NAM PERSPECTIVE

December, 2016

REVISITING MEDIATION: KEY COMPONENTS TO SUCCESS

By: Susan Hernandez, Esq.

Susan Hernandez, Esq. Most trial lawyers and insurance company adjusters are “old pros” when it comes to mediating a personal injury case. But, if old dogs can learn something new, then re-thinking the mediation of personal injury cases may prove helpful.

Let’s assume the following fact pattern:

A worker was injured in a fall while descending from a 12-foot-high sidewalk bridge erected around a construction/renovation site. He suffered herniated lumbar discs, a shoulder injury, and a concussion or traumatic brain injury. He was 59 years old at the time of the accident, and is 62 at the time of the mediation. All discovery is (supposedly) complete, including depositions and medical exchanges, but summary judgment motions were not made before proceeding with mediation. The defendants include the property owner, a lessee, the construction manager/general contractor, and the impleaded employer of the injured worker. The parties have expended considerable sums in the discovery process. However, the interminable delay that it takes for cases to reach the courts, along with the realization that expert witnesses will be called to testify at trial, will in fact cause further expense. These considerations, along with the now routine appeal process after a verdict has been rendered, have prompted both the injured plaintiff and the coterie of insurance companies to the mediation table.

This is a routine repeated daily and seemingly poses nothing new for those experienced with the process. Yet, from the mediator’s point of view, those who truly desire the most from mediation should look for a fresh approach to ensure success. After all, the parties are paying for the mediation and, ostensibly, are engaging in the process to get results sooner than later, and without the stress and expense of a trial in the uncertain future.

Preparation

The “revisit” of mediation rightfully begins here. From the mediator’s point of view, the most important part of the mediation should occur before the mediator meets the parties. Just as with an impending trial, the mediation participants must prepare their presentations with an eye not only for their own positions, but also with an understanding of what the opposing side will likely present.

All too often, the mediator’s first impression of the contested matter is the receipt of voluminous records entitled with the oxymoronic label of “brief”. These briefs can include complete depositions, complete medical and hospital records, positions on the applicable laws, photos, among other proofs. These submissions are sometimes exchanged with the other side. Whether or not an exchange occurs, it is suggested here that this “revisit” should encourage both sides to really be brief, in the sense that what is provided to the mediator should include only the salient parts of the case: the necessary parts of the depositions (not the pages with questions about present and prior residences, prior work history, etc.); the applicable law (if necessary); the real injuries (minus the fluff and fillers usually found in bills of particulars and defendant’s medical exams, and with a truthful exposition of prior injuries); and the demands and negotiations prior to the mediation. In so doing, the parties will have really prepared the case for mediation, will have a full grasp of the pros and cons of their positions and will be ready for a real mediation. It should not be necessary for the mediator to cull through what appears to be the entire case file of the parties in order to get a handle on the case.

If the case is properly prepared for the mediation, the important points of each side will be succinctly presented in the brief, with the necessary documentation as part of the brief. Proper preparation requires knowing what is important and what is merely filler.

It is surprising to learn that, frequently, the parties do not discuss the case beforehand. Many times, the parties may have questions about unresolved issues of coverage or the amounts of coverage available, or have not even exchanged demands or the parameters of a possible settlement. Often, the injured plaintiff has not been consulted about settlement ranges, the payment of liens or the necessity for a Medicare set-aside. It is suggested here that the plaintiff’s attorney should/must have a conversation with the plaintiff about settlement ranges acceptable to the plaintiff and the defense lawyers should have the same type of conversation with the adjusters. Each side must discuss the risk factors of their cases, including the perceived strengths and weaknesses.

Presentation

The mediator will most likely assess the parties appearing at the mediation and decide whether a joint opening session should be conducted. It is often helpful for each side to hear the other side’s points of views about liability and injuries in this joint session. However, it is never helpful to engage in threatening discourse, to overly exaggerate the strength or weaknesses of the positions of each side, or to pontificate and dominate the presentations made in this session. Communication is expected, but it should be respectful and without anger. Since listening is essential to communication, the mediator conducting the joint session will listen to both sides and, it is hoped, each side will listen to the other.

After this joint session, private caucuses will be conducted by the mediator. It is during these private sessions that the mediator will get a sense of where the case is headed and whether the mediation will end in a successful disposition.

Applying the Facts to Law

The lack of a summary judgment finding in favor of the plaintiff does not necessarily mean that the defense position is enhanced or that the plaintiff will be willing to dispose of the case at less than fair value. In the case above, suppose the plaintiff fell because he decided to climb down using a nearby tree as his “ladder.” The defense will most assuredly claim that the plaintiff had a ladder available for his use. As such, he was the sole cause of his accident and §240(1) does not apply. While this seems like a fairly decent defense that should pressure the plaintiff to compromise his case for a relatively modest sum, preparation and knowledge of the case law may prove otherwise. While there may have been a ladder somewhere on the job, was it readily available? Did the plaintiff know where it was or that he was expected to use it? If the parties had prepared as if a summary judgment motion was being made, they would have become aware that case law did not necessarily favor the defense position.

Reviewing the relevant case law would reveal the steps the defense must navigate to prove the claim of “sole cause,” which, in our case, is really the defense of a recalcitrant worker. In this regard, the parties would surely familiarize themselves with cases like Auriemma v. Biltmore Theatre, LLC, 82 AD3d 1 (1st Dept. 2011), Torres v. Our Townhouse, LLC, 91 AD3d 549 (1st Dept. 2012) and Gallagher v. New York Post, 14 NY3d 83 (2010), among a host of others with similar fact patterns. After such a review of the case law, both parties would be better able to appreciate each other’s positions and the mediator would be in a better position to bring them closer together on the issue of liability.

It may be that the owner, under the facts above, has leased the premises to another, and it is this lessee who had contracted with the construction manager/general contractor who, in turn, hired the plaintiff’s employer. However, the construction manager/general contractor does not have an ironclad indemnification agreement in its contract with the employer and neither does the owner have one with the lessee. Here, it is advisable that both sides be familiar with cases such as Gordon v. Eastern Railway Supply, Inc., 82 NY2d 555 (1993) and Kane v. Coundorous, 239 AD2d 309 (1st Dept. 2002), and their progeny.

Once a consensus of sorts on liability can be reached, the parties can address the medical issues. In the preparation phase, it is incumbent on the parties to be familiar with all outstanding liens, especially the workers’ compensation lien that may be rather large in our case above. In this regard, the age of the plaintiff is important because at 62, the attorney now has to be aware of Medicare and the “set-aside” sum that may come into play for future medical expenses. Work should be done well before the mediation to ascertain whether a section 32 settlement was made with the plaintiff (in which case, Medicare may well come into play), or whether the medical portion of compensation is still in play (which may well obviate a Medicare set-aside). Has the plaintiff collected social security disability? This may make Medicare an issue regardless of age. If the compensation lien is paid out of the settlement funds, no matter how long compensation gets for its corresponding “holiday”, a set-aside may not be necessary. However, none of these questions should be left to chance. Proper preparation beforehand by all sides will greatly aid in lessening the problems that arise from lien and set-aside issues.

In the fact situation above, there will be a question concerning grave injury, since the employer has been impleaded into the action and there is no contractual indemnification available. The employer will surely raise the grave injury defense to keep its contribution to the compensation already paid. As with the other issues in the case, the defense, especially, should be familiar with cases like Rubeis v. Aqua Club Inc., 3 NY3d 408 (2004), and the effects a claim of traumatic brain injury will have on the grave injury question. Since the employer has been brought to the table, the issue of the compensation lien is ripe for resolution, even if there can be no consensus about grave injury.

Lastly, the parties should have a good grasp of personal injury sustained amounts in the department in which the case is venued. In this regard, the parties should avail themselves of access to the New York Official Reports found at www.courts.state.ny.us and devote some time reviewing recent cases from the four Departments of the Appellate Division and the Court of Appeals on the issue of damages awards. There are also blogs available through a Google search that will provide information on awards that were recently sustained as reasonable by the appellate courts , including awards for herniated discs with or without surgery, shoulder injury awards with or without surgery and traumatic brain injuries.

While this “revisit” is in no way exhaustive of what is involved in making a mediation successful, it is hoped that it will encourage those parties seeking mediation to put the effort into streamlining their submissions and preparing their cases as if they were preparing for a trial. Nothing succeeds as much as knowing your case, knowing your case law and communicating with the opposing side. It has been this mediator’s experience that those who really know their cases more often than not succeed in amicably disposing of their cases through the mediation process.

Mediation is a partnership endeavor. Plaintiff’s attorneys and their clients, defense attorneys and their adjusters, and the mediator all want the same result - a disposition of the case on terms that is satisfactory to all sides. As with most things, preparation is the key, civility is the rule, and knowledge is paramount. Here’s to all of your success in future mediations! For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at jsilvey@namadr.com or direct dial telephone at 516-941-3228.

______________________________________________________________________________ Susan Hernandez, Esq. is a member of NAM’s (National Arbitration and Mediation) Hearing Officer Panel, and is available to hear arbitrations and mediations throughout the New York Metro area. She was voted one of the Top Ten Mediators in the 2015 New York Law Journal Reader Rankings Survey and named a 2016 Alternative Dispute Resolution Champion by The National Law Journal.

Click here to view Susan Hernandez's resume.

For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at jsilvey@namadr.com or direct dial telephone at 516-941-3228.
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