Breaking Barriers to Justice
The biggest problem for plaintiffs in any high-value case against Kaiser is the difficulty in obtaining a large monetary award in addition to a finding of liability, where the “neutral” faces the indirect pressure to not offend Kaiser with a significant award. A suggested solution includes requesting a bifurcation of the arbitration between liability and damages. Kaiser will more likely settle any case in which they perceive liability. If an arbitration panel finds liability, but has not yet determined damages, Kaiser will more than likely want to settle that case. In the last three-party arbitration that I did with a severely brain injured child, there was no offer prior to arbitration or even after the evidence was finished. The arbitration panel met to discuss the case, and after the panel decided liability in favor of the plaintiff, the neutral suggested coming back the following week to discussdamages. With a finding of liability, the Kaiser party arbitrator immediately wanted settlement discussions, leading to a significant demand (which Kaiser then paid). We had presented all the evidence during the arbitration, including damages. The neutral knew that any award after a finding of liability would likely result in her being black balled by Kaiser for future arbitrations. By announcing her decision on liability and then suggesting that discussion on damages be put off for a week, it allowed Kaiser’s party arbitrator to recommend to Kaiser that they settle the case, giving total control of the case to the plaintiff. After the neutral made a finding of liability, if Kaiser did not pay the demand, Kaiser faced a possible substantial award. The neutral avoided the stigma of being responsible for a substantial award by delaying discussion on damages and allowing the Kaiser party arbitrator to
broker settlement discussions. A substantial recovery for plaintiff gets recorded as a settlement rather than an award, and the neutral keeps a “clean” record of not making a significant award against Kaiser. If a high-value Kaiser case were formally bifurcated before arbitration, which would also shorten the days needed for evidence, and the panel then found liability, the case would either be settled (if Kaiser offered a reasonable sum), or it could proceed to a hearing on damages. This would allow the plaintiff to decide which route to take and thus have full control rather than Kaiser. If the plaintiff proposes that the case be bifurcated, it is not likely that Kaiser would oppose. They have nothing to lose, especially in a no- offer case where Kaiser thinks they can win on liability.
In a bifurcated jury trial, the jury must first find liability after all the evidence on liability is presented.
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Consumer Attorneys of California
FORUM July/August 2026
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