Monday, August 5, 2013

The power of a phone call

I am a big fan of collegiality. Conversation leads to familiarity and understanding. We may never agree with one another, but we can understand each other despite our disagreement. I was reminded recently of the "old days." I was discussing the efforts of some other jurisdictions, which will make significant efforts in coming months to move their processes toward including mediation. Their stated goals are familiar to me, they believe mediation will result in faster and better resolutions of pending claims. I think they are right. 

I am getting old, I see the signs of it every day. Though I am not one of the workers' compensation "old timers," I remember before we had statutory mandatory mediation in Florida. Much as I hate to be perceived as preaching about "the good old days," I think it is important to remember that mandatory mediation was not always the process in Florida. Implementation of mandatory mediation has undoubtedly been a great benefit over the last 20 years for injured workers and employers alike. It has been many years since I heard anyone seriously advocate that mediation has no place in workers' compensation (though I remember the critics voicing that back in the early 1990s). 

Certainly, there are some who believe that some types of claims  do not need to proceed to mediation. I discussed this in June with an attorney, who lamented the "cost benefit" analysis he believes in, and the cost of mandating mediation on claims that are "minor" and which should be capable of resolution without the cost of attending mediation (I took it that he was focused on time as a cost more than actual money, but in the end time is money so the analysis is the same in all likelihood). I agreed with his comments, generally that not all claims necessarily require a meeting to resolve.

Returning to collegiality, I am reminded of one of the downsides of mediation. I vividly recall an instance early in the mandatory mediation era. I received a petition from opposing counsel, listing multiple issues. I drafted an opinion letter and faxed it (yes, there was no email and if there was I had not heard of it at least) to the adjuster. After a few days, I called to discuss my recommendations with him. I remember that my recommendations involved some issues I thought we should concede, some we might convince claimant to concede and some we might have to litigate at least through some recommended discovery. The adjuster's response? "When is the mediation scheduled." I reiterated how we could deal with some issues immediately, to which the adjuster replied, "remind me at the mediation." 

The mediation process, intended to promote resolutions, in that one instance had become a future event to which decisions could be put-off. See, before we had mediation we had the telephone. When we got a petition or claim, it was common for us to proceed as I describe above. We would talk to the adjuster or employer. We would then talk to opposing counsel about the claims. Often times, we would reach compromises agreeing to provide some benefits, claimant perhaps dismissing some claims or issues. We sometimes resolved every claimed issue in some manner, even fee entitlement and amount. It was amicable and conversational. In the process, the bar became familiar to us all, and we knew each other. 

Mediation is a great process, and it results in resolution of many claims. I think that more jurisdictions will adopt mandatory mediation. Though some may limit the population of claims to which the mandate will apply. Some types of cases may be more amenable to this process, in their respective perspectives. I hope that Florida can serve as a role model in this process, as I think our system and process is efficient and effective. 

I also hope though, that we do not allow anything to deter us from the benefits of a conversation. Email is convenient and is great for documenting things, but a written message is no substitute for a conversation. I hope we will all remember that and pick up the phone. Let's discuss claims and defenses, strengths and weaknesses, needs and wants. If an agreement can be reached before incurring the cost of mediation, so be it, that is a benefit to all involved. 

If an agreement cannot be reached, the cost of having had the conversation is likely minimal, five to ten minutes? If nothing else, it gives us all a chance to say hello, how is your family, what is new, did you read so and so's recent article on such and such? These conversations will build familiarity, collegiality and connect us. The more we are connected as a bar, the more respectful and professional we are likely to act with and to each other. 

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