Undoubtedly, mediation is the most effective way of settling workers’ compensation disputes, with numerous advantages over litigation.
But talking about mediation theoretically is different from comprehending its practical aspects.
Below is the comprehensive guide to help you understand how mediation works in practice.
The mediation process is informal and flexible, which sets it apart from more formal arbitration and rigid litigation. Nevertheless, mediation consists of several stages, although the process may look different from case to case, depending on the mediator’s approach and work philosophy.
The process usually starts with an introduction. In this stage, the mediator introduces themselves and gives the parties their credentials – an opportunity to learn more about the mediator’s style. Following an introduction, the parties offer their opening statements. Each party then goes to a separate room for private talks (caucuses) with the mediator. The mediator goes back and forth between the parties, hearing their arguments and estimating their positions. The mediator cannot share the details with the other party unless authorized. After caucuses, the parties (an injured worker and the insurance company representative) and attorneys gather in joint sessions with the mediator. As mentioned in a separate article, the employer does not participate because the insurance company covers the employer’s financial interests. During the joint session, the parties bring offers and counteroffers. The mediator facilitates the negotiations to reconcile the parties.
Apart from knowing the process, you should know that mediation is a non-binding dispute resolution method. The mediator is not authorized to issue a binding decision to resolve the dispute. Their role can be facilitative, evaluative, or transformative. But they never resolve the conflict. In facilitative (traditional) mediation, mediators facilitate negotiation between the parties, encouraging them to solve the conflict by exploring the causes of workers’ compensation disputes. Mediators never reveal their own opinion in facilitative mediation. In evaluative mediation, mediators are likely to express their views (or make recommendations) regarding the case. The evaluative mediation approach is a part of court-mandated mediation, where mediators help parties resolve the dispute by giving suggestions. Transformative mediation encourages parties to transform their views and initial arguments so they can settle.
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Finally, the mediation process is highly confidential, meaning that the parties and the mediator sign the confidentiality agreement, preventing them from sharing the information disclosed during the mediation process. Confidentiality applies to potential litigation.
In mediating workers’ compensation disputes, there is certain information you need to know before enrolling in the mediation process. Giving the mediator such information is vital. As a starting point, you must state your date of birth and the date of a workplace accident. Furthermore, you should be aware of your temporary total disability (TTD) rate and temporary partial disability (TPD) rate, as well as permanent partial disability (PPD) ratings. This information is crucial and should encompass the number of weeks paid to the claimant and the remaining weeks for payment. In Florida, the law obliges employers (or insurance carriers) to pay temporary disability checks for a maximum of two years. Depending on the severity of your disability, your payment amount varies. Total disability injury renders an employee unable to perform work-related tasks (temporarily), while temporary partial disability injury causes partial disability, enabling the worker to work with a diminished capacity. Earning ability varies in both cases, affecting the benefits rates. If your claim is related to a catastrophic event, determine the approximate amount of benefits over your lifetime. Knowing the facts of your case and the precise (or at least approximate) amount of your claim will help the mediator in the settlement possibility estimation.
Do not let the informality of mediation deceives you – it is not as rigid as litigation, but that does not mean you should not take it seriously. Prepare for the sessions because the level of our preparedness determines the mediator’s success in helping you resolve the dispute. The mediator can facilitate your negotiations only if you know what to negotiate. Appearing at mediation sessions without supporting materials will make you look like you do not care about the case. To avoid that, prepare your opening statement carefully, outlining your arguments in brief but concise sentences, with as much information as possible while staying within reasonable time limits. In doing so, rely on documents from your case file. Always have relevant documentation supporting your claims, especially during negotiations. When bringing offers or counteroffers, keep your documentation at hand so that you use precise numbers and technical information related to your case. Make sure you never rely solely on memory.
The very mention of mediation brings up associations of bargaining. Bringing offers and counteroffers is the critical stage of mediation. The mediator’s role is to facilitate negotiations between the parties, helping them reconcile, but you should nevertheless do your part and prepare for negotiations. As part of your negotiation strategy, ensure to enter into the mediation process with a positive attitude. That will give you a psychological advantage while making the opposing party more open to your proposals. Know your BATNA (Best Alternative To a Negotiated Agreement) – before engaging in direct negotiations, be clear about the last offer you are willing to accept. BATNA is your plan B – the best second option if you cannot get the desired outcome. It is the lowest compensation benefit you can take to resolve the dispute and still feel satisfied. WATNA (Worst Alternative To a Negotiated Agreement) is your worst-case scenario – a settlement amount you cannot accept. Finally, it helps to know your Most Likely Alternative To a Negotiated Agreement (MLATNA), so you can determine the most likely outcome if you refuse settlement. Knowing your best alternative, most likely outcome and the worst-case scenario gives you a sense of stability in negotiation. An experienced mediator helps parties determine their BATNA, WATNA, and WLATNA, enabling them to identify the strengths and weaknesses of each position. Staying aware of the boundaries of the acceptable settlement will help you realize that sometimes mediation is not the solution and that you should take your case to trial. Another way to secure a positive outcome of negotiations is to put yourself in the other party’s position. Looking at the dispute from the other party’s point of view will help you understand their position. A glance at their perspective will allow you to adjust and eventually change your initial stance. You will settle your workers’ compensation claim easier if you can put yourself in the other side’s shoes.
Mediation is not about winning the case and imposing total victory on your opponent. After entering negotiations, prepare to change your initial claims because no settlement is possible if both parties remain in the same positions. The dispute is a result of different views on the same matter. In compensation cases, workers and insurance companies disagree over the compensation benefits or other aspects of a worker’s claims. When you enter a negotiation, you start from opposite and distant positions. If each party stays with its initial arguments, there can be no agreement. Each must be willing to adjust to the other party’s offers and vice versa – that is the only way to move forward in negotiation. The settlement resolving the dispute comes as a result of giving away your initial stance and approaching the other party until you agree. Being flexible is not enough, be patient, as well. Sometimes settlement seems out of reach, and your negotiation positions look irreconcilable, but when you think of quitting, a breakthrough happens (especially in workers’ compensation negotiations). Workers deal with insurance companies and their attorneys, skillful in bargaining. Their job is to keep you in negotiations until you abandon most initial positions, accepting the unfavorable settlement – that is why you should persevere in your strategy, even if talks do not seem fruitful at first sight. Also, consider hiring an attorney to assist you in the negotiation process.
You know how hard it was to reach a breakthrough in negotiations. You wanted to abandon the entire process at one point, but you persevered. However, you should be aware that an oral agreement (once reached) has a limited duration in your memory. Parties tend to prolong the drafting part, engaging in off-subject conversation. Remember that each word of your agreement required enormous effort from both sides. Do not postpone finalizing it – draft it while it is fresh, ensuring that the written draft reflects all the points you agreed on. Use concise words, avoid ambiguous phrases, and carefully check each clause, correcting any potential errors. When both parties agree that the text corresponds with their oral agreement, they should sign it with the mediator. That is how to avoid any misunderstandings and contradicting interpretations. Be aware that most contractual disputes arise due to unclear expectations resulting from inaccurate phrases and misleading language.
The Mediation Group comprises certified Florida mediators specializing in workers’ compensation disputes. Our experts are well-versed in all the nuances of compensation negotiations related to workplace accidents.
Knowing how mediation works in practice is the first step. To reap full benefits, call us today to schedule your appointment.