer adopts the “follow the funds” approach at least with regard to the primary layer. Now, irrespective of who pays the deductible, the insurance carrier is always the RRE, EXCEPT where the insurance policy is a fronting policy or where the insured chooses to resolve a claim without “informing its insurer”. Different RRE rules apply for policies/risk transfer programs in excess of primary coverages – more on that later. What’s important to understand is the fundamental shift in CMS policy has occurred as to who is a RRE for the primary layer, and it appears to be laid at the feet of the insurance industry.
What’s interesting about this alert is that CMS has already noted that it will issue a revised alert to clear-up inconsistencies between pages 4 and 12 about its intent to have the insurance industry be the RRE as noted above. The amended alert is expected in the very near future, but the actual date of release is unclear. I suspect that CMS may still consider comments and to the extent that any of you have something to say about who should be the RRE, I urge you to send it in to the CMS mailbox (email@example.com) as soon as practical.
Here is what CMS said with regard to deductible policies that in my interpretation apply to the first layer of coverage.
“Where an entity engages in a business, trade, or profession, deductible amounts are self-insurance for MSP purposes. However, where the self-insurance in question is a deductible, and the insurer is responsible for Section 111 reporting with respect to the policy, it is responsible for reporting both the deductible and any amount in excess of the deductible. The deductible is not reported as “self-insurance”; it is reported under the applicable policy number. The total of both the deductible and any amount in excess of the deductible is reported. (Please note that government entities are considered to be entities engaged in a business.)”
It then went on to say the following:
“If an insured entity engages in a business, trade, or profession and acts without recourse to its insurance, it is responsible for Section 111 reporting with respect to those actions. For example: A claim is made against Company X which has insurance through Insurer Y. Company X settles the claim without informing its insurer. Company X is responsible for Section 111 reporting for the claim regardless of whether or not the settlement amount is within the deductible or in excess of the deductible.” (Emphasis Added)
Commentaries I have with regard to these passages within the alert are:
1. What does CMS means when it employs the phrase, “without recourse to its insurance” to identify an exception where the insured that pays its deductible is the RRE? Is it meant to foreclose the insured from other protections afforded under the policy, i.e., payment for defense, etc.? This is really key. In self-directed, self-administered insurance programs, insurance companies generally only require notification of the ‘nine deadly sins” or if a claim reserve threshold has been met (usually a function of the level of the deductible). Further, the insured generally pays these claims and the carrier will not know that a claim has settled until after the fact; and then usually on a periodic basis. Under such circumstances, one can see the difficulties that carriers will have in reporting these claims to Medicare.
2. I also find the phrase “without informing its insurer” interesting. What happens if the insured did not notify its insured before settlement, but in the usual custom and practice transmits data to the carrier after? Is the RRE the insurance carrier or the insured that settled “without informing its insurer”? Did CMS intend to mean that the insured is the RRE where it settles, but does not notify its insurance carrier before it has obligated itself to the terms of the settlement or does it really mean that any time the settlement is communicated to the carrier, irrespective of whether the RRE entered into it without the carrier’s knowledge that the insurance company is the RRE? This is an important distinction as a number of data transfers occur back and forth between the insurance company and the insured and at some point they will have been “informed” of the settlement. Furthermore, the timing of the data transfer under such scenarios may present some major logistical impediments for insurance companies’ ability to report timely to within their designated Medicare quarterly reporting window.
3. Does the new RRE definition imply into every policy the 10th deadly sin for reporting to the insurance company claims resolved below the deductible that will now include a trigger for where the Claimant is a Medicare beneficiary?
4. Where the insured self directs its claims (usually within the deductible), does the new RRE definition impacts who will be responsible for general MSP compliance? Will it be the insured whose funds are used to resolve the claim and therefore is defined as a Primary Plan for MSP purposes under 42 USC §1395y(b)(2) or is it now the insurance carrier that reports the information under Section 111? There appears to be a split of responsibility with regard to MSP compliance and it would appear that the insurance carrier may have to dictate general MSP compliance processes to ensure proper electronic reporting. How this will work out between the insurance carrier and its insured remains to be seen. For those that may think this is not an issue, consider the following example: Insured settles case with Medicare beneficiary within the deductible and informs its insurance company. Insured requires as part of settlement that Medicare beneficiary and its attorney be responsible for Medicare conditional payments and closes file. Insurance carrier reports as RRE and the conditional payments go unresolved. Who will get the letters from the MSPRC demanding conditional payment? Will it be the insured that has left it up to the plaintiff attorney to handle the conditional payment or will it be the insurance company that has reported the settlement? Who will get the MSPRC intent letter to refer to the Department of Treasury? I suspect the entity in the Medicare databases will have to deal with these notices and the ramifications thereof. It will take time to sort these issues out and more likely than not, litigation may result between the insured and its insurer to resolve who has what responsibilities.
The alert also creates an interesting situation for coverages or risk transfer programs that are in excess of the primary layer. For those situations, it appears that CMS has retained the “follow the money” concept and if the insured pays the Medicare beneficiary directly and is later reimbursed, it is the RRE. If it doesn’t pay the money directly, it is not the RRE.
In light of the way CMS has defined coverages or risk transfer programs in excess of the primary layer, everyone will need to pause and re-evaluate its present RRE status. The initial reaction to the alert was a wholesale deletion of RREs. However, given how your program is structured you may still be an RRE; and it is something that will need to re-evaluate every year as coverages and programs renew or evolve into more sophisticated risk transfer vehicles.
Of course the alert did not stop there and there are other interesting points worthy of noting for your further consideration on how it may impact your program:
· Has the right entity within your organization registered as the RRE? It appears that the parent is the only entity that can cover all of its subsidiaries; however a subsidiary cannot cover a sibling.
· Did you register your captive as the RRE? Not allowed, the parent should register. Nonetheless, what if the captive is a licensed and functioning carrier selling personal lines to insureds outside of the parent, for example, where automobile coverage is provided to the parent’s employees? This question is not addressed and at the moment only the parent company can register? However, what is the impact of limited liability of the corporation if this responsibility is undertaken?
· Bankruptcy does not stay obligation to report settlements, judgments, awards or other payments
· Liquidation, the entity is the RRE to the extent assets are used for settlements, awards, judgments or other payments; however, if the payment is funded by another entity, then the other entity is the RRE (again, follow the money concept)
· Multiple defendants, where one defendant makes the payment and other defendants reimburse paying defendant, each defendant is required to report their portion
· Joint and several liability, each defendant is required to report the entire amount of the settlement, not only their contribution.
· Foreign entities, Foreign countries, Native American Tribes, Alaskan Tribes, are subject to the reporting responsibilities.
· Self insurance pools must meet three tests to be the RRE:
· Self insured pool is a legal entity
· Self insured pool has full legal authority to resolve and pay claims using pool funds; and
· The individual members have no review or approval authority
· EXCEPTION: The above test is not necessary where the STATUTE authorizing the pool stipulates that the pool will be licensed and regulated in the same manner as liability insurance
· Subrogation recoveries do not trigger reporting responsibility. The original reporting stands.
There is a lot here and I regret the length of this note. The alerts and user guide will no doubt cause further discussion amongst the industry. No easy answers exist, we will all have to work together to resolve. I encourage all of you to consider joining the Medicare Advocacy Recovery Coalition. We can improve this process, but it will require us to speak with one voice. For more information about the coalition, please visit the website, www.marccoaliton.com.
Thank you for your continued support!
Roy A. Franco
Director Risk Management Strategies
11555 Dublin Canyon Road
Pleasanton, CA 94588
C: (925) 216-5727
F: (925) 226-5990
Only portions of this article have been reproduced. The complete article can be found at www.mediate.com.
Printed with permission of the author, Cris Currie and mediate.com.
The views and opinions contained in this article do not necessarily reflect those of ADJ. Mediation Services. This article has been prepared for informational purposes only and is not legal advice.
Should A Mediator Also Be An Attorney?
by Cris Currie
Among the more hotly debated issues concerning appropriate qualifications for mediator is the question as to whether it is preferable for mediators to also be lawyers.
In many states, a law degree is a prerequisite for being listed as a court approved mediator. While most jurisdictions permit disputants to choose any mediator, non-attorney mediators are not always considered by court referred disputants. This is because, for most people, it is just easier to pick a name from the court approved list than to do their own research.
The rationale for requiring a law degree and legal experience rests on two assumptions. First, it is assumed that mediation is a natural extension of legal training and that it is a skill readily acquired by attorneys. The second is that because most disputes involve complex legal matters, legal experience is necessary to bring these matters to a satisfactory conclusion and guarantee justice, especially in cases where one or more parties are unrepresented. Because attorneys are the traditional gatekeepers of the justice system, it is important to examine these assumptions closely.
In 1989, the Society of Professional in Dispute Resolution’s (SPIDR) Commission on Qualifications issues a report with the following recommendation: Knowledge acquired in obtaining various degrees can be useful in the practice of dispute resolution. At this time and for the foreseeable future, however, no such degree in itself ensures competence as a neutral. Furthermore, acquiring a degree would foreclose alternative avenues of demonstrating dispute resolution competence. Consequently, no degree should be considered a prerequisite for service as a neutral.
In other words, mediation is not a natural extension of the practice of law, because mediation permits a broader definition of conflict as well as a more complete approach to its resolution. Because attorneys are schooled in, and acculturated to, the adversarial approach, it is very difficult (but certainly not impossible) for them to be equally accomplished in a more collaborative approach to settling disputes. There is no evidence to suggest that simply because a conflict may involve issues of law, that legal skills are more relevant to facilitating its resolution that human relations and negotiation skills.
The second assumption used to justify requiring a law degree for mediation is that attorney-mediators can assure justice because of their knowledge of the legal system and the law. This assumption is faulty because it is nearly impossible to render advice without favoring one party or the other.
Thus, it is unethical for mediators to give legal advice in mediation. If parties need legal or any other kind of advice, they are expected to obtain it outside of mediation. However, having a legal background can be advantageous in many mediation situations. The more familiar the mediator is with the legal precedent and procedures specific to the case, the easier it will be for the mediator to help troubleshoot proposed agreements and help parties understand their legal options and responsibilities. Offering disputants this kind of legal information can be quite helpful, but it should also be remembered that it is not necessary to be an attorney to provide legal information. One should also remember that being an information provider is only a small part of what mediators do.
What is most important that mediators, attorney or non-attorney, should not attempt to mediate disputes involving legal issues without some understanding of the legal context surrounding that dispute. How much substantive knowledge a mediator needs is difficult to specify. Complete ignorance of the legal context might cause disputants to unknowingly enter into agreements, which a court might consider inappropriate or illegal. At the other extreme, too much substantive expertise can put the mediator’s neutrality at risk by biasing them toward standard solutions and diverting their attention from underlying interests and needs. However, if the parties desire a case evaluation or a prediction as to how a court would rule on a particular issue, then the neutral would need a high degree of substantive knowledge and would probably need to be an attorney. Whether mediation is the appropriate forum for such case evaluation and prediction is also a hotly debated topic.
In mediation, parties have the opportunity to get beyond the confines of law, but their ability to do so depends largely upon the mediator’s understanding of and approach to conflict. While there may be certain advantages to having a legal background, there may also be some disadvantages, which should be kept in mind when choosing a mediator for your case.
$12.5 million verdict by Chatsworth jury for 2007 assault at Oakdale Heights facility in Santa Clarita, California.
VALENCIA, Calif., March 4 /PRNewswire/ — Following a five-week trial, a jury in the Superior Court of the State of California, County of Los Angeles, awarded 94-year old Sophie Schwartz $12.5 million ($6 million in general damages and $6.5 million in punitive damages) on March 1, 2010 against Jose Vazquez and Oakdale Heights Management Corporation for the 2007 sexual assault committed while Schwartz resided at Oakdale Heights of Santa Clarita in Santa Clarita, California. The Honorable Judge Melvin D. Sandvig presided.
“This was a very emotional trial on many different levels,” stated Gregory Owen of Santa Clarita-based personal injury law firm Owen, Patterson & Owen who, along with wife and partner Susan Owen, represented Schwartz. “The jury sent a loud message to elder care providers who choose profit over people and ignore laws designed to protect our community’s most vulnerable members. This type of conduct will not be tolerated.”
The judgment represents one of the largest verdicts ever awarded for emotional trauma without evidence of physical injury. Schwartz, who suffers from dementia, was sexually assaulted in her room on December 16, 2007, by Vazquez, an illegal immigrant hired by Oakdale Heights Management Corporation as a dietary aid at the Oakdale Heights of Santa Clarita facility in April 2006. Vazquez was convicted in 2008 in a plea deal for attempted rape and is currently serving an eight-year sentence.
The jury found that the defendant corporation purposefully falsified employment documents at the time of Vazquez’s hiring and violated several California laws governing the care of dementia residents. Cost cutting measures, understaffing, and negligent hiring practices and supervision contributed to the elder neglect.
Vazquez had a master key allowing him access to every resident’s room despite the absence of a valid background check and no training for dealing with the elderly residents.
One of the corporate defendants is currently ranked the 28th largest operator of elder home facilities in the nation.
© 2010 The Daily Journal Corporation. All rights reserved.
January 15, 2010
WHO TOOK THE ‘ME’ OUT OF MEDIATION?
By Deborah Rothman
A recent article by Daily Journal staff writer Laura Ernde quoted Thomas J. Stipanowich, professor at Pepperdine University School of Law and academic director of the Straus Institute for Dispute Resolution as saying, “Although arbitration was set up as an alternative to the expensive and time-consuming process of going to court, lawyers have started bringing the same litigation tactics to the arbitration process, creating higher cost and delay.”
“Litigization” – a term coined by my colleague Gerry Phillips – is beginning to have an equally negative impact on the mediation process, though in the opposite way. While mediation has the potential to be a successful, cost-effective and occasionally transformative process for the participants, the dual trends toward streamlining and spinning have created unfortunate unintended consequences, including less client satisfaction and lower settlement rates.
Having been a full-time mediator and arbitrator since 1991, I have witnessed the substantial trajectory of mediation’s development from the time a handful of us presented lunchtime mediation trainings to groups of trial judges. At the time, mediation was still such a new concept that in some meetings we literally had to explain the difference between mediation and arbitration, and for years afterwards many attorneys and judges still used the terms interchangeably.
Even when the differences were firmly understood, it took years of Bar and other CLE presentations to persuade litigators that being the first to propose mediation of an expensive, disruptive lawsuit did not constitute a sign of weakness. Eventually the Legislature passed pilot legislation authorizing judges to order smaller cases into mediation, lawyers routinely recommended mediation to their clients and clients embraced mediation as a way to end the bloodshed and financial drain of litigation.
Those were, in retrospect, the halcyon days of mediation. Attorneys were pleased with the accolades they got from their clients for encouraging – perhaps contrary to their pecuniary interest – clients to engage in mediation and to compromise rather than continue to pursue litigation; the parties were delighted with their ability to participate in shaping the resolution of their costly disputes; and mediators began to think of themselves not just as “recovering litigators,” but as “peacemakers.”
With the proliferation of mediation, mediators began to specialize not just in the art of the mediation process, but in specific areas of law. At the same time, a sufficient knowledge bas existed that attorneys could call on their firms’ or their associations’ members to get invaluable feedback about the strengths and weaknesses of prospective mediators.
Perhaps unsurprisingly, the success of mediation contained the seeds of its undoing. Some litigators began to look for ways to gain a competitive edge in mediation. (That oxymoron should have been a tip-off.) Thus began the era of “spinning” the mediator. It began with innocent-sounding statements like “My client will not take less than $100,000,” which later in the mediation turned out not to be the bottom line at all, and jibes, like, “Come on, don’t let us down, you wouldn’t want to ruin your stats,” as if mediators were solely responsible for the success of the mediation. Occasionally an attorney would ask a mediator to outright lie to opposing counsel for the purpose of gaining an advantage.
Mediators were not blameless. Attorneys and judges, seeing how much satisfaction – and remuneration – mediators found in their work, began to enter the ranks of the profession in seemingly ever-increasing numbers. When the market eventually became over-saturated, some mediators’ efforts to distinguish themselves from the pack resulted in over-the-top conduct, such as publishing articles that outlined method by which an attorney could “manipulate” the other side in mediation, and boasting settlement rates that approached 100 percent.
Having participated in numerous mediations, and often having taken mediation training themselves, attorneys in mediation naturally tried to shape the process, hoping to gain an edge. They began comparing this week’s mediation to last week’s, complaining to Mediator A that he or she had not elicited an offer of money at a time in the day when at Mediator B’s mediation last week, there was an ‘x’ amount of money on the table. The message was clear: mediators’ success could be measured by so simple a yardstick as the number of dollars on the table by a certain time of day, as well as at the end of the mediation, regardless of the differences in parties, issues, cross-complaints and opposing counsel. Some mediators learned to be double agents, leading each side to believe that they were getting a slight edge over the other side.
Many attorneys tried to streamline the process, or cut to the chase, hoping to make the mediation more efficient for their clients. It is a canon of mediation practice that “the right number at the wrong time is the wrong number.” Perhaps some attorneys wee suspicious about the motives of a mediator who charged by the hour. Thus began the era of “no joint sessions.” Although the importance of joint sessions is stressed at mediation trainings, mediators suddenly scurried around to find ways to successfully mediate cases while still accommodating litigators’ demands that the mediation consist solely of caucuses.
To be fair, some attorneys’ insistence on the elimination of joint sessions was born partially out of a desire to shave time off the mediation process and thus to save the parties attorney’s fees And while other attorneys justified this request in terms of not wanting to give the other party free discovery, or not having prepared their client to speak in the presence of opposing counsel, some had more cynical motives. They had discovered over time that when joint sessions occurred and the attorneys allowed the mediator to shape the process, mediators were sometimes able to get the parties to talk about their respective feelings of betrayal, hurt and embarrassment, and occasionally to acknowledge the pain the dispute had caused to each others’ families. Although “kumbaya” was rarely sung, the catharsis that sometimes resulted from these joint sessions was powerful. Plaintiffs lost their desire for revenge when they reconnected with their litigation adversaries in a neutral and supportive environment. After reminiscing about the pre-dispute days when their families were friendly and their business relationship was mutually gratifying, defendants lost their desire to bloody their former enemies.
From some attorneys’ perspective, this was the problem with joint sessions – they undermined the preparatory work the attorneys had done with their clients to get them the best possible deal. Many a plaintiff’s lawyer told his or her client, “The mediator will tell you that the other side would like to apologize to you, but don’t fall for it – they’re just trying to get you to accept less money.” That kind of thinking reminds me of a scene in the motion picture “Invictus,” in which the captain of the rugby team rebuffs his girlfriend’s advances the night before a championship game, saying, “No, I have to be angry for the game.”
This focus solely on legal issues, the distribution of money and a maximally efficient process deprives the mediator of a host of tools by which the dispute could be resolved to the parties’ mutual satisfaction and produces unintended consequences, especially for what Riskin and Welsh refer to as “one-shot players” who, unlike attorneys and certain corporate parties who are “repeat players,” would greatly benefit from a more customized mediation process that addresses their particular interests and values. Riskin, Leonard L. and Welsh, Nancy,” Is That All There Is? ‘The Problem’ in Court-Oriented Mediation” George Mason Law Review, Vol. 15, 2008. And unlike the rugby captain in “Invictus,” one-shot players who are deprived of the closure that mediation can offer are not likely to get a second opportunity.
By trying to keep emotion out of the settlement process and depriving their own clients of an opportunity that time an again has proven more important to the disputing parties than cash, attorney are also inadvertently sabotaging the chances of settlement. In a fascinating study brought to my attention by my colleague Phyllis Pollack, the President of SCMA, Jonah Lehrer in “How We Decide,” Houghton Mifflin Harcourt 2009, shows that people actually need to experience emotion in order to make decisions, and argues that good and satisfying decisions require the use of both the rational and the emotional parts of the brain. Perhaps attorneys’ success rate at keeping the negotiation focused on the bottom line helps account for the declining rate of mediation settlements.