MEDIATION MERRY MIXUPS-RELEASE OF ALL FURRIERS

In the COVID 19 legal world, virtually all proceedings have become, well, virtual.  Motions, depositions, settlement conferences, case evaluations, mediations and some trials are Zoom affairs.  While jury trials may come back as in person proceedings after the pandemic, sadly I think remote/virtual everything else is here to stay.  For most, convenience trumps, if you'll forgive the word, all other considerations.

I have written many times about my preference for in person proceedings for everything. Few exceptions. Michigan Lawyers Weekly recently ran my article The Thrill of the Grass, on this subject.  For those who can't follow the previous link (you don't have a MLW subscription) the article also appears here on this site.

I am a mediator and I feel my peculiar talents in this field are best suited to in person hearings.  Harder for the adjuster to say no to your face than by phone from the comfy desk across the country.  Harder to connect with a plaintiff when they are on the phone from their kitchen/living room/basement.

Communication also suffers when attorneys are multitasking and negotiating by phone, or text, or email. Misunderstandings result and may take a long time to clear up.  Some don't.

I was mediating a case last Friday.  Small case but nonetheless extended Zoom sessions, emails, and phone calls over several weeks.  I was the most motivated party in this mediation as I didn't want it to get to Judge David Allen that I couldn't settle this one.  I told one of the attorneys so, in writing.  I predicted Judge Allen saying, "That no good Butler couldn't settle this case?  He'll never mediate in this town again!"

In PIP cases, insurers often request a settlement with a full release of past, present and future claims.  Sometimes the future release may be for only certain benefits or certain medical providers.  This issue did come up in negotiations, which had moved from phone to email exchanges.  The insurer wanted the settlement to include a release of past, present and future claims.  That was conveyed to the plaintiff lawyer.  After some time, he responded with a counter demand with this: "Plaintiff will release all furriers".  This had me scrambling for my 2019 No-Fault amendments and DIFS bulletins.  And, by gosh, the new No-Fault Act and the DIFS, see link here, to furriers as Section 3157 providers.  And providers subject to fee schedules which went into effect on July 1, 2021.

Being a full service mediator, I did some additional research, and discovered-no surprise here, that furriers are not part of the Medicare price structure.  Therefore, fur providers are limited to charging only 55% of what they charged, on average, as of January 1, 2019. 

I discovered that the fur industry was outraged by the changes.  Firstly, the new law did not differentiate among stoles, jackets and full length coats, not to mention coats merely trimmed with fur.  And to make matters worse, the "average" to be used was for skunk and muskrat, further slashing the income of mink and ermine providers.  Sadly, this is the kind of chaos to be expected from a statutory scheme drafted in haste, so as to be in time for the 2019 Mackinac Policy Conference.  The weather was nice, I was informed.

I conveyed the results of my research to the parties in a lengthy email.  Shortly thereafter I was informed by plaintiff's counsel, that he had meant to write "futures" rather than "furriers", the latter being an unfortunate autocomplete error overlooked in the haste of multitasking.  If "furrier" was preferred to "future" on the attorney's device, he must be doing quite well.

The case did settle shortly thereafter.

I decided not to bill the parties for my No-Fault furrier research.  But, would this misunderstanding have occurred in an in person proceeding?  I think not.  And there, perhaps, is a lesson for us all.

I should put a "Humor Alert" somewhere in this post.  The furrier autocomplete was real, but the subsequent text is fictional-though I haven't checked DIFS today.