Oregon Personal Injury Lawyer Blog

Mediators fantasize about converting fierce opponents into genial joint problem solvers. However, in the real world of personal injury and other lawsuits for money, mediators must help parties who respond to demands by shouting, "That's insulting! Don't they realize. . . ?" Mediator J. Anderson Little shared his strategies for facilitating resolution of such disputes in his book, "Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes." Little's ideas are useful to both mediators and advocates who negotiate civil lawsuits over money.

Little's primary message is, Have a plan for movement. Before attending mediation, consider where you will to start and end the negotiations. Plan the moves you will make to achieve settlement within your authority. During mediation, consider what message you communicate with each offer and how to avoid miscommunication.

A large part of a mediator's job is to help the parties process their negative reactions to unrealistic offers. Usually, one party will open with a unrealistic offer. The mediator can discuss with the offeror the reasons for the too-high (or too-low) offer and identify the benefits and risks of such an offer. If, nevertheless, the party wants the mediator to present an outrageous offer, then the mediator must help the other side control their negative reaction. One approach is to talk through the pros and cons of the following options: (1) get up and leave, (2) make a counteroffer that is similarly outlandish, (3) or, in effect, ignore the outrageous demand. Pretend that the initial offer was reasonable, and counter with what you would have offered, anyway.

"The greatest motivation of the parties to settle is the perception that the case can settle. And the greatest impediment to settlement is the perception that the case will not settle," observed Little. If parties begin negotiations on opposite planets of, say, $800,000 and $8,000, then they feel discouraged from making offers in a "real" range. One common response is to make small moves -- $780,000 and $8,200 -- thereby trying to pull the other side toward a real range and trying to avoid a signal that you're willing to split the difference. Small moves breed small responses. On the other hand, a big move will often motivate the other to make a significant move, too. "The solution to getting better movement then, is counterintuitive. The way to get movement is to make movement," says Little.

There's a time in most mediations when litigants get discouraged about the chances of resolution. "We're not getting anywhere!" Or "We've made our best efforts." As litigators, the optimism with which we began the day has soured into fatigue, frustration, and anger that the other side is so pigheaded. However, from my own experience as a litigator, it is during this last phase of the mediation that we can best serve our clients. Everything before was just the preliminary ritual. Now, the real negotiations begin.

Continue reading "How to Mediate Insured Claims and Other Monetary Disputes" »

Skiers, tubers, snowboarders, tobogganers and others pay for the privilege to play in the snow. Sometimes they suffer serious personal injury or wrongful death. Oregon law has different rules for lawsuits by skiers. One says it's on the skier if he or she gets hurt from an "inherent risks of skiing." Another requires a skier to notify the ski area operator of his or her injury within 180 days or else lose the right to sue (ORS 30.970 - 30.990). But what about the other people who get hurt, including snowboarders? Do the regular lawsuit rules apply to them?

Unless the Oregon Supreme Court ever rules on the question, we won't have a definite answer. I'm not going to try to answer the question. I only want to raise some questions.

Oregon enacted its skiing statute in 1979, before anyone was snowboarding. One part says "an individual who engages in the sport of skiing, alpine or nordic, accepts and assumes the inherent risks of skiing insofar as they are reasonably obvious, expected or necessary." Another part requires 180-day notice of "an injury to a skier." These provision do not mention other people injured on the slopes, whether it is someone walking into the lodge and hit by a tuber, or any other person.

On the other hand, a "skier" "means any person who is in a ski area for the purpose of engaging in the sport of skiing or who rides as a passenger on any ski lift device." So, is the "walker" a "skier" if she is in the area for skiing but not for tobogganing? Who is covered as a "passenger?" What was the legislature's intent? What if a boarder is hurt on the first run from the lodge and never used the ski lift?

Have the risks of injury at ski areas changed since 1979? When skiers AND snowboarders share the runs, does that increase the risk of injury? As a skier, do you feel scared when boarders are zooming all around you? One part of the law defines "ski area" as "any area designated and maintained . . . for skiing." Do the operators lose some of their protection by opening up the area to activities other than skiing?

When interpreting statutes, courts follow big-picture guidelines. One of those guidelines says that when a statute changes or limits common law rights, then the courts must not stretch the statute to cover something else. Because Oregon's ski statute changes the common law, the courts cannot stretch it. One court dealt whether its skier law could be stretched to cover a tuber. In that case, the New Hampshire Supreme Court held that their state's ski law did not cover a tuber on a snow tubing run.

The take home message is that if a ski operator tries to use Oregon's ski statute against you, then you need to make sure that the statute really covers the situation.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Brad Avakian is the Commissioner of Oregon's Bureau of Labor and Industries. Yesterday, he shared with me and several other attorneys around a conference table what he's doing to ensure BOLI does a better job of enforcing discrimination laws.

Commissioner Avakian started with the statistics. BOLI receives 25,000 to 40,000 calls per year from people who believe they have suffered discrimination in employment or housing. 2,000 to 3,000 people file formal complaints. Of those formal complaints, BOLI finds substantial evidence of discrimination about 10% of the time. That means BOLI spends a lot of its scarce resources investigating the other 90%. So, Avakian's goal is to (1) unburden innocent employers and landlords faster, (2) spend less agency time on the cases with no merit, and (3) fully investigate and prosecute cases of serious sexual harassment cases or other truly bad conduct of employers or landlords.

Here's the new program. Discrimination complaints will be categorized as A, B or C cases. "C" cases are the ones that seem to have no merit on their face. Instead of requiring the employer to prepare a formal response, BOLI will dismiss the case and issue a "right to sue letter." The letter gives the accuser 90 days in which to file a lawsuit if the accuser thinks she has a case worth pursuing in court.

"A" cases are those that BOLI believes are likely to have the most merit and will be investigated thoroughly. "B" cases will get more scrutiny than "C" cases, but might also be dismissed faster than the norm. Over the past several years, it seems like it takes about 11 months to resolve wrongful termination or other employment discrimination complaints. With the new system, some complaints will be resolved right away and others shortly after filing. This will benefit employers, who will not have to waste their time on cases with little apparent merit. It will benefit taxpayers, because BOLI will spend fewer tax dollars investigating crummy cases.

But most important, the new system will help fulfill the goals of Oregon's anti-discrimination law. More time will be spent enforcing the law against bad actors.

Commissioner Avakian is doing what Republicans and Democrats should both like: he's doing his job better with less money.

Jeff Merrick, Oregon Trial Attorney
Personal Injury & Employment Law
503-665-4234

Last week, a Portland, Oregon jury found that Les Schwab Tire Center should have paid assistant mangers overtime wages, and that these employees averaged 66 hours per week. The case illustrates that the job duties determine whether an employee gets overtime pay; it is not the job title or only whether they are paid a "salary." The verdict determined the liability phase. Another phase of the trial will determine the dollar amount due.

The final verdict will likely be multimillion dollars. considering the following. The decision could impact up to 200 workers, who averaged $4,000 per month in wages. For the additional 26 hours per week, Les Schwab will likely owe about $3,900 per month per employee. A court may double the wages due as a penalty, unless the employer can prove that it operated in good faith. Other penalties may be at stake, too. Plus, the employer will have to pay the attorney fees of the employees.

Oregon and United States law controls hours of work. Generally, employers must pay workers 1½ times their normal rate of pay for hours worked more than 40 in one week, unless the employees are "exempt" from the law. Here are a few of the general exemptions:

EXECUTIVES and SUPERVISORS, who (1) direct the work of at least two employees, (2) play a big role in hiring and firing employees, (3) customarily exercise judgment or discretion, as compared to being told what to do, (4) management is their primary duty, AND (5) their salary exceeds a certain threshold. Apparently, the decision in Les Schawb had much to do with whether these "assistant managers" are primarily managers or mostly ran around changing tires.

Also exempt are PROFESSIONAL EMPLOYEES, who must meet several tests. A partial list, includes (1) they perform work that requires advanced knowledge customarily acquired by a prolonged course of study, (2) perform work that requires invention, imagination, originality, etc., (3) teach in a school system, practice law, or medicine, and (4) their primary duties are the professional duties.

Others who are exempt, include, (1) outside salespersons, (2) casual babysitters, (3) certain agricultural workers who meet the criteria, (4) seasonal employees summer camps for nonprofit organizations, or for profit businesses that gross less than $500,000.

The above is just a partial list. For more information, the US Department of Labor publishes information on the Fair Labor Standards Act. Oregon's Bureau of Labor and Industries publishes information on the Oregon's Overtime Wage law.
BOLI answers some overtime pay FAQs, too.

Sometimes, the problem with overtime wages arises after the employer fires a person. When people contact me thinking they suffered a wrongful termination, we will sometimes discover a violation of overtime pay laws. A careful lawyer should look for both issues when hired by an employee.

Jeff Merrick, Oregon Trial Attorney
Personal Injury & Employment Law
503-665-4234

"Getting Past No," is William Ury's sequel to "Getting to Yes," the classic book on how negotiators should bargain. "Getting Past No" provides basic strategies on how to deal with difficult people and situations. In other words, the book tries to answer the question of what to do if the other side does not "play nice." This post highlights some of Ury's key concepts. My one-sentence summary is: Be the adult in the room, and keep your attention focused on your goal, which is to achieve a result superior to what you will likely achieve without settlement.

Successful negotiators turn adversaries into problem-solving partners. Author Ury identifies five barriers to such cooperation. (1) Your own emotional reaction to the adversary's conduct. (2) The other side's emotion, which might include anger, hostility, fear, distrust, or the feeling that they are right and you are wrong. (3) Their efforts to state a position and insist that you give in. (4) Their desire to avoid losing face by accepting your proposals. (5) Their power and lack of interest in cooperating.

Ury offers strategies to address each of the five barriers. The first is to "Go to the Balcony," his metaphor for looking at yourself and the situation as an observer rather than as a fighter who naturally reacts. Once on the balcony, (a) you name the tactic used by the other side, whether stonewalling, attacking or tricking, (b) give yourself a chance to think, and then (c) determine your best strategy for response, which, hopefully is, "Don't get mad; Don't get even; Get what you want."

The response is what I call being the adult and what Ury calls, "Step to their Side." Use your best listening skills. Agree with and acknowledge their feelings and their points, to the extent you can. Measure your words and tones so as to not provoke a negative response in an effort to create a better environment for negotiating.

Step three for Ury is to "reframe" rather than reject. Ury provides strategies and examples of how to get the other side off their positions and how you can deal with their tactics. His examples throughout the book draw from many situations: from international diplomacy, to business negotiations, to parent-child discussions. This section of the book offers useful reminders to litigators of the different mindset we must have when our goal is to convince an adversary to do something as compared to winning before a judge or jury.

Step four is to "Build Them a Golden Bridge," between their initial position to a mutually acceptable place. Ury identifies obstacles to agreement, including (1) it was not their idea, (2) their interests are not met, and (3) their fear of losing face. Here, the biggest mistake a negotiator makes is to downplay the importance of the process or ritual of negotiations and to announce that he has divined the correct solution. A skilled negotiator takes a step-by-step approach and involves the other side. Give them the opportunity to leave their positions in a face-saving way.

The last step is to use your power to educate the adversary, not to escalate the battle. Sharpen the choice between the face-saving settlement and the consequences of no settlement. Begin with reality-check questions: "What do you think will happen if we do not agree?" Then, "warn, don't threaten." Such subtleties convert negotiation from a skill to an art. A threat is what you will do to them. A warning is an objective and respectful statement of what will likely happen. Continue to contrast the choice between the opportunities of settlement to the consequences of no settlement.

The overall message I received from "Getting Past No" is that negotiation is a process and ritual. To succeed one must:

- Identify your adversary's tactics.
- Identify and control your own visceral response.
- Be the adult and try to guide the other side to a sensible outcome.
- Stay focused on the goal: to improve upon your likely alternative to settlement.

Jeff Merrick, Attorney & Mediator
503-665-4234