Review of features and benefits of mediation and arbitration for Workers Compensation professionals

1. ALTERNATIVE DISPUTE RESOLUTION
NATIONAL WEBINAR
June 17, 2014
(c) Teddy Snyder 2014

2. 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.

3. 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

5. AND THEN THERE’S LONGSHORE

6. AND DEFENSE BASE ACT

7. ARBITRATION
MEDIATION

8. ALTERNATIVE DISPUTE CHOICES
ALTERNATIVE TO WHAT?

9. AT PUBLIC OR PRIVATE FACILITY
MAY BE PUBLICLY OR PRIVATELY FUNDED

10. USUALLY BY AGREEMENT
CARVE-OUTS

11. WHAT IS ARBITRATION?
PRIVATE
SUBSTITUTE FOR
COURT PROCEEDING
CONDUCTED BY A NEUTRAL
WHICH RESULTS IN A RULING

12. RULES
WHEN TO ARBITRATE
WHO CAN BE ARBITRATOR
WHAT ISSUES TO ARBITRATE
HOW TO INTRODUCE EVIDENCE
HOW TO ENFORCE AWARD

13. ARBITRATION
DEFINITIVE RULING
CAN BE BINDING
No right of appeal
OR
NON-BINDING
Can Request Trial De Novo

14. ADVANTAGES OF ARBITRATION
FASTER THAN A COURT PROCEEDING
Start Date/Continuity of Proceedings
Speed Saves Money
CAN CHOOSE THE ARBITRATOR
Fairness Issues

15. WHAT IS MEDIATION?
A voluntary meeting where a neutral person,
the mediator chosen by the parties,
helps the parties communicate to resolve their disputes

16. WHAT IS MEDIATION?
Mediation is facilitated negotiation

17. WHY DO YOU NEED IT?
Most likely, your attorney is a gladiator,
not a settlement expert

18. MEDIATION
Get a Settlement
Not a hearing-no rules
Any Issue
No admission of evidence
Not Binding

19. WHO’S USING MEDIATION?
MORE THAN A DOZEN STATES HAVE
WORKERS COMPENSATION MEDIATION PROGRAMS
Alabama (ombudsperson)
Florida
Georgia
Indiana (ombudsperson)
Louisiana
Michigan
Mississippi
Montana
North Carolina
Ohio
Oregon
Pennsylvania
South Carolina
West Virginia

20. WHO’S USING MEDIATION?
STILL PRETTY NEW IN CA
HARDLY USED IN NY

21. MANDATORY MEDIATION
CHANGES
HOW CLAIMS ARE LITIGATED
LITIGATION IS GEARED TOWARD SETTLEMENT

22. WHY WOULD AN EMPLOYER CLOSE CLAIMS?
• UNCERTAINTY OF OUTCOME
• “STOP THE BLEED”
• INFLATION RISK
• MORTALITY RISK
• CLOSE RESERVE
• RECOVER BONDING EXPENSE
• COST OF ADMINISTRATION

23. WHY WOULD AN APPLICANT CLOSE A CLAIM?
• UNCERTAINTY OF OUTCOME
• CONTROL OF MEDICAL TREATMENT
• NEED FOR CASH
• GET ON WITH LIFE
• LEAVE AN ESTATE

24. WE DON’T WANT TO SHOW OUR HAND

25. CONFIDENTIALITY
EVIDENCE CREATED SOLELY FOR MEDIATION
IS NOT ADMISSIBLE
MEDIATOR CANNOT BE SUBPOENAED

26. WHEN TO CONSIDER MEDIATION?
CLAIMS WHERE THE PARTIES ARE CONSIDERING
A COMPLETE SETTLEMENT
CLAIMS WHERE THE APPLICANT
HAS REACHED
MAXIMUM MEDICAL IMPROVEMENT
IMMINENT TRIAL

27. 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 status
Get a neutral view- preserve attorney-client relationship
COMPLEX CLAIMS

28. 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

29. EARLIER IS BETTER THAN LATER
PARTIAL RESOLUTION IS BETTER THAN NO
RESOLUTION

30. WHEN?
THE PARTIES CHOOSE THE TIME, DATE, AND
DURATION OF THE MEDIATION
No waiting for court calendars
No frustration with too little time to air the issues
No wasted Court appearances
You can mediate pending appeal or reconsideration

31. PRELIMINARIES
AGREEMENT TO MEDIATE
Financial Arrangements
ACKNOWLEDGEMENT OF CONFIDENTIALITY

32. WHO SHOULD BE IN THE MEETING?
The decision-makers, their representatives,
other necessary experts or support persons

33. WHAT ISSUES CAN BE RESOLVED?
VALUATION
MEDICAL TREATMENT
RETURN TO WORK

34. WHAT ISSUES CAN BE RESOLVED?
THIRD PARTY CLAIMS
PAST DUE BENEFITS
LIENS
YOU NAME IT

35. DEFINING THE ISSUES
PRE-MEDIATION
PARTIES’ BRIEFS
OPENING SESSION
THROUGHOUT THE MEDIATION

36. HOW DOES IT WORK?
PRE-MEDIATION COMMUNICATION
USUALLY, THERE IS AN OPENING SESSION
SPLIT INTO CAUCUSES, SEPARATE ROOMS
Confidentiality, Candor
SHUTTLE DIPLOMACY
Mediator can shape the conversation, be the best person to
deliver bad news
MAY RE-CONVENE FOR e.g., CLARIFICATION, BRAINSTORMING

37. MEDIATOR’S PROPOSAL

38. WHO MAKES THE DECISIONS?
THE PARTIES

39. STUDIES SHOW PARTIES ARE MORE SATISFIED
WITH A MEDIATED RESULT THAN A COURT RULING

40. WHAT HAPPENS NEXT?
MEMORANDUM OF UNDERSTANDING
STIPULATION
COMPROMISE &RELEASE
COURT APPROVAL AS NECESSARY
MEDIATOR MAY FOLLOW UP WITH PARTIES IF
FURTHER DIALOGUE MAY BE HELPFUL
WHAT IS SUCCESS?

41. MED/ARB
ARB/MED

42. KEY TO A SUCCESSFUL ADR
PREPARATION

43. TEDDY SNYDER
WCMediator.com
310/889-8165
TSnyder@WCMediator.com
No charge to start the discussion!