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Current State of Marijuana and Employment Issues: A Moving Target

February 5, 2016/in Articles, Drug Testing, Marijuana /by Cathy Klein, RN, Esq.

Current State of Marijuana and Employment Issues: A Moving Target

by Cathy A. Klein

Reprinted from Colorado Trial Lawyers Association/Trial Talk – June/July 2015

“Just can’t turn a no into a yes without a maybe in between.”

President Francis Underwood, “House of Cards”

Marijuana law in Colorado and throughout the country is an ever changing, seemingly moving target and needs to be checked every day and counsel must keep abreast of the rapid developments. An underlying reason stems from the fact marijuana remains illegal under federal and most state laws, and there are no reliable tests to determine cur- rent impairment. The rapidly emerging marijuana market embraces nearly every aspect of the law, particularly employment law.

The principle marijuana issues in employment arise from testing, termination and discipline, Americans with Disabilities Act, workers compensation and unemployment benefits.

Policies and Drug Testing for Marijuana: An Overview

Workplace drug policies are essential to establish clarity of expectations for both the employee and employer.

Appropriate employer policies should include alcohol and drug rules, focus on safety in the workplace, account for prohibited use under federal law, specify types of tests, whether notice is provided prior to testing, consequences of a violation of the policy, confidentiality, uniformity of enforcement and non-discriminatory testing. Some examples of situations commonly subject to testing are pre- employment, random, reasonable suspicion, return to duty, post-accident and/or follow-up. If there is a new policy, or change in existing policy, the employer should provide at least thirty days’ notice and copies, with the employees’ acknowledgment of receipt of the policy. Furthermore, employers should notify job applicants of the policy and any testing, preferably in writing.

The use of marijuana in the employment context usually occurs in three ways: on the clock use, off-the-clock use but under the influence at work and off-the-clock use and tests positive at work, but not under the influence. This last use is currently a major issue in Colorado employment law. The first two situations are clearly problematic for employees.

Current Marijuana Testing

Tests for other drugs that are water-soluble and, thus, quickly eliminated from the body, clear the body’s system rapidly, often times within a few hours after ingestion. The drugs are not detected after clearing the body. However, the fat-soluble tetrahydrocannaboids (THC) component in mari- juana that causes a euphoria, remains in the system much longer. Thus, testing for THC will likely produce a positive drug test even though the person has not recently experienced marijuana exposure and is not currently impaired. There are different types of marijuana drug tests. Hydroxy THC (H-THC) is an active metabolite that may show up initially and may indicate that a person has partaken in marijuana over the past few hours. On the other hand, Carboxy-THC (C-THC) can remain in the system for thirty days or more. It is an inactive metabolite and does not cause intoxication. It may test positive over a period of time. However, there is still no reliable test for current impairment.

Marijuana Drug Detection Time Chart by Medical Disposables, Inc.1

1 time only	5-8 days
2-4 times per month	11-18 days
2-4 times per week	23-24 days
5-6 times per week	33-48 days
Daily Usage	49-90 days
Hair Drug Test	Up to 90 days, some states 120 days
Saliva Drug Test	1-10 days
Blood Drug Test	2 days
Fingernail Drug Test	90 days
Alcohol Drug Test	3-5 days via Ethyl Gluconoride (EGT) or 10-12 hours via traditional method

Another means of testing for marijuana is via the hair. Blood nourishes the hair as it grows. If marijuana is in the blood, it will reach the hair and embed in the hair shaft. It takes about a week after drug use for the drug affected hair to grow above the scalp. Accuracy requires at least 100-120 strands of hair, cut as closely to the scalp as possible and must be at least a half-inch long. This provides a proximate thirty-day history since hair grows about a half-inch per month. One and a half inches of hair gives a ninety-day drug history.

Testing Litigation and Resources

Another area of law certain to change as a result of marijuana legalization is testing.

The conflict in types of testing was addressed in an Arizona DUI case in which the driver had C-THC metabolites in his system, but no H-THC, thus showing the driver was most likely not intoxicated. The trial court dismissed the case based on evidence showing the man was not intoxicated, and, therefore, not guilty of a DUI. The appellate court reversed the dismissal under the theory the Arizona legislature intended strict liability against users of illegal drugs. The Arizona Supreme Court overturned the appeals court and determined that drivers must have the active metabolites (H-THC) in their systems to prove DUI. The dissent argued that the law should punish marijuana patients regardless of whether or not they are impaired.2

Presently, there are a few federal agency traffic position statements that may prove to be helpful in representing an employee with a positive drug test for marijuana.

The National Highway Traffic Safety Administration (NHTSA) states testing for marijuana is not reliable to determine current impairment. The NHTSA re- leased recent research in November 2014 indicating that per se DUI limits for drugs, including marijuana, is inappropriate because knowing the person tested positive for marijuana does not indicate that the person was impaired at the time. The inference is if the drug test is not reliable, then other factors, such as behavior, are indicators that can support the drug test. Also, according to the NHTSA fact sheet on marijuana for blood and urine testing it is difficult to establish a relationship between the person’s THC level and performance impairing effects.3

An important distinction to make when evaluating impaired driving data is the mere presence of a drug in a person’s system, as compared to the person being impaired by a drug in his/her system. …Date identifying a driver as “drug positive” indicates only that the drug was in her/her system at the time of the crash. It does not indicate that a person was impaired by the drug (Compton & Berning, 2009).4 The presence of some drugs in the body can be detected long after any impairment. For example, traces of cannabinoids (marijuana) can be detected long after any impairment. For example, traces of cannabinoids (marijuana) can be detected in blood samples long after use. Thus, knowing that the driver tested positive for cannabinoids does not necessarily indicate that the person was impaired by the drugs at the time of the crash.” (Emphasis added.)5

“Current knowledge about the effects of drugs other than alcohol on driving performance is insufficient to make judgments about connections between drug use, driving performance, and crash risk.” 6 “Caution should be exercised in assuming that drug presence implies driver impairment. Drug tests do not necessarily indicate current impairment.

Also, in some cases, drug presence can be detected for a period of days or weeks after ingestion.”7

Additionally, the United States Government Accountability Office Report to Congressional Committees of 2015 concludes that drug testing for marijuana is not reliable to test for current impairment. “It is difficult to establish a relationship between a per- son’s THC blood or plasma concentration and performance impairing effects.”8 “It is inadvisable to try and predict effects based on blood THC concentrations alone, and currently impossible to predict specific effects based on THC-COOH concentrations.”9

Expert Testimony

In addition, the services of an expert may be useful to disprove impairment. The expert may be a physician, prefer- ably a toxicologist, or another qualified professional with the education, back- ground and experience to serve as an expert on the issue. There are several issues for the expert to consider. Marijuana impairment is not the same as alcohol, thus, detection is not the same and cannot be correlated. Marijuana has many psychoactive components – most notably is THC – and numerous non-psychoactive components that do not cause intoxication. THC is immediately taken up by fat cells and is released slowly over time which is generally not a contributor to intoxication, but is a reason why it can be detected so long after consumption.

There is difficulty in accurately establishing an absolute correlation between some measured value and intoxication. Behavioral tests may or may not have been performed to compliment the drug test. Are the behavioral tests reliable or subjective? Some states have instituted legal limits of THC, which is not based on intoxication or impairment, but a zero tolerance drug policy.

Can a Colorado Employee be Terminated for Using Medical Marijuana in Compliance with Colo. Const. Art XVIII, §14 Off Premises and Off Hours?

The sentinel case currently awaiting decision by the Colorado Supreme Court on medical marijuana and employee rights is Coats v. Dish Network, LLC. Mr. Coats is a wheelchair-bound quadriplegic victim of an automobile crash. He has a valid medical marijuana license under Colo. Const. Art XVIII,

14. He was employed by Dish Net- work, LLC (Dish) for approximately three years handling telephone calls. He had good employee evaluations and no disciplinary actions. He used marijuana for tremors and to help relax at night so he could sleep. He never used marijuana on Dish premises. He never used marijuana during work hours. He was never under the influence of marijuana at work. Mr. Coats was fired from his position after testing positive for marijuana which Dish claims was a violation of its drug policy. Since the case was dismissed at the trial court level, there was very little discovery. There was no other reason given by Dish for his termination.10

Mr. Coats brought a wrongful termination claim in Arapahoe County District Court alleging violation of Colorado Lawful Activities Statute,

C.R.S. §24-34-402.5 which states “It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer and during non-working hours ….” His complaint was dismissed for failure to state a claim and Dish’s motion for attorneys’ fees in the amount of about $44,000.00 was granted.11

Mr. Coats appealed both rulings, and the court of appeals announced its decision on April 25, 2013. The court of appeals determined Mr. Coats’ state- licensed use of marijuana was not “lawful activity within the meaning of the Lawful Activities Statute.”12

The next question before the court of appeals was whether a federally prohibited but state-licensed medical marijuana use is a “lawful activity” under C.R.S. §24-34-402.5. The court concluded that such activity is not “lawful activity.” The Lawful Activity Statute is an employment discrimination provision of the Colorado Civil Rights Act which prohibits an employer from discharging an employee for “engaging in any lawful activity off premises of the employer during non- working hours.” The court disagreed with Mr. Coats’ argument on the plain language of the law that his use was a “lawful activity” because the state’s statutory term refers only to state and not federal law, and finding no legislative intent to extend employees’ protection to those engaged in activity that violate federal law.13

The court of appeals determined

24-34-402.5 is not an invasion of privacy tort and does not exhibit sufficient general tort characteristics. Thus, the court reversed the trial court’s decision granting attorneys’ fees to Dish under C.R.S. §13-17-201.14

Mr. Coats pled the single Lawful Activity Statute claim which is an employment discrimination provision of Colorado Civil Rights Act. Mr.

Coats’ complaint did not refer to or imply a tort claim. The only damages specifically requested were back pay and benefits, which are the sole remedies authorized by Lawful Activities Statute. The court rejected Dish’s argument that the Lawful Activity Statute was analogous to a claim for intrusion upon seclusion and an unreasonable disclosure of private facts. The court continued its reasoning in determining that in contrast to the broad compensation for pain and suffering, harm to reputation, emotion distress and other injuries which are often available in a tort claim, the Lawful Activity Statute authorizes only back pay and benefits that would have been due absent the discriminatory termination. Thus, Dish’s request for attorneys’ fees under §13-17-201 on appeal was rejected.15

Judge Webb wrote a compelling dissent in Coats arguing that “lawful activity” under the Lawful Activity Statute should be measured by state law, and the use of medical marijuana is permitted under the Colorado Constitution, thus, making it a lawful activity under Colorado law. Judge Webb argued that Colorado criminal law is not coterminous with federal criminal law. The Lawful Activity Statute does not define “lawful activity,” thus, making the statute ambiguous because the phrase could incorporate state law, federal law or both. Judge Webb also argued that the court’s reliance on the dictionary definition of “lawful” was misguided, cautioning that dictionary definitions must be used as sources of statutory meaning only with great caution. For these reasons, Judge Webb looked at “the spirit of the statute and not simply the letter of the law.” In the case of the Lawful Activities Statute, the legislative discussion of off-duty conduct reflected a desire to protect employees’ autonomy in their off-the-job activities, such as smoking and eating patterns that led to obesity, as opposed to empowering employers to discharge employees. Judge Webb furthermore agreed with the dissenting opinion in Beinor v.

Industrial Claim Appeals Office16 where it was argued the Medical Marijuana Act establishes a right to possess and use medical marijuana. Judge Webb further argued that to be lawful under the off-duty conduct statute, the conduct may not rise to the level of a constitutional right, and the use of marijuana in compliance with state law is “lawful” under the Lawful Activity Statute.17

The [Medical Marijuana Act] MMA states: “The patient’s medical use of marijuana, within the following limits, is lawful.” Colo. Const. art. XVII, §14(4)(a).

The so-called Blue Book refers MMA in terms of “legally possesses” and “legalize the medical use of.” Colorado Legislative Council, Research Pub. No.

475-0, An Analysis of 2000 Ballot Proposals.

Enabling legislation states that the MMA “sets forth the lawful limits on the medical use of marijuana.” §18-18-406.3(1)(f),

C.R.S. 2012.

A division of the court of appeals has recognized under §18-18-4- 6(1), C.R.S. “A patient’s medical use of marijuana within the limits set forth in the Amendment is deemed ‘lawful’ under Subsection (4)(a) of the Amendment.” People v. Watkins, 2012 COA 15,

, ¶23, 282 P 3d. 500.18

Judge Webb would reverse the dis- missal of Mr. Coats’ off-duty conduct claim, and concurs with the majority’s conclusion that Dish is not entitled to recover attorney fees, either at the trial court level or on appeal.19

Note: Shortly before publication, the Colorado Supreme Court affirmed lower courts’ rulings that businesses can fire employees for the off-duty use of medical marijuana. We will publish an article about the ruling in the next issue.

American with Disabilities Act

Another compelling issue in employment matters and marijuana is the application of the Americans with Disabilities Act (ADA).20

To establish a prima facie claim of discrimination under the ADA, a dis- charged employee must prove 1) that he has a disability, 2) that he was qualified for the job from which he was discharged, and 3) that his discharge was the result of his disability.21 In cases involving medical marijuana use, the question arises whether or not an employee has a disability under the ADA.

In Zenor v. El Paso Healthcare system, Ltd., the Fifth Circuit addressed whether the ADA excludes persons who are currently using illegal drugs from its protection. Mr. Zenor was an employee who was addicted to cocaine and unable to report to work one evening because of his addiction. He enrolled himself in the drug rehabilitation program offered through his employer. Because Mr. Zenor’s job required access to pharmaceutical cocaine, Mr. Zenor’s employment was terminated after he returned from drug rehabilitation. Mr. Zenor sued on a variety of claims, including violation of the ADA. According to the Zenor court, the ADA specifically exempts current illegal drug users from being considered “qualified individuals.” The court further determined that “federal law does not proscribe an employer’s firing someone who currently uses illegal drugs, regardless of whether or not that drug use could otherwise be considered a disability.” Noting that Texas law has a strong presumption in favor of at- will employment, the court held that the creation of a drug rehabilitation program did not create an enforceable contract granting rights beyond that of at-will employment. For contractual rights to be created, a policy must “specifically and expressly limit the employer’s ability to terminate the employee.”22 “The policy must contain an explicit contractual term altering the at-will relationship, and must alter that relationship in a meaningful and special way.”23

Since marijuana use is still considered illegal by the federal government, it seems clear that marijuana users, even those registered through a state’s medical marijuana program may be excluded from ADA protection under 42 U.S.C.

12114(a). This issue has not yet been decided by the courts and may ultimately be decided based on a choice of competing interpretations of the ADA.

Under a “competing federal interests” theory, the federal government’s current position to keep marijuana illegal would compete with the ADA’s right to provide relief for a person “handicapped” by diseases such as cancer and glaucoma that are two conditions for which medical marijuana is often recommended. While marijuana proponents could point to federal acceptance of known pain relievers such as morphine, the federal government would likely counter by asserting that these “handicapped” individuals could properly be treated with Marinol, which is a legal synthetic marijuana. Given these compelling arguments on both sides, it seems likely that any court decision will be appealed and the United States Supreme Court may ultimately be asked to decide whether medical marijuana use is permitted under the ADA.

Federal case law thus far has sup- ported an employer’s right to discharge an employee for marijuana use, even if that employee were disabled according to the ADA.24 The ADA excludes from its protection “any employee or application who is currently engaging in the illegal use of drugs.”25 The ADA recognizes an employer’s right to test for drug use and to prohibit illegal drug use in the workplace.26 The federal government’s refusal to declassify marijuana as a Schedule I drug makes it likely that ADA protection will not be afforded to employees terminated for medical marijuana use.

Can a Colorado Injured Worker Receive Workers’ Compensation Benefits for Use of Medical Marijuana?

Doctor’s order for back pain: “Smoke two joints and call me in the morning.”

This very real scenario will most assuredly drive workers compensation carriers crazy. “Do they have to pay for it?” “If so, how much do joints cost?” “Does this constitute medical marijuana?” “How do they pay?” “What if the worker goes to work high?” “Do they have any liability?” “Can the worker get fired for a positive drug test for marijuana?” Because so many states are approving medical marijuana and guidelines vary from state to state and are so vague, it has the potential for becoming a very big deal. The lack of approval from the

U.S. Food and Drug Administration and current federal law banning marijuana could be used as an argument for carriers not to pay for medical marijuana as a treatment for injured workers. Often pharmacy benefit managers have workers compensation prescription formularies that typically exclude marijuana as a permissible medication. However, carriers can still agree to pay for medical marijuana.

On the other side, federal law may not be enough to stop claims for payment for medical marijuana from coming into the workers compensation system. There are also concerns that the medication could impair injured workers while increasing compensation costs and lengthening the time period within which workers can re- turn to work. There is currently no determination that the increasingly acceptance of marijuana as a recognized treatment will increase the likelihood of its payment in the workers compensation arena. Furthermore, medical marijuana can be used in most jurisdictions under the radar of insurers, third-party administrators and pharmacy benefit managers. Workers compensation benefit systems vary from state to state, and many general employment and drug enforcement laws arise under state statutes.

Other questions: “Is the injury compensable if the claimant’s post-accident drug test is positive for marijuana?” Some states adopt the theory that marijuana is a dangerous controlled substance with no medical benefit under federal law, so it is illegal regardless of state law. Thus, if the employer can prove marijuana is the cause of the injury, most likely it is not a compensable claim. Whereas, other states adopt the theory that if marijuana is a legal medication under state law and properly prescribed or recommended by a licensed health care provider, the claimant is entitled to take it even if it was a cause of the injury, and thus, the injury is compensable. This is followed by the pervasive question-even though there was a positive drug test, how can it be determined if the claimant was impaired at the time of the accident?

Since impairment cannot currently be determined by a test and marijuana remains in the system long after it was ingested, how is it determined if marijuana was a cause of the accident?

However, even if the claim is compensable, the claimant can still be terminated/disciplined by the employer for a positive test under current Colorado law.27

A related question: “What if the injured worker with a compensable injury tests positive for marijuana, but it did not cause the injury?” The answer turns on the precise language of the law. The Oklahoma Supreme Court held that the state’s workers compensation statutes allowed employees who test positive for medical marijuana to demonstrate that such use was not the cause of the injury. If proven not to be the cause of the injury then obtaining benefits for an otherwise compensable injury would be allowed.28

“Does the workers’ compensation carrier have to pay for medical marijuana prescribed for a claimant in a state where it is legal?” As of this time, and subject to change, generally medical marijuana in most states is not a compensable benefit. No appellate court or appellate workers’ compensation appeal board has yet upheld a worker’s right to be reimbursed for the cost of medically prescribed marijuana in the state the claim was made. Language in Colorado law is typical of that in other states, including Oregon, Michigan, Montana and Vermont, which provides there is nothing in the law that requires a government medical assistance program or private health insurer to reimburse a person for the costs associated with medical marijuana. “No governmental, private, or any other health insurance provider shall be required to be liable for any claim for reimbursement for the medical use of marijuana.”29

Whereas, Washington law provides for insurers to enact coverage or non- coverage criteria for payment or nonpayment in its sole discretion. “Nothing in this chapter establishes a right of care as a covered benefit or requires any state purchased health care as defined by RCW 41.05.022 or other health carrier or health plan as defined in Title 48 RCW to be liable for any claim for reimbursement for the medical use of cannabis. Such entities may enact coverage or non- coverage criteria or related policies for payment or non-payment of medical cannabis in their sole discretion.”30 However, New Mexico law provides that the workers compensation system is required to pay for an employee’s medical marijuana in a workers’ compensation case.31

Cases run the gamut. However, at this point most workers compensation panels or judges asked to determine if payers have to pay for medical marijuana have determined they do not have to pay. Issues that are being addressed are the lack of basis of paying for medical marijuana, no formal way to pay for it like there is for other medications, no reference to state fee schedules for re- imbursement, lack of standard billing practices, Medicare set-aside, to name a few.

In California, a workers’ compensation judge ordered reimbursement to a claimant for medical marijuana. How- ever, the Workers Compensation Appeals Board returned it to the trial level with instructions to consider a state law pro- vision in the Health and Safety Code Sec. 11362.785(d) stating “Nothing in this article shall require a governmental, private, or any other health insurance provider or health care service plan to be liable for any claim for reimbursement for the medical use of marijuana.”32

In New Mexico, Mr. Maez suffered two back injuries in February and March, 2011 while working at Riley Industrial Services, Inc., insured by Chartis, Inc. Mr. Maez received temporary disability workers compensation benefits, and a workers compensation judge determined he was entitled to ongoing reasonable and necessary medical care. Mr. Maez’s physician authorized his use of medical marijuana after other treatments failed because, in part, Mr. Maez already tested positive for marijuana and would use it anyway. Thus, the workers compensation judge ruled that in this case medical marijuana was not reasonable and necessary because the physician did not “prescribe” it. However, the three judge panel for the New Mexico Court of Appeals unanimously reversed the decision January 13, 2015, finding that New Mexico’s compassionate use law allows Mr.

Maez’s medical marijuana use, and it is treated as a prescription for workers compensation. The court also relied on New Mexico law that qualifies medical marijuana as a “functional equivalent of a prescription” since it is not a prescription drug in the state. The court also determined that medical marijuana was a reasonable and necessary treatment since other treatment modalities failed to alleviate Mr. Maez’s back pain, and he was authorized by a physician to use it.33

In Iowa, a deputy workers compensation commissioner allowed an employee who was living in Oregon to recover for an Iowa workers compensation claim for medical marijuana in Oregon under Oregon’s medical marijuana laws.34

It is conceivable that an injured worker with a credible workers compensation claim who has a medical marijuana card to treat a compensable condition may be entitled to reimbursement for the medication. By example, a cancer patient with an accepted cancer claim has a medical marijuana card to stimulate appetite during chemotherapy, would have a pretty good chance of being compensated. However, at this time, that same worker could lose his job for testing positive for marijuana if a zero-tolerance drug policy is in effect with the employer even though the use was compensable under workers’ compensation.

On the other hand, the use of medical marijuana that causes a workplace injury will most likely be a bar to recovery as any other impairment. Workers compensation carriers may rely on the following arguments to deny medical marijuana benefits:

Marijuana is a Schedule I drug, and it is illegal to prescribe, purchase, dis- tribute it in the United States.

Marijuana is not FDA approved.

Medical marijuana is not approved in the Official Disability Guidelines (ODG), American College of Occupational and Environmental Medicine (ACOEM), or any of the state treatment guidelines.

The status of marijuana as a Schedule I substance prohibits the assigning of a National Drug Code (NDC) or a procedure code for billing purposes.

Workers’ compensation carriers are not currently required to cover the cost in several states, including Colorado.

Workers’ compensation carriers need to establish medical marijuana policies so claim handlers use uniform standards rather than personal opinions.

According to a study published in the Journal of the American Medical Association, it was determined that states with permissible medical marijuana had a nearly 25 percent lower annual rate of overdose deaths from opioids, including prescriptive pain killers such as oxycodone, hydrocodone, morphine and street opiates like heroin.35

In a 2008 court of appeals case, the claimant was denied continuing workers’ compensation benefits of temporary total disability because he was responsible for the termination of his employment. The claimant was released to modified employment approximately a month after his work-related injury. However, he was since terminated from his employment shortly after testing positive for marijuana. “In cases where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributed to the on-the-job injury.”36

Currently, the state of the law in Colorado is that an injured worker does not have to be compensated for medical marijuana. However, the state of the law is a moving target requiring frequent updates.

Can a Colorado Unemployed Worker Receive Unemployment Benefits for Being Terminated for Testing Positive for Marijuana at work?

In this rapidly evolving dance be- tween state and federal unemployment and marijuana law, states are divided on the issue whether or not an employee terminated for testing positive for marijuana in violation of the employer’s zero-tolerance drug policy when he has a valid and current medical marijuana card can collect unemployment benefits.

The Colorado Court of Appeals affirmed the Industrial Claim Appeals Office (Panel) decision to disqualify Mr. Beinor from unemployment benefits under section C.R.S. §8-73- 108(5)(e)(IX.5) which allows for the disqualification of unemployment benefits with “The presence in an individual’s system, during working hours, of not medically prescribed controlled substances … as evidenced by a drug or alcohol policy of the employer and conducted by a medical facility or laboratory licensed or certified to conduct such tests.” Mr. Beinor was pro se. He had a valid medical marijuana card for severe headaches under Colo. Const. art. XVIII, Sec.

14(2)(b). The deputy initially denied the request for benefits, but a hearing officer reversed the decision finding that Mr. Beinor was not responsible for the separation because there was no reliable evidence to suggest he was not eligible for the medical marijuana card or that use of marijuana negatively impacted his job performance. This determination was reversed by the court of appeals saying that the use of medical marijuana by an employee holding a registry card under Amendment XVIII, §14 is not pursuant to a prescription, and, therefore, does not constitute the use of a “medically prescribed controlled substance” within the meaning of C.R.S. §8-73- 108(5)(e)(IX.5). Accordingly, the presence of medical marijuana in an individual’s system during work hours is currently grounds for disqualification from unemployment benefits.37

Furthermore, Mr. Beinor unsuccessfully argued that he had the right to use marijuana under the Colorado constitution and was, thus, not responsible for his separation from employment.

However, the court determined that the constitutional provisions “address exceptions to criminal laws” and not broad protections of an unlimited right to use marijuana.38

There were strong dissents holding a patient’s use of marijuana for medical purposes is lawful. The language is ambiguous and the intent of the voters was to authorize the medical use of marijuana. The claimant’s lawful use of medical marijuana outside the work- place with no evidence for impairment of performance in the workplace cannot constitutionally be used as a basis for denying unemployment benefits.39

In Curry v. Miller Coors, Inc., the Motion to Dismiss was granted, upholding Beinor, because the employee tested positive for marijuana which violated the employer’s written drug policy.40

In 2011, the Colorado Court of Appeals determined the employer must comply with C.R.S. §8-73-108(5)(e)(IX.5) and

prove the “presence in an individual’s system, during working hours, of not medically prescribed controlled sub- stances.” Employer must produce evidence that the laboratory performing the drug test was licensed or certified as expressly required under C.R.S.

8-73-108(5)(e)(IX.5). The court was, furthermore, not persuaded by the employer’s assertion that this case is very similar to a precedential opinion issued by the Panel titled “Concerning Fault for Separation Caused by Off-the-Job Use of Medical Marijuana.” Department of Labor and Employment Reg. No.

11.2.16.1, 7 Code of Colorado Regulations 1101-2. In this case the employer failed to present such evidence regarding the qualifications of the laboratory, thus, the employee received unemployment benefits.41

The current state of Colorado law is that unemployment benefits are awarded on a case by case basis. However, there is law supporting the denial of unemployment benefits for a worker who tested positive for marijuana.

CONCLUSION

When is the last time the United States has undergone such an emerging shift in law, medicine, society, attitude and policy? The marijuana laws remain unsettled and are continuously being made and modified. Therefore, it is critical for the lawyer to research the latest and greatest, or not so greatest authority, before reliance.

Cathy A. Klein, M.S.N., M.S.Ed., R.N., A.P.N, J.D. is an attorney-mediator with Conflict Resolution Services, Inc., and in private practice. She is asked to mediate all aspects of marijuana, employment, personal injury, health care and hospital long-term care issues, to name a few.

Endnotes:

1 Marijuana Drug Detection Time Chart by Medical Disposables, Inc., available at does-weed-stays-in-your-system-s/1835.htm.

2 State ex rel Montgomery v. Harris, 322 P.3d 160 (Ariz. 2014).

3 Amy Berning & Dereece D. Smither, Understanding the Limitations of Drug Test Information, Reporting and Testing Practices in Fatal Crashes, NAT’L HIGHWAY TRAFFIC SAFETY ADMIN, DOT

HS 812 072 (Nov. 2014), available at www.nhtsa.gov.

4 Richard Compton & Amy Berning, Results of the 2007 National Roadside Survey of Alcohol and Drug Use by Drivers , NAT’L HIGHWAY TRAFFIC SAFETY ADMIN, DOT HS 811 175 (July

2009), available at www.nhtsa.gov.

5 Supra n. 3.

6 Id.; see Richard Compton, M. Vegega & Dereece Smither, Drug-Impaired Driving: Understanding the Problem and Ways to Reduce It: A Report to Congress, NAT’L HIGHWAY TRAFFIC SAFETY ADMIN, DOT

HS 811 268 (Dec. 2009), available at www.nhtsa.gov.

7 Id.

8 United States Government Accountability Office Report to Congressional Commit- tees, “Drug-Impaired Driving: Additional Support Needed for Public Awareness Initiatives,” February, 2015.

9 Id.

10 Coats v. Dish Network, LLC, 303 P.3d 147 (Colo. App. 2013)

11 Id.

12 C.R.S. § 24-34-402.5; Coats, 303 P.3d 147.

13 Coats, 303 P.3d 147.

14 Id.

15 Id.

16 Beinor v. Indus. Claim Apps. Ofc., 262 P.3d 970, 978 (Colo. App. 2011).

17 Coats, 303 P.3d at 155; see C.R.S. § 24-

34-402.5.

18 Coats, 303 P.3d at 157-158.

19 Id.

20 42 U.S.C. §12101 et seq.

21 Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 853 (5th Cir. 1999); See

generally Robertson v. Neuromedical Ct., 161 F.3d 292, 294 (5th Cir. 1998); Burch

Coca-Cola Co., 119 F.3d 305, 320 (5th Cir. 1997); Robinson v. Global Marine Drilling Co., 101 F.3d 35, 36 (5th Cir. 1996).

22 Zenor, 176 F.3d at 862.

23 Id.

24 Collings v. Longview Fibre Co., 63 F.3d 828, 832-33 (9th Cir. 1995) (employer’s termination of employees who used, sold and purchased marijuana on company property was upheld on the basis that the discharge was the result of misconduct, not the employees’ claims of disability).

25 42 U.S.C. § 12114(a)

26 See Id. § 12114(b), (d); See Id. §

12114(d) (2)

27 Coats v. Dish Network, 303 P.3d 147 (Colo. App. 2013)

28 Hogg v. Oklahoma County Juvenile Bureau, 292 P.3d 29 (Okla. 2012)

29 Colo. Const. Art XCIII §14(10) (a)

30 Wash. Rev. Code §69.51A.060(2)

31 Vialpando v. Ben’s Auto Servs., 331 P.3d 975 (N.M. App. 2014)

32 Cockrell v. Farmers Ins. Co. and Liberty Mut. Ins. Co., 2012 Cal. Wrk. Comp.

P.O. Lexis 456

33 Miguel Maez v. Riley Indus. and Chartis, 2015 N.M. App. Lexis 7

34 McKinney v. Labor Ready and Reliance Ins. Co. No. 5005302 (Iowa Workers Comp. Comm’r Nov. 14, 2002)

35 Marcus A. Bachhuber et al., Medical Cannabis Laws and Opioid Analgesic Overdose Mortality in the United States, 1999-2010, JAMA, Oct. 2014

36 Gilmore v. Indus. Claims Appeals Ofc., 187 P.3d 1129 (Colo. App. 2008)

37 Benoir v. Indus. Claims Appeals Ofc., 262 P.3d 970 (Colo. App. 2011)

38 Id.

39 Id.

40 Curry v. Miller Coors, Inc., U.S. Dist. Lexis 118730, 7 (D. Colo. Aug. 21, 2013)

41 Sosa v. Indus. Claims Appeals Ofc., 259 P3d 558 (Colo. App. Div. 6 2011)

A Basic Guide to Preparing for Mediation

January 26, 2016/in Articles /by Hon. (Ret.) Ken Plotz

A Basic Guide to Preparing for Mediation

Hon. Ken Plotz and Joe Epstein, Esq.

Introduction

Settlement is more of a process than an event. Proper preparation for mediation can hopefully lead to the final step in that process. If the lawyer and the client are fully prepared before a mediation session, the process of mediation is much more likely to lead to a full settlement of the issues. This article will provide the lawyer with a basic guide to preparing for mediation so the case will settle with the best possible result and the most satisfaction for the client.

Know the Law

Preparation for mediation for the lawyer is, in many respects, like preparing for trial. A thorough knowledge of the law and the facts of the case are absolutely necessary.

A good way to have knowledge of the law during a mediation session is to anticipate the jury instructions that would be used at trial. This helps counsel understand the weaknesses and strengths of the case.

It is also prudent to anticipate what jury instructions the opposing side would ask for at the conclusion of the evidentiary portion of the trial. What instructions are likely to be unopposed or opposed? What instructions would be easily supported by the facts?

Have a clear idea of the causes of action and how they will be presented to a judge and jury. This facilitates the recall of critical elements of a case during the heat of negotiations.

Marshall the Facts

Knowing the facts of a case is essential. Lawyers should come into a mediation session knowing the facts that are in dispute and that are not in dispute. This knowledge gives the lawyer the ability to help the client assess risk during the mediation process. Each fact that is reasonably in dispute incrementally increases the client’s risk.

Of course, it is not always possible to completely marshal all of this information fully and precisely before mediation. Memories change, communications are often misunderstood, there are issues of credibility, and witnesses can become unavailable. This too must be taken into account when preparing and assessing risk.

Lawyers should strongly consider interviewing some witnesses prior to mediation. For example, in a personal injury case, the plaintiff’s attorney should interview a doctor that will help prove the issue of causation. A careful interview of this type of witness can result in a more accurate assessment of the risks of a trial.

Know the Case

A lawyer preparing for mediation in a domestic relations case has a different task. First, there will be no jury instructions because there will be no jury. Second, domestic relations cases may vary from allocation of parental responsibility to division of property or debt. Division of property or debt may include business valuation or valuation of a pension. These issues almost always involve expert testimony.

Expert Witnesses

Before the mediation, lawyers on both sides need to know who the experts will be and what the experts will say. If a party comes into a mediation not knowing who the experts will be and only asserts what the hoped expert testimony will be, there is little likelihood the case will settle because the opposing side is being asked to settle based on speculation. If both sides wish to settle, expert reports should be exchanged prior to the mediation session so that both sides have full access to information necessary to evaluate the case.

Strategy

In addition to preparing for mediation as if preparing for trial, a lawyer must also give thought to mediation strategy. Often that begins with thinking about the opening offer or the response to an opening offer. This strategy should be discussed with the client before mediation. In a plaintiff’s case that involves money damages, such as a personal injury case, an unreasonably high initial offer may result in an insultingly low response.

An opening offer should have an articulable relationship to the damages suffered by a litigant, and it should be backed up by provable facts. That relationship should also be clear enough so that the mediator can express the reasoning in simple terms to the opposing party.

On the other hand, defense offers that start out too low often results in recalcitrance on the part of the opposing party to reduce an initial demand. Just like a plaintiff’s offer that starts out too high, this type of offer can slow or end a mediation altogether.

Careful thought about initial offers and responses in these types of cases often result in a prompt and fair resolution of the case and an avoidance of the game playing that unnecessarily consumes time and money.

An opening offer in a domestic relations case can be different and depends on the type of case. For example, a more collaborative process reasonably calculated to be in the best interests of the child(ren) is called for in the case of a parenting-plan negotiation.
Property settlement negotiations involving division of debt or property including pensions and businesses should be planned with the client with the idea that the end result must be equitable to both parties. Preparation should include the drafting of a proposed property settlement agreement. A lawyer who does not do this will find the other side sets the framework for the mediation.

Attorneys need to discuss the other party’s perspective with their client. What does the other party want? Why does that party want it? Articulating the other side’s position before the mediation allows both the client and the attorney to be ready with a response. What does the other party really need? Is it just money or is it more of an apology and some understanding? Finally, a discussion with the client about what the other party perceives as risk can be a useful tool.

Prepare the Client

After the preparation work is done and before the mediation process begins, it is important to have a discussion with the client about what actually happens during mediation. With a business client who has been involved in mediation and litigation before, a simple discussion about the best alternative to a non-negotiated agreement (BATNA) may be all that is needed.

However, with a client who is going to a mediation session for the first time, there are additional considerations. They need to know who will be there. For example, will an insurance adjustor be there with authority to settle? Will an actuary be there? Will all of the opposing parties be there in person? Will someone call in?

Clients need to know the mechanics of the process. They need to know whether they will be in separate rooms from opposing parties. They need to be prepared if they will be asked to discuss the issues face to face at some point. They need to know how to respond to a first offer that seems personally insulting. They need to know the session may take all day or more, and they need to be told to expect hours of down time while the other side prepares an offer or counter-offer. Finally, clients need to be reminded that in mediation there are no outright winners or losers. The settled case may result in less that what the client demanded or expected.

Anticipate the Settlement

The case law in Colorado is clear: in order for a settlement to be enforceable it must be in writing. Come to mediation with some form of written agreement with plenty of blank spaces to fill in with terms and dollar amounts. Lawyers who arrive prepared with a settlement draft avoid a long and uncomfortable wait after the case settles.

Final Thoughts

Successful settlement of a case does not always result in a happy ending. Whether the case is dissolution of marriage (pre or post-decree), a business transaction, a personal injury case, or any other type of case, most people arrive with higher expectations than they leave with.

But settlement provides for the opportunity of a creative resolution that would not be available in a trial setting, and it also means an elimination of uncertainty. This value, the elimination of uncertainty, is often overlooked in discussions between attorney and client and should be considered a significant part of the goal coming into mediation.

Mediation should be the final step to the settlement process. Good preparation, from knowing the law to anticipating the settlement, is essential in order to reach the best conclusion for the client.

HON. KEN PLOTZ – The Honorable Ken Plotz is a former Chief Judge of the 11th Judicial District. He now sits as a Senior Judge sitting throughout Colorado. For the past ten years Ken has served as a mediator, arbiter, and private judge. Ken handles personal injury, commercial, construction and domestic relations matters.

JOE EPSTEIN, ESQ – is an international recognized commercial mediator (International Who’s Who of Commercial Mediators) and recognized nationally as an employment mediator by the National Law Journal. He has published numerous articles and has been recognized by Best Lawyers, Super Lawyers, Colorado Law Week (Mediator of the Year 2011), National Academy of Distinguished Neutrals, and The International Academy of Mediators (Past Vice President). Joe concentrates his practice in the Rocky Mountain/Southwest region of the United States. He focuses his mediation practice on emotionally intense cases which include: catastrophic injury, employment, medical malpractice, nursing home, probate and wrongful death cases.

Effective Pre-Mediation Evaluation of the Commercial Case

January 25, 2016/in Articles, Mediation /by Julie Williamson Esq.

Effective Pre-Mediation Evaluation of the Commercial Case

by Charles R. Ledbetter and Julie McCurdy Williamson

Careful pre-mediation case analysis is key to a productive mediation. This article discusses important aspects of evaluating the commercial case, arriving at a reasonable range of settlement value, and making a persuasive presentation at the mediation.

“Before everything else, getting ready is the secret to success.”

—Henry Ford

Let’s say you have a business dispute that you have decided— or a judge has directed—should be mediated. How do you prepare for such a mediation to improve the chances of a settlement? Your client is not happy about bearing the cost of mediation, but is even less happy about the continued cost of litigation. The client wants to stop the bleeding, but only at something close to what it feels is the “right price.”

Truth be told—there is never just one right price for a settlement. Successful negotiations always result in a range in which the parties can find agreement. From a mediator’s perspective, nothing allows the parties to arrive at that settlement range faster than can- did and realistic case evaluations from all sides. At the same time, nothing causes more problems than unrealistic evaluations. Below are a dozen suggestions to help you prepare for the mediation with a good evaluation of the settlement range for your case.

Think of your client’s BATNA, WATNA, and Range of Reason. Determining settlement value is not an exact mathematical calculation. Nonetheless, in preparing your evaluation, it helps to think in terms of your client’s BATNA (Best Alternative to a Negotiated Agreement) and WATNA (Worst Alternative to a Negotiated Agreement). In other words, if the case goes to trial, what is the best and worst outcome your client can expect? The BATNA and WATNA should take into account not only the litigation risk, but the operational costs (for example, diversion of re- sources) and business exposure (for example, bad publicity) of proceeding to trial. Your analysis will also involve assigning relative weight to the likelihood of the best and worst outcomes. Working between those two scenarios will enable you to arrive at a Range of Reason—a range of numbers at which settlement makes sense.
Prepare your case as if preparing for trial. Although mediation is a less formal method of dispute resolution than a trial, do not approach the process casually. You need a good understanding of the strengths and weaknesses of all sides of the case. Corral your evidence—testimony and documents—and analyze the law with a view to how you plan to try the case.

If you don’t have the information you need to fully understand the case, consider postponing the mediation until you have completed the necessary discovery and legal research. Or, if you don’t have time for formal discovery, try to get the information informally. You can even use the mediator in pre-mediation discussions to try to get what you need from the other side before the mediation.

Coming to the mediation with the key evidence at your finger- tips can help. For example, in a class action mediation, the plain- tiffs’ lead attorney had all of the evidence on his laptop. He had studied the evidence and could pull up any of the key documents and deposition testimony in a matter of seconds. This ability to instantly show important evidence to the mediator and opposing counsel allowed him to recover millions of dollars more than he might have otherwise.

Study the contract. Most commercial disputes involve contractual documents. Contract terms can impact the ease or difficulty of proving liability and can limit or expand the damages recoverable. Surprisingly, counsel often have not carefully studied the relevant contract provisions. Make sure your case evaluation takes into account special contract terms and conditions, such as notice and waiver, warranties, limitation of liability, liquidated dam- ages, limitation of damages, exhaustion of remedies, choice of law, choice of forum, arbitration, waiver of a jury, and right to recover attorney and expert witness fees. Some terms, such as fee- and cost-shifting provisions, can really hurt your client if the client litigates and loses. The risk of your client having to pay not only its own fees and costs but those of the other side should not be ignored.
Objectively assess the witnesses and evidence. After you have organized the evidence, take a step back and consider the case from the perspective of a neutral decision maker hearing the facts for the first time. Don’t look at just the positive aspects of your case; take into account the strengths of the other side’s case and the weak- nesses of your own. If you are on the defense side and you know the plaintiff makes a great witness, include that in your evaluation. If your client did stupid things, address those, as well. Be sure to deal with the adverse aspects of your case in your mediation statement. A statement that addresses both the good and the bad parts of your case builds credibility with the mediator and, more important, gives you a better evaluation for your client to consider before rolling the dice at trial.
Analyze recoverable damages. A number of factors can limit or expand recoverable damages. For example, the contract itself may provide for liquidated damages and/or exclude the right to re- cover lost profits and other consequential damages. Lack of evidence may make damages difficult to quantify. The claims alleged, such as statutory violations, fraud, theft of trade secrets, and civil conspiracy, may also be important if they allow for recovery of attorney fees or punitive or treble damages. Such claims may also present different risk factors, such as joint and several liability among the wrongdoers and admissibility of evidence from co-conspirators.
Use jury verdict research. The locale where your court case is pending can have a huge impact on its value. Many jurisdictions have reasonably priced jury verdict reporter services, such as Jury Verdict Reporter of Colorado, where you can obtain similar case verdicts by venue. This information can lend credibility to your evaluation or discredit that of the other side. Of course, every case is different, but sometimes this information can be useful to reinforce the risk of going to trial in a given jurisdiction.
Consult experts if necessary. Reliable case valuation may re- quire information from one or more experts. For example, for an environmental case, you may need expert input on such issues as contamination, causation of injuries, and costs of remediation. For a contract dispute, you may require an expert to calculate lost prof- its, appraise a property, or value a business. While damages in some cases are easily calculable, an expert can often provide assurance that you have captured all available damages and establish that your damages are more than “pie in the sky.” If expert disclosures have not occurred before the mediation, you can nonetheless share the expert’s analysis with the mediator and decide whether to give the mediator permission to share it with the other side. If the case is expert-driven, consider having the expert attend the mediation in person or via Skype to make key points or counter opposing expert views. Experts can also help create summary charts and other demonstrative exhibits to convey information persuasively to the mediator and the other side.
Consider insurance and other resources. The collectability of a potential judgment is always important in setting settlement value. The availability of insurance and applicable policy limits may be key. The amount of a defendant’s own assets also may be significant; don’t assume the financial stability of the opposing party. Legitimately obtaining financial information on most companies is relatively easy in our information society. Services or programs such as Westlaw’s Investigator’s Tool or TLO may provide useful information beyond the credit bureau reports. In addition, consider whether the defendant has other sources of funds, such as family members, off-shore trusts, or affiliated entities. These funds may be available to pay an agreed-upon settlement, but may be difficult or impossible for a judgment creditor to reach. If the financial stability of your client and/or a possible bankruptcy filing could be a factor in settlement, you may want to be prepared to provide certified financials at the mediation to prove your point.
Think about the decision makers at trial. A complex business dispute pending before an arbitrator with subject matter expertise may well be valued differently than one to be heard by a jury or by a judge with little commercial experience. The particular judge assigned to the case may also impact the settlement value, so gathering information about the judge’s background and propensities can be useful.

The forum can also impact the cost of continued litigation. If you are in arbitration, the case may or may not be cheaper to prosecute or defend. Also, if trial is in an out-of-state venue, you will need to factor in travel and lodging costs and the cost of hiring local counsel. Include these considerations in your mediation thinking and litigation budget.

Consider the impact of critical motions. Frequently, resolution of one or more pending motions can significantly change the case evaluation. In fact, some litigators file motions for summary judgment or motions in limine shortly before the mediation to gain leverage. Consider whether you want to know the ruling on those motions before the mediation. In some cases, uncertainty as to how the court or arbitrator will rule makes settlement more likely. How- ever, if the parties are not willing to factor the odds of winning or losing the motions into the evaluation calculus, you may need to postpone mediation until you know the outcome. If you think pending motions provide a significant bargaining chip, be prepared to argue the law and have copies of key cases for the other side.
Calculate the cost of continued litigation. Litigation budgets, although torturous to prepare, are useful tools to inform your client of the potential financial cost of not settling. Many cases settle partly or wholly because the cost to pursue or defend them is just too high. Spend the time to prepare a thoughtful and detailed budget (with appropriate caveats for unexpected events) of what it will cost to try the case, including post-trial motions. Knowing this information will not only help the mediation process but may also enhance your client relationship. No client likes to be hit with un- expected legal expenses as trial approaches.
Understand the drivers toward and the obstacles to settlement. Figure out what other interests or concerns are driving the parties to settlement or, alternatively, are standing in the way of settlement. For example, if the defendant is subject to multiple law- suits, would settlement enable it to avoid the precedential value of an adverse judgment? For example, is settlement desirable because an adverse finding at trial on a fraud claim would endanger the defendant’s ability to enter into government contracts or obtain financing? On the other hand, does the defendant face professional consequences if it settles (for example, required reporting) that would be avoided if the defendant won at trial?

As part of your analysis, consider the identity of the person(s) who control settlement for each side. For example, a corporate executive who implemented the business practice that caused the lawsuit may be concerned about losing face or status within the corporation if settlement is seen as admitting wrongdoing. Similarly, the plaintiff may have such anger toward the defendant that it is emotionally hard for the plaintiff to accept any settlement other than complete capitulation. All of these factors, while not measurable mathematically, can impact the reasonable settlement range of a given case.

Conclusion

Once you have done all this work, don’t forget to share your assessment of the case with the client before the mediation. Give your client the opportunity to carefully read your pre-mediation statement before you send it to the mediator. If your pre-mediation evaluation is significantly different from one previously given to the client, explain the differences. The mediation itself is not the time to surprise the client with unexpected news. If the client doubts your assessment, ask the mediator to address, and hopefully support, the new evaluation. At the same time, emphasize to the client that your valuation range is not set in stone and that some flexibility will likely be needed to get a deal done. As the mediation progresses, you and your client will need to continually reassess the client’s position, particularly if it becomes apparent that some additional movement will put an end to the dispute.

Whatever your evaluation of the case, try to be compassionate and considerate of those on the other side. In a recent products liability case, in-house counsel for a major automobile manufacturer started the mediation by asking to meet with the plaintiffs, who had been badly burned in an accident. He told them how sorry he was they had been injured so terribly. He said that the only thing that his company could offer at this point was money and he wanted to explain that before the negotiations began. This simple gesture of compassion and empathy allowed his company to settle the case that day for a reasonable sum, while other defendants did not. Expressing genuine understanding of and sympathy for the other side’s situation can go a long way.

You can now head into your mediation secure in the knowledge that you are thoroughly prepared. Hope that the other side has done its homework, as well. Let the discussions begin.

What mediators really want to hear

April 1, 2006/in Articles, Mediation /by Joe Epstein Esq.

Three veteran mediators tell what you should do and say to put your best foot forward in negotiations.

Mediation is a very different setting from trial. Instead of a judge or jury, you must persuade a mediator–as well as your opponent–to reach a settlement.

So how should you approach a mediation? What really persuades a mediator? What demonstrative evidence should you use? What mistakes are sure to derail your negotiations?

To answer these questions, TRIAL brought together three respected mediators to discuss their “dos and don’ts” for trial lawyers. Judith Meyer, a former litigator and now a mediator and arbitrator with JAMS in Philadelphia, served as moderator of the discussion. John Leo Wagner, a former federal magistrate judge, is now affiliated with Judicate West in Los Angeles. Joe Epstein, a former trial lawyer, is a mediator with Conflict Resolution Services in Greenwood Village, Colorado. Here they discuss how you can present your most persuasive case in mediation.

Meyer: Going into a mediation session, what really helps a mediator?

Wagner: What helps me is getting information from the lawyers before mediation, ordinarily in the form of a brief. I generally also ask for a confidential memo of things they want to tell me but don’t want to tell the other side. And when I can do it, I push for premediation conference calls with each lawyer.

It’s helpful to get a fix on where the emotional content lies. Who’s angry at whom?

Epstein: Preparation–by the parties and by me–is key. I try to start out with an e-mail to all the parties, asking for a thumbnail sketch of the case, who they think should be present, and any key issues that might affect my thinking about the case and how to design the mediation. Then I call the parties individually and, using the information they’ve given me, work with them to design the mediation. Sometimes I set up conference calls with all the parties. For example, I did a multiday mediation in Salt Lake City that was a multiparty case. It required meeting in advance with each party for a couple of days and then having meetings that adverse parties attended together.

If we’re lucky, the parties submit confidential mediation statements that I also use to help design the mediation. I ask people to send those a week in advance, but sometimes they don’t come until just a few days before the mediation, and that’s too late to be of help in designing the mediation.

In some communities, a mediation statement is confidential and is given only to the mediator. In other communities, there’s a more open practice of making it available to the other side. I have developed the practice of recommending that each party provide a mediation statement to the opposing party and give me only those things that they prefer not to share, so there are fewer surprises at the mediation.

Meyer: I, too, start with individual private calls–I refer to them as separate caucus calls or private caucus calls–with the lawyers. I sometimes meet with each lawyer and his or her client, and sometimes I meet with the client alone if the lawyer wants that, just to get a feel for who the players are and what they expect from a mediation. I ask the parties to exchange anything they want to exchange with each other, but anything they don’t want to exchange is kept confidential.

In their confidential mediation statement, I want them to tell me what they think both sides’ impediments to settlement are; what they think the other side’s goals are; what they would like to accomplish, not a bottom-line statement, but their general goals; and how they think we can all get there.

I want to know whom they want to talk to. If the defendant is a corporation, it’s rarely possible to have a CEO attend the mediation, but if the plaintiff wants the CEO there, the defendant has to make some effort to show the plaintiff that they understand this and that they will send an appropriate substitute. And of course, a person who’s a “hot button” for one side should probably not be part of the joint sessions.

In one multiparty construction case I handled, the lawyers asked that I meet with their experts before any of us got together so that I fully understood each side’s position.

Wagner: We often do that in environmental cases, either that or have a premediation meeting between the experts. They may not agree on the various technical issues involved, but at least they get an opportunity to hear where the other side’s expert is coming from.

Meyer: What materials should the advocate bring to the mediation? What should he or she provide to the mediator (or other side) beforehand?

Epstein: I have seen a lot of PowerPoint presentations. In my general experience it’s a mistake for either party to wait until the mediation to provide these to the other side, because frequently the decision-maker is a CEO or other high-level employee who does not appear at the mediation. However, having said that, I have seen very powerful presentations in insurance bad-faith cases.

I think the most effective demonstrative exhibit at a mediation is the party or the parties, particularly in personal injury cases. I encourage the attorneys to step back and let their client be the spokesperson. I encourage them to prepare their client for the mediation and let him or her influence the opposing client.

Wagner: It’s helpful, particularly in personal injury cases, if the parties provide information regarding attorney fees and liens that will be paid out of the settlement funds, because these often factor into the settlement equation. Also, they should bring recent court rulings that aren’t included in the brief they’ve submitted to me. If they are relying on a particular case, it sometimes helps to bring a printout of the ruling with important points highlighted.

I agree with Joe on the PowerPoint presentations. In the mediation of a case in Nevada involving high-dollar electrical power contracts, the plaintiff attorneys absolutely insisted on a long PowerPoint presentation the first day. It took me another 12 days of mediation to undo the damage that was done.

Elected members from the defendant electrical power authority board attended and were offended by the content, tone, and length of the presentation. They thought less of me for permitting it and were angry with their lawyers because they did not have a similarly aggressive presentation. They felt persecuted, misunderstood, poorly represented, and abused.

They became dead-set against any settlement and communicated their position in no uncertain terms to the remainder of the board. The offended board members refused to participate further, and different members attended the following mediation sessions. Those not personally exposed to the PowerPoint presentation were persuaded to support the concept of settlement. But because it was an election year in the company and the presentation had already poisoned the well, the mere “willingness to settle” became a political issue, even without any specifics as to what the settlement would or could be.

So, I learned the hard way that even a well-done PowerPoint presentation can be the kiss of death. It takes up a lot of time, and it’s likely to raise the emotional content in the case. Besides, many presentations are not interesting or well done. They are usually boring and pedantic–and that’s the real reason people resist sitting through them.

Despite their drawbacks, I have also seen PowerPoint presentations work fairly effectively. If someone says they have a PowerPoint presentation, I encourage them to provide it to me in advance. I screen it, and if there is some value to it, I usually recommend that they provide it to the other side in advance. This avoids needlessly expending precious mediation time and unnecessarily inflaming the parties’ emotions.

Meyer: That leads to an obvious next question: Do you give people a schedule of presentations in advance so that one party doesn’t go on for eight hours?

Wagner: I usually put time limits on any presentations. Of course, the initial inquiry is whether we are going to allow presentations at all. In recent years, I’ve stopped doing opening sessions where the parties lay out their entire case. I now usually conduct joint sessions only later in the mediation process when they can be focused on specific issues.

Epstein: That’s the route I’ve gone as well. If I haven’t met with the parties in advance, I have a cup of coffee with each of them at a private caucus at the beginning of the day. Then I focus my general joint session on key issues. I may suggest that they bring an expert along to discuss a key issue, but I suggest limiting the time for each expert.

Meyer: It’s always useful for a personal injury attorney to bring in a day-in-the-life video, especially if it’s a wrongful death case. There’s one attorney in Philadelphia who does that routinely, and those are generally very powerful. It’s a preview of evidence to come if the case goes to a jury. With evidentiary materials, I’d rather have more than less–not that it all will be presented, but the materials are there if needed.

It’s always useful for advocates to highlight materials if they are going to provide them to the mediator or to the other side. There’s nothing like looking at a 20-page document and wondering just where the relevant paragraph might be.

Meyer: What else should the advocate be sure to do to prepare for each mediation session?

Wagner: The first thing is, get your own house in order. When several lawyers represent one party, they should decide who’s going to be the lead counsel. Who’s going to be the good cop, and who’s going to be the bad cop? Who’s going to provide information, and who’s going to make the legal arguments?

Once the lawyers have their game plan down, then they need to coordinate with the client and make sure the client is integrated. If the clients need to be buffered, they need to decide how that buffering process is going to take place and who’s going to do it, and coach the clients so they know how to take cover during the mediation if they need to.

The lawyers need to evaluate the mediator. Is the person a weak or strong mediator? Is he or she overbearing? Lawyers must modify their tactics to accommodate the type of mediator they have. For example, if the mediator is a sitting federal judge who is determined to get the case settled at the expense of your client, it is imperative that you make him or her go through you to communicate with your client and that the client not be left alone with the judge in a room. You act as the buffer between the overbearing judge and your client.

If you have an obstinate client and a talented private mediator, you may want to arrange for a private session between them, so that the mediator can put the client through a “reality session.” If you have a weak mediator who is about to let a desired settlement crater, you may want to meet privately with him or her and give suggestions as to what to try next.

Epstein: One thing lawyers need to do beforehand is to try to imagine what the opponent’s expectations are, what their frame of reference is, what they might be feeling. They also need to consider the spiritual component that exists in the case and how that may or may not be addressed in the mediation, particularly in wrongful death, employment, and catastrophic injury cases.

Meyer: Do you think most lawyers are comfortable with the spiritual component in mediation?

Epstein: Many lawyers do not address this component of the case. I imagine that some don’t do so because it makes them uncomfortable, while others don’t think it’s necessary. In any event, when I feel it is appropriate, I do so in a direct or an indirect fashion.

In a wrongful death case involving a Cherokee woman, I was able to reach her in a different way because of my background with Native American tradition. I let her give voice to her grief, shared in the moment with her, putting the case aside for a moment, letting her process her grief during a caucus.

When a person becomes a paraplegic or quadriplegic, there’s a real loss of self. How do we touch that? How do we acknowledge that? You don’t always have to verbalize that acknowledgement. It can be felt. I think people can feel other people’s compassion.

As a plaintiff attorney, I used to feel that I gave a part of myself for each of my clients. I’m willing to do that even now, and to me that’s part of what mediation is about. I’ve decided that I’m willing to talk about this component of mediation and not worry about people’s reactions.

Meyer: I think that takes courage. I always hope that counsel will prepare for mediation by reminding themselves to view the process as a joint problem requiring a solution and not a competition to win or lose.

I hope they remember to be respectful and civil, even when they are provoked. I want them to be able to say that they won’t necessarily use every legal argument available to them, because they’ve come with the intention of putting their best efforts into reaching a settlement. I want them to understand that although they are crafting a settlement in the shadow of the law, the legal positions will just be wallpaper in the background. I want them to expect the other side to be as pragmatic and forthcoming as they hope to be.

Wagner: This whole discussion assumes that the objective of the mediation is to settle the case, but that’s not always true. Sometimes the objective is to use the mediation for other tactical or strategic purposes. Advocates should think and talk with their client in advance about what the objective is–what are they trying to accomplish? And I think it’s smart for the advocate to share that with the mediator, because you can have a mediator really trying to get something settled when it’s pretty clear that the objective is not to settle the case.

Epstein: In catastrophic injury cases, sometimes the defense will want to gather some discovery, while the plaintiffs are geared up to resolve the case. When parties come with different expectations, cases don’t resolve and it becomes very difficult to get the parties back to the negotiating table.

Meyer: Right now I’m in the middle of an employment mediation where the money issues have been settled but the corporate culture issues have not. The corporation is falling more and more silent, stonewalling at this point, and I’m not sure they came in with the intention of seriously looking at their corporate culture through the eyes of a suffering employee. The employee and her attorney are becoming angrier rather than calmer.

Wagner: I always ask during the premediation process and early in the mediation: What is the objective? What are you here to do? What are your expectations? What do you want to accomplish? The defense may say, “We want to do some initial exploration, but we don’t really think it’s going to settle at this stage. We want to establish a line of communication, do a little discovery, and start learning about the case from the plaintiff.” But then the plaintiff says, “We want to get it done today.” Your job is fairly clear at that point–you have to start reducing the plaintiff’s expectations. Maybe you give them an early out or an option not to do the mediation at that point. I think you have to do damage control.

Epstein: That is why premediation discussions with the parties are so important. If we can ascertain the parties’ expectations in advance, we may realize we first need to get the parties on the same page regarding their goals.

Meyer: Do you find demonstrative evidence helpful in mediation sessions? What kinds of demonstrative evidence might you encourage and what kinds might you discourage?

Wagner: I like photographs and chronologies. These help me get a better grasp of the facts.

Epstein: I agree.

Meyer: If contracts are involved, I like to have them made available to all parties, with the sections that each party is relying on highlighted. Also, bring and highlight any memos or e-mails that are going to be discussed.

If the parties say, “We haven’t produced this in discovery,” I say, “Well, if it’s the kind of thing that will be produced in discovery eventually, why wait? Why not produce it now if you’re serious about resolving your case?”

Meyer: How should the advocates begin the negotiation? Should they wait for the mediator to set the protocol? Who should make the first offer? How do you get the process rolling?

Epstein: I think a lot depends on what type of case it is and whether there was any negotiation outside of the mediation session.

Generally, I recommend that plaintiffs make a demand before the mediation, especially in large personal injury cases. In other cases, they may want to wait until the mediation and listen to the other side before making their demand. In insurance-based cases, I suggest that the larger the case, the sooner the plaintiffs should make their demand package available to the other side, because it has to go up through different layers of authority. Also, the amount of the demand may affect who has to come to the mediation because of different levels of coverage.

Wagner: When I was on the bench, I experimented with different approaches. I would order the parties to exchange a demand and preliminary offer before the mediation session. The parties sometimes used these for tactical purposes. For example, a plaintiff might make a large demand that was unreasonable in the context of the case, and then the defense would use that as an excuse to try to scuttle the mediation effort. Other times the plaintiff might make a good-faith offer that was so low the defense would crawl all over it. If I can, I coach the parties on the numbers in advance. They need a place to start, and the initial numbers that get thrown out generally don’t have much credibility anyway.

I want to know what has happened between the parties before the mediation. I want to know what numbers have been informally discussed over coffee. I want to know about any loose talk, such as, “If you would do this, maybe I can get my client to do that.”

Epstein: Here are some questions I ask people, after we’ve had some time together at the mediation. To an adjuster who’s never met the plaintiff before, my first questions are, “What have you learned here today? What’s your reaction to the plaintiff? How does that affect your evaluation?” When the defendant gives me a settlement number, I frequently ask, “What message do you think that number sends? What do you think is being telegraphed to you by the number being demanded of you?”

Not that I don’t coach and suggest settlement figures, but I like to make the parties work at it–it’s their negotiation, not mine.

Meyer: What advice can you give advocates about what to do–or not do–in mediation?

Wagner: I tell them not to be a one-trick pony. Some lawyers’ one tactic is to walk out of the room–in one day, they’ll walk out 20 times. Or there are the ones who keep announcing that we’ve reached their client’s bottom line. You’ll go through 25 bottom lines during the course of the day. I just don’t think those are very effective tactics. So when I see someone getting into one of those counterproductive grooves, I talk about one-trick ponies. Some people know how to negotiate only one way, but it helps to be more flexible.

I think the primary thing that advocates need to do is evaluate the mediator. Find out what kind of mediator they have and ask, “What are your ground rules?” Some mediators will say, “I tell the other side everything unless you tell me not to.” Others will say, “Everything is confidential unless you give me permission to convey it.”

Also, is there a pipeline back to the trial judge or somebody else? Are things that happen in mediation going to be reported to anybody? Is the mediator willing to talk directly to the trial judge? Some are and some aren’t. That can be a problem or an opportunity.

Epstein: First, you have to show respect for your opponent, the mediator, the mediation process, and your own client. A negotiator also has to be prepared to be patient throughout what may be a tedious process. The process is really important to clients, particularly to someone who’s not sophisticated in the world of mediation, someone who’s not been there before or would prefer not to be there, such as the employee in an employment case.

I think it’s also important for parties to think about how they can give recognition to underlying issues, things it would be difficult to assign a dollar value to.

Meyer: Here’s my short list of worst practices: Refuse to bring the client. Don’t tell the client what the process is about when you bring them. When you bring the client, don’t let him or her speak. Refuse to allow the client to speak to the opposing client. Refuse to allow the mediator to speak to the client. (I had one mediation in which the plaintiff was the widow of a man who died in a plane crash, and I was told, “You may not approach her or speak to her.” She could not engage in any of the negotiation. That lawsuit did not settle.)

More ways to sabotage a mediation: Continually allude to your ability to win at trial and your eagerness to do it. Schedule the mediation for a full day and then announce after an hour that you have to leave in two hours. Insult your opposing counsel–that’s always a wonderful tactic. Arrive at the mediation without having thought through what you want. Arrive either without a necessary person or with an obstructive person whose presence is not necessary or is inflammatory.

Meyer: What approaches have you found particularly persuasive? What tactics have you seen advocates use that have backfired? And finally, what role should the client play?

Wagner: I think the low-key approach generally works best, where you have strong advocacy presented in a nonaggressive way. It seems to me that the most experienced mediation advocates adopt that approach.

PowerPoint presentations and day-in-the-life films can backfire, particularly if the party brings it the day of the mediation and insists that it be played there. It really needs to be done in advance.

The role of the client depends on the client. The general counsel of a Fortune 500 company probably will take an active part and will be the main negotiator. An illiterate widow of a railroad worker may take more of a back-seat role.

One of the things that consistently works is candid and frequent communication with the mediator. I like the advocate who comes in and says: This is my case. These are my strong points. These are the problems I have with the case. This is where I’m willing to go. We’re approaching it flexibly, but at this point, this is what we’re thinking. Chances are that lawyer’s clients will get the result they were hoping for.

Epstein: I have three stories to tell you. One was an impasse in a medical malpractice case involving failure to diagnose breast cancer. That failure substantially increased the patient’s likelihood of death. She had been a patient of the defendant physician for years.

When we reached an impasse, I put the parties together without lawyers. With everyone’s consent, the physician, the patient, and I met alone, and as the physician turned to the patient, she said, “I’m sorry” and started to cry. The patient started to cry, and said, “That’s all I wanted to hear.” They hugged each other, and it brought me almost to tears. The impasse was broken and the case settled.

Let me mention another one–a wrongful death case involving a very young child. The parents took the child to the emergency room several times, but the rural health care facility kept sending the child home, saying, “Don’t worry, it’s just the flu.” Ultimately, the child became so dehydrated that the personnel at the health care facility couldn’t establish an intravenous line. By the time they got the child from that facility to a larger one, the child died. This happened in a small rural town where people know each other. The hospital staff as well as the parents and the community were all devastated.

At the mediation, my strategy was to put the hospital administrator and the parents in a room together with their attorneys and me. After several sessions, the hospital agreed to design a risk-management program to prevent similar incidents, to provide counseling for the family, and to provide financial remuneration for the wrongful death.

The last story involves an RV fire. Some of the plaintiffs–members of an extended family–were trapped inside a burning RV while other members of the family stood helplessly outside. I met with the plaintiffs before the mediation and discovered that they wanted an opportunity to tell their story to the insurance adjusters and defense attorneys who had not heard from them.

They told the story, which was incredibly dramatic. Can you imagine being inside an RV, knowing that it’s burning and that you are likely to die if you stay put, but that the only way to get out is to go through the fire? Well, with the telling of the story, this case settled.

I believe it’s important for the plaintiffs in catastrophic injury cases to tell their stories because that’s the most important evidence. And if an adjuster has not met the plaintiff, he or she has not had the opportunity to evaluate how a jury will react to the story. As Annette Simmons says in her book The Story Factor, it’s the story, not data, that counts. ?

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Current State of Marijuana and Employment Issues: A Moving Target

A Basic Guide to Preparing for Mediation

A Basic Guide to Preparing for Mediation

Effective Pre-Mediation Evaluation of the Commercial Case

Effective Pre-Mediation Evaluation of the Commercial Case

What mediators really want to hear

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