Skillful advocacy in mediation is every bit as critical
to the successful resolution of a case, as is the quality of advocacy
in trial. This is especially true in Elder Abuse disputes, brought under
the Elder and Dependant Adult Civil Protection Act (
Welfare & Institutions
Code §§ 15600
et seq.). These cases typically involve an
alleged wrongful injury or death to an elderly or severely disabled
adult, while in the care of a nursing home or residential care facility.
The stakes are very high, and the emotional component is explosive.
What should advocates understand about Elder Abuse mediation, to maximize
the opportunity for achieving a good settlement? What are the legal
pitfalls to be aware of, especially in the area of confidentiality?
This short article will outline the unique features of the Elder Abuse
case, present several keys to successful mediation advocacy, and address
the developing law of confidentiality as it relates to Elder Abuse mediation.
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 grief and anger, as in any serious injury or death case.
In Elder Abuse cases, the grief is often compounded by a deep sense
of guilt. Our society is ambivalent about the common practice of placing
elders in an institutional setting, when caring for them becomes too
difficult. The family feels guilty about the decision long before injury
occurs. When their worst fears are realized, in the form of perceived
abuse with tragic consequences, they feel deeply that they have let
down the elder at the time of greatest need. The guilt may be unstated
or unconscious, but it is inevitably present.
Family guilt is one of the toughest barriers to settlement,
because significant compromise feels like another failure to stand up
for the loved one, who the family allowed to suffer at the hands of
strangers. Fighting for the loved one in litigation, therefore, has
great emotional value for the family. It represents (1) standing up
for the loved one (even if deceased); and (2) establishing the fault
of others (i.e., deflecting guilt). Settlement requires plaintiffs to
let go of the guilt and anger, and put the battle behind them.
Defense Issues: There
are no more sympathetic plaintiffs (or decedents) than the elderly and
severely disabled. Every juror in these cases thinks of the loved ones
that are, or will be, in institutional care.
Beyond the sympathy factor, defendants face daunting practical
and legal challenges that make it difficult to avoid liability. 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. Defendants
do not have the protections of MICRA (Civil Code § 3333.2) if
more than negligence is established (See, Delaney v. Baker (1999)
20 Cal. 4th 23).
The volume and complexity 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 violations,
which is awkward to explain to juries. Funding for the care of infirm
patients through private insurance or governmental sources is usually
minimal, causing many operators to struggle with staffing deficiencies.
Low wage employees may not be highly committed to the welfare of the
patients. Many patients suffer from dementia, chronic pain, depression,
are combative, and are prone to injury. Many will die within weeks or
months of admission, to the horror of their inquiring families. Allegations
of serious abuse can threaten licensing and lead to criminal penalties.
Adverse publicity can destroy a nursing home business.
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 side, to generate a spirit of understanding
and problem solving. Plaintiff's counsel should usually avoid the temptation
to collectively demonize the defense. 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 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.
CHOOSING A MEDIATION PROCESS
There are, broadly speaking, two approaches. (1) The
Case Management Approach, and (2) The Limited Mediation Approach.
For significant cases, the first approach is recommended. It can result
in large cost savings, and will maximize the potential for settlement.
The Case Management Approach: This
approach involves hiring the mediator early to work with counsel on
a joint plan to bring the case to the mediation table with both sides
well prepared, with realistic expectations, while controlling of costs.
The attorneys and mediator will have a series of conference
calls, or pre-mediation meetings, to design the process, including pre-mediation
discovery, and to stay on track for the scheduled mediation sessions.
The key question to be addressed at the preliminary conference is: What
steps must take place before negotiation to maximize the potential for
settlement? The agreement will usually involve informal sharing
of documents (or authorizations), and agreement for a focused discovery
schedule, of only those items which must occur before negotiation. In
some cases, having clients or insurance representatives participate
in the preliminary conferences helps build cooperation. The parties
do not waive any right to pursue complete formal discovery, if mediation
fails. The mediation session(s) should be set early enough to allow
time for completion of discovery, if settlement is not achieved. Any
preliminary conferences are covered by the confidentiality protections
of Evidence Code §§ 1115, et seq.
The parties should plan to conduct the mediation in several
sessions. This can be critical in Elder Abuse, to allow time for emotional
barriers to fall and to evaluate what is learned at the mediation table.
For instance, a first session may involve factual presentations and
catharsis for the plaintiff family, with no pressure to engage in negotiation.
One or more subsequent sessions may focus on expert opinions, and negotiation.
A multi-step process has the great benefit for both sides of developing
a cooperative attitude and some level of trust before trying to negotiate.
When counsel are constructively engaged, the spirit of the enterprise
tends to rub off on the clients, reducing the emotional tension inherent
in Elder Abuse cases.
The mediator should never have a decision-making
role in resolving discovery disputes. The discovery referee (if needed)
should be a different person. Blending the roles reduces candor and
cooperation, compromises mediator neutrality, and raises troubling issues
about the mediator reporting to the court. See, Foxgate Homeowners
Association v. Bramalea California, Inc. (2000) 78 CA 4th 653 (currently
being reviewed by the California Supreme Court).
Limited Mediation: This
approach leaves pre-mediation planning to counsel, with little mediator
involvement. Even with this approach, it is wise to have at least one
conference call with the mediator before a negotiation session in a
significant case, to be sure your opponent is ready, and to agree on
who will personally attend the mediation.
The Timing of Mediation
Mediation has become so commonplace, 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 from an agency
and go forward. A more deliberate approach is recommended.
At what point in the development of the case should the
parties engage in a mediated negotiation session? The answer is: only
when the essential preparation has been done. You must be well prepared
to impress your opponent and your client with your mastery of the case,
and your ability to persuasively present it. 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 not have the client's trust, and 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 at the initial session, resulting in client aggravation,
and reducing the chances for settlement.
Preparation, Preparation, Preparation
As with trial, there is no substitute. Some lawyers waltz
into mediation barely knowing the facts, stumbling over party names,
and having engaged in no risk analysis with their clients before the
hearing. 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. You do not need to take every deposition before mediating,
but should be aware of the key evidence. The essential facts should
be known, key documents obtained from the facility and investigating
agency, and important witness statements or depositions taken before
mediating an Elder Abuse case. Most attorneys will informally share
evidence, if there is an understanding that all sides are working toward
mediation. Expert analysis should be obtained before the mediation.
The stakes are high, and the choice to spend perhaps $10,000 to $25,000
on an early expert work-up will more than pay for itself, where medical
causation or standard of care issues are hotly disputed.
2. Prepare your client to participate.
This means explaining the mediation process, and preparing the
client to hear unpleasant things from the opposition. Let the client
know that it is best to hear these things now, in a more cooperative
and informal setting, where they can be evaluated and put in proper
context. Also 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 plaintiff 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, doctors, and even insurance representatives
can be a tremendous catharsis, without which some plaintiffs do not
feel that they have been heard. It also allows defense decision-makers
to evaluate first-hand the jury appeal of the plaintiffs.
Constructive and sincere comments from the defense can
diffuse tension, and help plaintiffs understand the full picture. Prepare
the defense client to participate in something more than zealous advocacy.
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. If there are to
be apologies or expressions of sympathy, they must be genuine and should
not immediately precede or follow strident advocacy by counsel. I find
that they are best expressed informally at breaks, or before a session
begins. However, beware of confidentiality issues (see below).
3. Analyze the case for your client
before mediation, while encouraging the client to have an open
mind to learn new information and to hear the perspective of other knowledgeable
people. If a client is hearing about a significant risk for the first
time in mediation, it may arouse anger or be hard to factor that into
the client's settlement expectations.
With insurance carrier involvement, the defense has typically
done the analysis before mediation. What the defense decision-makers
may not have assessed are the sincerity and credibility of plaintiffs.
This factor is often more important than any other, 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. This will often involve having a structured settlement
broker present or available by telephone. For the defense, 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.
5. Exchange settlement proposals well
in advance of the negotiation session. I strongly recommend that
parties exchange realistic monetary proposals before mediation. If neither
side has a clue about the general range under discussion, initial attempts
to negotiate at mediation will go nowhere. Plaintiff expectations must
be managed. Corporate defendants and carriers can not generate six-
and seven-figure authority without lead time. If a multi-step process
is used, proposals may be exchanged after the initial session(s), but
well in advance of the negotiation session. If the pre-mediation proposals
are dramatically apart (even allowing for posturing), you may wish to
bring the mediator into the discussion to narrow the gap, or assess
what further sharing of information is needed to get close enough for
a fruitful negotiation.
6. Bring the real decision-makers.
This point is mentioned under "preparation" because the 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 involve non-party family advisors or extended family members who
must be consulted. For defendants, it means higher level corporate or
insurance representatives. The defense should always bring a high level
representative of the defendant facility, even if that party has no
say in financial settlement decisions. Plaintiffs invariably want to
tell their tale to a real representative of the perceived wrong-doer.
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 might have been possible if the decision-maker
was there to hear from the mediator. This unknown gets in the way of
settlement. 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 share your
brief with the opposition.
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 may be 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 the form
of admissible evidence or to save something for trial, brief those separately
to the mediator. There is no prohibition against ex parte contacts
with 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 impress the opposition with your
mastery of the subtleties of the law.
8. Make a compelling presentation
in joint session. This requires preparation.
Attorneys sometimes think that an extensive joint session
is a waste of time. After all, the opposing attorney has engaged in
discovery, has read the mediation brief, has previously discussed the
case at length you, and has certainly reported to his or her client.
Why cover old ground, and risk upsetting the other client by articulating
your unpopular spin on the case?
There are several false assumptions in this reasoning.
Opposing counsel has interpreted discovery through the lens of his client's
interests, and may not have focused sufficiently on what you see as
the critical evidence. Decision-makers across the table may have heard
a distorted version of reality through their attorney, or may not be
well informed about the key evidence. Also, there is always new information
to convey. Finally, even if we assume that all sides have the same perception
about the evidence, and that counsel have evaluated it objectively for
their clients, there is great benefit to framing all issues clearly
as a prelude to negotiation. The opposition needs to see you in action,
and to see your client. A skillful mediator will help clarify where
the key issues lie, where there are points of agreement, and will help
diffuse unproductive tensions through the joint session process.
You should 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.
Consider using visual aids, including power-point presentations.
It can be highly effective, if the case warrants it and the drama is
not overdone. The defense showing a video of what a facility is like
(a defense "day in the life"), if the facility is impressive, can be
persuasive. Plaintiffs showing photos or videos which highlight tender
moments the deceased are very effective. 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 not prepared something comparable. If
the opposing party leaves the joint session with a sense that you are
totally prepared to try this case, are enthusiastic about your prospects,
have carefully evaluated the strengths of their position, and can tell
a compelling story, your client will see a better result from the negotiation.
9. 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
Confidentiality is the cornerstone of mediation, and is
especially important in Elder Abuse. Confidentiality encourages candor
and a willingness to compromise. 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 developing law which may limit confidentiality in the future. It
is important that counsel are aware of the limitations on confidentiality,
and advise their clients accordingly.
The California Mediation Act (Evidence Code §§
1115 et seq.) provides that communication 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. 4th 155. In the realm of Elder Abuse, criminal
liability is a concern in some cases and conciliatory statements in
mediation may damage a defendant's prospects in a criminal trial.
Even in civil cases, appellate courts have articulated
a troubling standard for compelling disclosure of mediation communication,
which places great discretion in the hands of the trial judge to make
a public policy decision. See, Foxgate Homeowners Association v.
Bramalea California, Inc. (2000) 78 CA 4th 653 (currently being
reviewed by the California Supreme Court); 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. 4th 155 (right
to confront and cross-examine witnesses in juvenile hearing takes precedence
over confidentiality). There is a strong public policy protecting the
elderly and dependent from abuse. The important public policy favoring
mediation confidentiality is new territory for most courts, and may
not be given the same weight.
The Uniform Mediation Act is in its final drafting
stages, and will likely be put before the ABA Board of Governors in
2001. If approved, it will be offered to the states for adoption. The
current draft has an exception to confidentiality in certain cases,
in Section 9(a)(5), "for a mediation communication offered to prove
or disprove abuse, or neglect, abandonment . . ." This provision, if
not altered, would gut confidentiality in any Elder Abuse mediation.
Several mediation organizations are fighting to have it deleted, but
the judicial presence on the drafting committee seems committed to it.
Hopefully, California will stick with the current statute (which has
no such exception).
What does all of this mean for the practitioner? You must
advise your clients carefully about the true scope of confidentiality
in Elder Abuse mediation. In egregious case, where aggressive administrative
agency involvement or criminal prosecution are likely, client communication
must be carefully monitored. In most cases, the advantages of mediation
far outweigh the risks.
Conclusions
Mediation has made it possible to resolve a high percentage
of Elder Abuse cases, with greater client satisfaction and lower cost.
Wisely used, the benefits far outweigh the risks. Attorneys who carefully
prepare, and use the full range of their advocacy and inter-personal
skills, will reap great rewards for themselves and their clients.