A series of articles emphasizing practical
knowledge you can't find in practice guides
and interviews with experts who share
their techniques for effective and efficient
Articles emphasizing practical knowledge you
can't find in practice guides
Profiles of people who changed workers’
• Marjory Harris
Negotiation and settlement, what do they mean? These are
not words some of our clients want to hear. These are not words
some attorneys want to acknowledge. But these are ideas
and actions necessary for the Workers’ Compensation
system to exist and move forward.
Too often, we attorneys lose sight of our clients’ needs
and goals. I believe that many times we do not communicate the
goals of the case in a concise manner, thereby confusing our
clients and limiting options for case resolution. Our clients
and we put ourselves in corners, which prevents timely case
From an applicant’s standpoint, what is the benefit to
the injured worker by keeping the file open and languishing?
Would it not be better to get these people out of the system
and back to work, if possible? From the defense standpoint,
keeping files open is one way of continuing a flow of income,
but that is only for the short term. When clients believe the
files are churned, they pull the files or stop sending new files.
They lose confidence in their attorneys and in the system.
Negotiation is a process used to reach mutual agreement. It
is an art, not a science. The process may be between two parties
or several parties; it may be cooperative or competitive. But
in either instance, the objectives must be based upon an understanding
of the facts and law.
In a cooperative setting, the negotiation process satisfies
the needs of the parties; attempts to provide the best value
for each party; apportions risk to achieve the goals of each
party. In a competitive setting, the parties evaluate the best
value based upon a demand; evaluate various criteria for case
resolution and evaluate conditions for settlement.
In the workers’ compensation setting, many times I see
and hear attorneys attempting to use the competitive model of
negotiation. However, many times either one or both of the parties
have not thoroughly evaluated their cases and make demands without
any objective basis. Other times, parties attempt to use the
cooperative model without fully evaluating their clients’
needs and requirements.
In order to successfully negotiate and settle a claim, the goals
need to be clear. We should analyze the underlying interests
for the demand/offer, determine and communicate priorities,
and assess our opponent’s priorities.
Negotiating settlements involves power, time and information.
Power is the ability to exert control over another. One is able
to use various options over an opponent’s options. Power
involves legitimacy of position, expertise, judgment, credibility,
confidence and persuasive communication. The party with more
power needs to know when and how to use it. If you are not credible
and not confident in your position, you put yourself behind
the eight ball.
Time involves a party’s urgency to achieve a result. The
party with more time may have an advantage over a party who
is in a hurry to resolve the claim.
Information requires the parties to know the needs and wishes
of each side. Is there an urgency to achieve a result? One can
pick up clues of an opponent’s needs by the way they act,
and by knowing the concession history of the other side.
In an earlier writing, we discussed civility and the lack of
it at the WCAB. Conflict management is an important tool to
resolve cases and move on to the next matter. Avoid reaction
and do not take your opponent’s actions personally. Acknowledge
your opponent’s message and seek clarification on parts
of the message you do not accept. It is perfectly correct to
agree with parts of your opponent’s message, if you agree
In the cooperative settlement process, collaborative discussions
amongst the parties avoid missing simple or advantageous solutions.
Build up an investment in the process of other parties and use
consensus and collaboration to settle your case. Unfortunately,
in some instances, our own clients see this form of settlement
process as weakness. They ask why we are not fighting hard enough.
They ask why we are advocating for the opponent’s position.
This is not a form of weakness, but a tactic used to resolve
conflict and cases. Our clients must understand the tactic is
used to facilitate the goals which have been established.
In the competitive settlement process, one may exploit one’s
strengths and the opponent’s weaknesses. However, at times
it is advantageous to compromise your strengths to secure an
agreement. Such an accommodation may be used as a basis for
future settlement negotiations.
In settling our cases, we need to know our goals and the goals
of our clients. We need to know the facts to support our positions
and not run the risk of a loss of credibility. From a defense
standpoint, support your position by providing notices, reports,
letters, EOBs, bill review documents, witness statements, etc.
If money is due, then acknowledge it and negotiate the sum using
a process most likely to provide an advantage for you and your
Be civil and avoid personal attacks. Such tactics build walls
which are difficult to overcome. In a recent case involving
restitution, my opponent agreed to reimburse my client a substantial
sum of money on the day of trial. Although there were many frustrating
moments, knowing the law, providing a trial brief prior to the
trial and outlining our position in an effective manner resulted
in the settlement. Had the matter gone to trial, appeals would
have kept the matter open for a long time and perhaps established
some bad precedent that neither defense attorney wanted.
Keep the faith and see you at the Board.
Michael G. McDonald is the founder of McDonald
Law Corporation in Concord, California and a Certified Specialist
in Workers' Compensation Law, State Bar
of California. He is a Director for the California Workers'
Compensation Defense Attorneys Association.
For more information, click
Michael G. McDonald, Esq.
McDonald Law Corporation
1800 Sutter Street, Suite 430
Concord, CA 94520-2563
Voice: (925) 363-4380
Fax: (925) 363-4352
Other locations: Sacramento, San Jose and Fresno