Sunday, December 6, 2015

Communication may be the key

We have some exceptional people working for the Office of Judges of Compensation Claims. I received an email recently from attorneys complimenting one of our state mediators. I hear from lawyers fairly regularly, noting a courtesy extended, an accommodation made, a situation handled.

It is not common that someone writes to me and describes an experience with the OJCC that they characterize as “remarkable.” This story starts like all mediation stories should start, with the two attorneys working diligently to refine the issues and resolve things even before going to mediation.

Too many people see mediation as a first resort to resolution, when there are actually plenty of chances to resolve things short of mediation.  I remember an attorney years ago filing a motion asking to waive mediation. I was not Deputy Chief judge at the time, and the motion came up during a live hearing on some other issues. The attorney had not certified “good faith,” but had explained that efforts at contact had been unsuccessful, and so opposition was presumed.

I found that ironic. The process of mediation is supposed to be communicative. The process of motion practice is supposed to be communicative. In that instance I had a motion (over which I had no jurisdiction), being argued without prior conversation, seeking to avoid the conversation that is mediation. That is not how the profession is supposed to work. Our goal is to move the process forward. To do that, we communicate, we facilitate, we cooperate. Lawyers and parties do not have to like each other, but there has to be respect for one another. 

In the incident recently reported, the work leading up to mediation led everyone involved to conclude that the claimant would not appear. They could not reach the claimant, had not heard from the claimant and “it was believed likely to be a no-show, with a resulting show-cause hearing, and/or withdrawal.” The mediator was informed and in light of the circumstances, telephonic appearance by both attorneys was allowed.

Proving once again that mediation is unpredictable (Murphy's law), the claimant surprised everyone and showed up live at the mediation as noticed. With the attorneys appearing by phone, it was not a singularly unique experience, but not your garden variety mediation paradigm either.

Turns out the claimant was homeless; had no phone and was therefore difficult to reach. Homeless claimants present challenges. Their address may be non-existent or may change frequently. They can be difficult to keep up with. As one might imagine, a homeless person’s first priority is not going to be focused on address change notifications. There are a multitude of survival issues that these people face, which all take precedent over things like address change, and even things like mediation of their workers' compensation case.

The parties in this case reached a settlement agreement. Our mediator “identified potential hurdles, and came up with creative solutions on the exchange of papers, and service of an agreed advance check.” The parties acceded to the mediator’s suggestion for the advance check to be sent by the carrier to the injured workers at the OJCC district office. The defense counsel also sent the settlement paperwork there. This facilitated the needs of the injured worker, who lacked an address otherwise, but also assisted the employer/carrier with communication. 

In the words of counsel, “Mediator Hart (FTM) stepped-up, showed creativity, and came to solutions to protect all interests of the parties and counsel, and to show exemplary instances of tremendous public service.” Opposing counsel appreciated  the “innovative way in which Mediator Hart selflessly offered her time and effort to make this settlement possible,” characterizing the effort of Mediator Hart as “extraordinary.” 

I hear a good many compliments about this agency and the people that work here. Sure, there are criticisms and complaints sometimes too. But, that is one of the best compliments ever. Counsel on both sides of the case suggested that “Mediator Hart should be praised and acknowledged.” I could not agree more.

While I am at it, though, a thank you to the attorneys. Thank you for preparing in advance, and knowing that there was a potential for a difficulty. Thank you for speaking to each other in advance of the mediation. Thank you for keeping the mediator in the loop. Thank you for your professionalism and flexibility with the process and with each other. Mediation by its very nature is a collaborative process. These attorneys' activity in this case was the epitome of communication, which is a bedrock to resolving disputes small and large. 

There will be issues that cannot be resolved, problems that cannot be readily surmounted, things beyond parties' control. But there will not be things that cannot be discussed at least in generalities. Professional communication is likely a key to much in litigation and mediation. It is in the best interest of all involved. 

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