EXTREME MEDIATION:

Advocacy in Elder Abuse Mediation

 

by Kevin Thomas McIvers

 

(Published in edited form in the Santa Barbara Lawyer and The Advocate)

 

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Elder Abuse disputes are among the most emotionally charged, high exposure cases seen in mediation.  They often involve the painful death of an elderly or severely disabled adult, while in a nursing home or residential care facility.  What should advocates understand about Elder Abuse mediation, to maximize the opportunity for achieving a good settlement?  What are the practical and legal pitfalls to be aware of? 

UNIQUE FEATURES OF ELDER ABUSE CASES

 There are several unique characteristics of Elder Abuse cases which must be understood, if advocates are to use the mediation process wisely.

Plaintiff Issues:  Plaintiffs are usually the family members of an elder or disabled person, who has died or been severely injured while in a nursing home.  The family naturally experiences profound grief and anger.  Unlike other PI cases, the grief is typically compounded by a deep sense of guilt.  The family feels guilty about the decision to place a loved one in institutional care, long before injury occurs.  When their worst fears are realized, with tragic consequences, they feel deeply that they have failed the elder at the time of greatest need.  The guilt is usually unstated or unconscious, but it is inevitably present. 

 Family guilt is one of the toughest barriers to settlement.  Compromise feels like another failure to stand up for the loved one who has suffered.  Fighting in litigation represents: (1) standing up for the loved one (even if deceased); and (2) deflecting guilt.  Settlement requires plaintiffs to let go of the guilt and anger, and must not be seen as another abandonment of the elder.

 Defense Issues:  Defendants face daunting legal and practical challenges that make it difficult to avoid liability.  There are no more sympathetic plaintiffs (or decedents) than the elderly and severely disabled.  Every juror will think of the loved ones that are, or will be, in institutional care.   

Defendants do not have the full protections of MICRA (Civil Code § 3333.2) if more than negligence is established.  The “Elder and Dependant Adult Civil Protection Act” (EADACPA or “Elder Abuse Act, Welfare & Institutions Code §§ 15600 et seq.), is a powerful tool for plaintiffs.  It provides for enhanced damages upon proof of reckless or malicious conduct, including: (1) general damages of up to $250,000 for suffering before death; (2) attorney fees; and (3) punitive damages.  The Act applies to anyone 65 and older, or with “physical or mental limitations that restrict [the] ability to carry out normal activities.”  (W. & I. § 15610.23)  A broad range of conduct is prohibited within vague definitions of “abuse, neglect or abandonment.”  Recklessness may not be hard to prove, when the foreseeable consequence of insufficient care is serious injury or death.  (See, Delaney v. Baker (1999) 20 Cal. 4^th 23).

The volume of state and federal regulations of skilled nursing facilities rivals that governing the nuclear power industry.  Well-run nursing homes are routinely cited for minor deficiencies, which are awkward to explain to juries.  Funding for the care of infirm patients through private insurance or governmental sources is minimal, causing many operators to struggle with staffing deficiencies.  Low wage employees are often not highly committed to the welfare of the patients.  Many patients suffer from dementia, chronic pain, and depression, are combative, and are prone to injury.  Many die within days or weeks of admission, to the horror of their families.  Abuse allegations can threaten licensing and lead to criminal penalties.  Adverse publicity can destroy a nursing home business.  Insurance has become prohibitively expensive for smaller operators, or completely unavailable.

Advocacy with a Human Touch:  With these powerful factors driving many Elder Abuse cases, ordinary mediation advocacy (highlighting trial risks and costs) is not enough.  Advocates should look for opportunities to acknowledge the difficult issues facing the other parties, attorneys and adjusters, to generate a spirit of problem solving.  Plaintiff’s counsel should usually avoid the temptation to collectively demonize the defense (although some cases call for it).  Clearly present the legal consequences of specific objectionable conduct, while supporting the people representing the defendant in the difficult task of finding a solution. Defense counsel can usually find ways to emotionally validate the plaintiff family, while objectively presenting the facts helpful to the defense.  With patience, a skillful mediator and a well-conceived process, unproductive tension is relieved, and a fair settlement becomes possible.  

DESIGNING THE OPTIMAL THE MEDIATION PROCESS

It is critically important to avoid false starts or failed mediations, in these emotionally explosive cases.  A well conceived process can do just that.  It may be impossible to get the parties back to mediation in a constructive frame of mind, after a bad first effort.  There are several ways to maximize the chance for a successful first mediation.

 

Pre-Mediation Conference With the Mediator

Each case is unique, and merits careful handling.  On significant cases, call the mediator in advance to discuss how best to approach settlement discussions.  Ex parte communication is permitted and encouraged in mediation.  A conference call with counsel and the mediator (a “Pre-mediation Conference”) may be best, if there are issues to be resolved between counsel.   These may include:

ü      revealing coverage issues;

ü      ensuring the attendance of the real decision maker;

ü      informally sharing key evidence;

ü      alerting each other to difficult issues requiring delicate handling at mediation;

ü      designing the joint session (if any);

ü      discussing best use (if any) of defense expressions of sympathy; and

ü      agreeing to exchange of briefs.

The pre-mediation discussions set a tone of cooperation, and avoid many familiar mistakes which derail mediation.  Some of these are discussed further, below.

 The Timing of Mediation

Mediation has become so routine, that some attorneys give little thought to the timing of the mediation.  If another lawyer or the court suggests it, many lawyers just get a date and go forward.  A more deliberate approach is recommended in Elder Abuse cases.

 At what point in an Elder Abuse case should the parties engage in mediation?  Only when the essential preparation has been done.  These cases require extensive preparation on the front end.  You must be well prepared to impress your opponent and your client with your mastery of the case, and your persuasive skills.  Few plaintiffs will significantly compromise on the death or suffering of a loved one, and no defendant will pay large sums of money, without persuasive reasons to do so.  Attorneys will lack the client control needed to guide a negotiation, if the opposition is better prepared and makes a stronger presentation at mediation.

 Use the mediator to help the parties agree on appropriate timing for the negotiating session.   A mediation that is commenced prematurely will usually fail, resulting in client aggravation, and reduced potential for settlement.

 Preparation, Preparation, Preparation

 There is no substitute.  Some lawyers waltz into mediation barely knowing the facts, stumbling over party names, and having engaged in no pre-mediation risk analysis with their clients.  It is hard for a mediator to be supportive of an attorney’s performance before the client, when this occurs.

Good preparation should include the following:

1.  All essential evidence must be known.  The essential facts should be known, key documents obtained from the facility and investigating agency, and selected important witness statements or depositions taken before mediating.  Most attorneys will informally share evidence, if there is an understanding that all sides are working toward mediation.  Basic expert analysis should be obtained before the mediation.  The choice to spend perhaps $10,000 to $25,000 on an early expert work-up will more than pay for itself.  

2.  Prepare your client to participate.  Explain the mediation process, and prepare the client to hear unpleasant things from the opposition or mediator.  Let the client know that it is best to hear these things now, in a cooperative and informal setting, where they can be evaluated and put in proper context.  Explain that the other lawyer has a duty (even in mediation) to be a zealous advocate, and may feel duty-bound to argue unpleasant points which may have little bearing on the negotiation. 

Prepare your client to speak at the mediation, if you have a client that can do so effectively.  Letting the plaintiff family speak in front of management, defendant doctors, and insurance representatives is a tremendous catharsis, without which some plaintiffs do not feel that they have been heard.  It also allows defense decision-makers to evaluate the jury appeal of the plaintiffs.

 Sincere comments from the defense representative can diffuse tension, and help plaintiffs understand the full picture.  This requires preparation by defense counsel.  Even if liability is hotly contested, plaintiffs’ grief and unspoken guilt are usually genuine.  A little conciliation from the defense may help plaintiffs to make a tough settlement decision.  Apologies or expressions of sympathy must be genuine, not contrived, and should not immediately precede or follow strident advocacy by counsel.  They may be best expressed informally at breaks, or before a session begins. 

3.  Analyze the case for your client before mediation, while encouraging the client to have an open mind to listen and learn from the mediator and others at mediation.  If a client is hearing about a significant risk for the first time in mediation, it is hard to factor that into the client’s settlement expectations. 

 Defense representatives have typically done the analysis before mediation.  What the defense decision-makers may not have assessed are the sincerity and credibility of plaintiffs.  This can be the single most important factor in evaluating jury verdict potential.  Encourage your insurance clients to keep an open mind on critical issues, and to use the neutral to gain a disinterested perspective on how the jury may perceive the plaintiffs.  Finally, remind your insurance clients that new information is learned in virtually every mediation, even after extensive discovery.

 4.  Be prepared to handle monetary issues.    The defense should come fully prepared to negotiate in a realistic range.  A realistic assessment and committee process should precede mediation, with the understanding that the defense must be flexible (up or down) based on what is learned at mediation.  If the mediation unfolds as a mere theoretical discussion, with no realistic offer being made, plaintiff’s frustration may block future negotiation.  If a session is not going to involve serious negotiation, that should be agreed upon beforehand to avoid frustration.  

5.  Exchange realistic settlement proposals well in advance.  If neither side has a clue about the general range under discussion, initial attempts to mediate will go nowhere.  Plaintiff expectations must be managed.  Corporate defendants and carriers cannot generate significant authority without lead time.  When pre-mediation proposals are dramatically apart (even allowing for posturing), bring the mediator into the discussion by telephone to narrow the gap, or assess what further sharing of information is needed before mediation. 

6.  Bring the real decision-makers.  Failure to have the right people in the room often results from a last minute attempt by counsel to secure client attendance.  For plaintiffs, this may include non-party family advisors or extended family members who must be consulted.  For defendants, it means higher level corporate or insurance representatives.  In larger cases, there is no upside to either side in not bringing key people personally to mediation.  Even if adequate authority is conveyed to those attending, the opposition will wonder whether a more reasonable position would be possible if the decision-maker was there to hear from the mediator.  A decision-maker who is present and says “absolutely no” has far more credibility, than one who digs in heels from afar.  A plaintiff’s lawyer without a client, or a novice adjuster who claims to have “full authority,” does not cut it.                                         

7.  Brief carefully and serve your brief.  The goal is to bring the other side to the table fully prepared to evaluate the case in terms of your strengths, and impressed with your level of preparedness.  If they hear some of your strong points for the first time at a negotiating session, it is difficult to alter expectations quickly.  A “hide the ball” approach makes no sense, if the goal is to achieve a good settlement.  If certain features of your investigation must be kept secret, until confirmed in admissible evidence or to save something for trial, brief those separately to the mediator.  The law in Elder Abuse is quite new and developing rapidly.  Many attorneys who practice in the field are not well versed in the law.  Do not miss the opportunity to educate and impress the opposition with your mastery of the law.   

8.  Prepare a compelling presentation for joint session.     First, a skillful mediator must design the right form of joint session.  There are many different approaches available. The goal is to exchange information, and begin the process of working together towards settlement.  Of course, aggressive bashing of the opponent is worthless.  If certain lawyers can not be civil, it may be best to have no joint interaction.  If the plaintiff family will only be inflamed be a joint session, a session with only attorneys and adjusters is very useful. Information is exchanged without stirring unproductive emotions.  Sometimes the plaintiff family needs to participate in some interaction to feel they have been heard, but should be excused before the defense makes its legal arguments.  Whatever the form of joint interaction, a skilled mediator will help clarify the key issues, highlight points of agreement, and diffuse unproductive tensions.

 Attorneys sometimes think that a joint session is a waste of time.  Why cover old ground, and risk upsetting the other client with your spin on the case? After all, the opposing attorney has engaged in discovery, has discussed the case at length with you, and has certainly reported to the client. 

There are several false assumptions in this reasoning.  Opposing counsel has interpreted discovery through the lens of the client’s interests, and not focused sufficiently on your strengths.  Decision-makers across the table (distinguished from counsel) may not be well informed.  Even if you assume that opposing counsel has conveyed an objective view of reality to the client (a monumentally optimistic assumption), there is great benefit to framing issues clearly for negotiation.  The opposition needs to see you in action, and to see your client.  Consider using visual aids, including power-point presentations.  It can be highly effective, if the case warrants it and the drama is not overdone.  When an audio-visual presentation is planned, alert the mediator and opposing counsel well in advance of the session.  Attorneys and parties occasionally take offense at slick presentations, when they have nothing comparable.

If the opposing party leaves the joint session knowing that you are totally prepared to tell a compelling story, and have carefully evaluated the strengths of their position, your client will see a better result.

9.  Consider bringing key witnesses and experts to the mediation.  This has much more impact than summarizing a deposition, or telling the opposition what a key undeposed witness might say.   

10.  Defense:  Be conciliatory and acknowledge genuine grief.  This costs you nothing, and often helps the mediator work privately with plaintiffs.  The suffering is usually genuine. Plaintiffs will not be able to recognize the wisdom of your position, if you do not show them that you see the reality of their experience.  This does not preclude you from stating your legal and factual points persuasively, and negotiating aggressively. 

Confidentiality Concerns & the Rojas Problem        

 Confidentiality is the cornerstone of mediation, especially in Elder Abuse and other high exposure, emotionally charged cases.  Without it, direct client involvement is minimized, attorney posturing is the norm, and settlement rates are much lower.  Unfortunately, there are gaps in the current law of confidentiality, and gray areas which the courts have yet to clarify.  Be aware of the limitations on confidentiality, and advise the clients accordingly.

 The California Mediation Act (Evidence Code §§ 1115 et seq.) provides that communications in mediation (including documents generated for mediation) are not admissible in a civil trial or arbitration, and that the mediator may not report anything to the court about the mediation.  Evidence Code § 703.5 states that a mediator is not competent to testify about what occurs in mediation.  California law does not preclude a court from compelling testimony in a criminal case about what occurred in a civil mediation.  See, Evidence Code §1119; and Rinaker v. Superior Court (1998) 62 Cal. App. 4^th 155.  In the realm of Elder Abuse, criminal liability is a concern in some cases, and frank statements in mediation may damage a defendant’s prospects in a criminal trial.

 Even in purely civil cases, appellate courts have occasionally fashioned exceptions to the confidentially promised in the California Mediation Act.  The California Supreme Court took a very strong stand in support of confidentiality in Foxgate Homeowners Association v. Bramalea California, Inc. (2001) 26 Cal.4^th 1, noting that the statute provided for “no exceptions.”  Also in that decision, however, the court approved exceptions articulated in two recent cases:  Olam v. Congress Mortgage Company (October 1999) 68 F. Supp. 2d 1110 (mediator compelled to testify regarding consent to a mediated settlement agreement); and, Rinaker v. Superior Court (1998) 62 Cal. App. 4^th 155 (right to confront and cross-examine witnesses in juvenile hearing takes precedence over confidentiality). 

The California Supreme Court is currently reviewing Rojas v. Superior Court (2002) 102 CA 4^th 1062, in which the Court of Appeal ruled that production documents (compiled with input from expert and counsel), produced for mediation with the assurance of confidentiality, could be compelled in a later litigation when the evidence was not otherwise obtainable.  This is very important in Elder Abuse cases, where expert analysis is vital, and similar cases are often litigated against the same corporate defendant.  The Court of Appeal employed a privilege analysis, balancing competing policies after an in camera review of the documents.  There is a strong public policy protecting the elderly and dependent from abuse.  The important policy favoring mediation confidentiality is still new to most courts, and may not be given the same weight when the two policies conflict.

(Note to Reader:  Since publishing this article, the California Supreme Court has published its ruling.  See, Rojas v. Superior Court (2004) 33 Cal. 4^th 407.  The privilege analysis was rejected, but a careful (or strained) distinction was drawn between discoverable raw evidence, and derivative materials which are protected.) 

To protect your client’s right to future confidentiality of documents prepared for mediation, consider having opposing counsel sign a stipulation, which confirms that the material was produced with the agreement that it would be protected under Evidence Code  § 1119, and never be used in future proceedings without the written consent of the producing party.