alternative dispute resolution in workers compensation: mediation and arbitration

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

TSnyder@WCMediator.com

No charge to start the discussion!