Pretty much everyone knows the bible story about King Solomon. Two women claimed they were the mother of an infant after a different child had died. Solomon ordered the baby to be split in half and divided between them. One woman agreed; the other would rather abandon her claim. Solomon then knew that the one who put the baby’s welfare ahead of her own interests was the true mother.
Splitting the Baby
Attorneys and claim professionals complain about judges who decide cases where it appears the result does nothing more than equally divide the difference between the parties’ positions. …
A national chairman of a major political party once said that they would bring their message to the people in a variety of ways. He was most gleeful about using door hanger advertising. Multiple legal prohibitions make this a really bad idea.
A Bit of Background
You would have to be a hermit not to know about door hangers, also known as handbills, but here’s a quick description. A company wants to get its message in consumer’s hands. Other options are too expensive or unfocused. So the company decides to print their message on lightweight cardboard, typically about five-by-12 inches…
You may have heard the abbreviation RTFM. As soon as everyday consumers started using computers, telephone customer support staff had to field daily questions about the most basic functions. Perhaps the most infamous is about the user who insisted that a floppy disk drive (remember those?) was a cup-holder. What the tech people wanted to yell was, “READ THE F-ING MANUAL!”
Read the Mediation Instructions
I send instructions to participants in every one of my mediations. Over time, these instructions have gotten so specific that they even include directions on what topics to include in the mediation brief.
We’ve heard a lot about quid pro quo lately. But it’s not necessarily a bad thing.
Quid pro quo is Latin for “this for that.” This is what negotiation is all about. In fact, the exchange of something of value, legally termed “consideration”, is a requirement for a contract to be valid. Settlement agreements are contracts.
A good negotiator always seeks quid pro quo. Don’t give away something unless you get something in return. In mediation, parties take turns lowering demands and increasing offers until we reach settlement.
The exception to this rule is if you were legally obligated to…
The #1 predictor of mediation success is whether the participants have come with a seriousness of purpose. They understand that mediation is their best chance to avoid delay and expense, not to mention a bad result. They have readied themselves to settle the case.
Why Are You Here?
Sure, the court may have ordered the parties to mediation. Look at this as a blessing. You might have struggled to get your opponent to the negotiating table. Now the court has done this for you. Moreover, instead of having to deal with insincere posturing, the mediator can filter communications to get to…
You’re ready for your remote video mediation. Everyone has the latest version of the technology and knows how to join. You rehearsed with your client; maybe you did a practice session with the mediator. You submitted the mediation confidentiality form and contact form. Now you can concentrate on the facts and the law.
Wait-What about the Interpreter?
At the beginning of every remote mediation, I confirm that everyone present has signed off on the confidentiality agreement. Yet, sometimes, against all the rules, someone else is there. Often, it’s a family member who is “just there to interpret.”
It’s inconvenient, but…
IT MAY NOT BE FROM ANOTHER COUNTRY — BUT WHAT THEY’RE SAYING ISN’T EXACTLY ENGLISH
You may think all the mediation participants will be speaking English, but you have failed to realize that at least some of the litigation professionals are speaking a foreign language. The most common foreign language used in mediation is Lawyer, and Adjuster is also common. In some mediations, everyone except the claimant is speaking Insurance, but no one has thought to provide a translation.
While the professionals in the room are speaking one of these languages, the clients are often mystified, simply trusting that their…
Do you have trouble falling asleep? You’re not alone.
Experts advise “clearing your mind.” Like it’s easy to simply let go of the stresses of the day. Right.
There are lots of story and song references to counting sheep. The idea is to imagine sheep jumping over a fence and count each one to the exclusion of all other thoughts until you fall asleep. Never worked for me.
If you’ve had anesthesia in a hospital, the anesthesiologist may tell you to count backwards from 1,000 until you fall asleep. Not sure why they do this. Of course you’re going to…
Ethics are the moral principles that govern behavior. Every workers compensation professional has ethical rules to follow. For attorneys, these are spelled out in Codes of Professional Responsibility, statutes and sometimes case law. Despite some differences among the states, the basic principles governing settlement ethics are mostly the same
Duty to Communicate to the Client
Lawyers must keep clients reasonably informed about significant developments ( CA Rule of Professional Conduct 3–500). CA Rule 3–510 tells lawyers to promptly communicate the specifics of a written settlement offer. In other words, a California lawyer need only pass along a verbal settlement offer…