ROBERT G. HEYWOOD, Esq. OAKLAND, CALIFORNIA
I’ve been a mediator in over 1,000 workers’ compensation and related cases for over 20 years and have participated in hundreds more as an advocate. During this time, I have occasionally heard attorneys tell their clients something along the lines of, “If everyone goes away unhappy, it’s a good settlement.” Even worse, I’ve heard mediators say, “If everyone goes away unhappy, I’ve done my job.”
In my experience as a mediator, statements like this are just plain wrong. When I hear an attorney say things like this to a client, I immediately do my best to persuade them not to. There is every reason to believe and expect that a well-conducted mediation will result in a resolution that everyone will be not only satisfied with but also genuinely pleased about.
In fact, I go into every mediation expecting that (1) the case will settle and (2) everyone will be happy with the result of a settlement they themselves have helped craft. The key to achieving this is an interests-based approach combined with a facilitative, rather than evaluative, approach to mediation. In other words, a resolution that meets the needs of each party achieves our goal of resolution with satisfaction. In fact, the reason I find mediation so satisfying is that, following a mediated settlement, injured workers can move on with their lives, knowing they had actively participated in the process.
For the injured worker and the worker’s family, the benefits of resolution are of course personal. They have the peace of mind of getting out of the litigation and benefit- delivery system, which they often see as oppressive and unresponsive to their needs. The worker can put together a resolution enabling them to control their own medical treatment, without utilization review and bill review requirements. They can set up a lifetime, tax-free income stream by using a structure that guarantees protection to family members (in contrast to an award, which dies with the injured worker). Mediations offer creative choices not available in a workers’ compensation system trial, where the judge has only the option of deciding whether there is a need for future medical care and what the percentage award will be.
Of all the benefits of mediation, getting out of the workers’ compensation system and having a sense of control over their own lives are, for many, the most important reasons driving resolution. These workers don’t want to face a lifetime of dealing with workers’ compensation challenges, such as delayed or denied medical treatment. It is not an understatement to say that settlement can give workers their lives back. I often equate a worker’s engagement in litigation with their carrying around a backpack full of cement. With resolution through mediation, the worker can shed that backpack and move on. That alone is often therapeutic.
I hasten to point out that for most injured workers, the system works just fine. Skilled and caring examiners and employers deliver medical and indemnity benefits swiftly and accurately. Those are not the cases that reach my desk. I see only the most challenging ones, where the parties need the assistance of a trained mediator. I say “traineď” because I am a believer in mediation training. Professional training focuses on the mediation process and the psychology of dealing with obstacles to resolution, which helps mediators better understand the needs of the parties and how to get to the desired resolution
For defendants, resolving the case through mediation allows them to “stop the bleeding.” That is, they can settle cases-including problematic or challenging ones that might otherwise be open for another 20 or more years— and close the file, release reserves, and turn their attention to other matters.
I know that many examiners are interested in helping the injured workers whose cases they handle. With a mediated settlement, they, too, can have the satisfaction of knowing that a seriously injured worker can have a better life, with financial and medical concerns addressed, because of the settlement.
For the mediator, listening well is the most significant element of conducting a successful mediation. For many injured workers, mediation is the first time they can talk to someone who really takes in what they’re saying. Telling their story to a disinterested and sympathetic listener provides a “day in court” experience that helps prepare them psychologically for moving on and resolving their case.
All parties understand that in mediation we work together. We can all see the advantages of at least attempting to derive a resolution that works for all rather than having a decision imposed on the parties by a judge who has not lived with the case as they have.
The facilitative approach involves the mediator listening and working with the parties to find out what they need that is, their interests, which may or may not be expressed strictly as an amount of money. Then, all participants work to identify the available options. Interests and options may be developed in the joint session or in breakout sessions, or even outlined in the pre-mediation statements the parties submit.
This approach works best when the parties themselves, rather than the mediator, put forth the options. Then everyone can discuss, modify, and fine-tune options to get to resolution. If the interests of both parties can be achieved which is what happens in a well-conducted mediation-everyone goes away happy.
Note that in the facilitative approach, the mediator should resist answering questions such as, “What do you think this case is worth?” The mediator should try to refrain from taking a value position; this way, the mediator can avoid being seen as an advocate for a particular resolution and instead be perceived as impartial. However, comments such as, “In other cases like this, I’ve seen awards or settlements in the range of…” may be productive. Late in the day, a facilitative mediator may become more evaluative or even, by agreement of the parties, make a mediator’s proposal, although there are technical requirements for that.
In contrast to the facilitative approach, the evaluative approach involves a mediator being much more involved in suggesting the value of a case and then using persuasion to get the parties there. In many cases, this is the approach favored by litigants who want a respected figure (often a retired judge) to review the evidence and give a candid assessment of the value of the case. While this mediation method can work, a high satisfaction level and everyone going away happy are, in my opinion, substantially less likely than through use of the facilitative approach.
As a mediator, I find nothing more gratifying than seeing everyone go away genuinely pleased with what we have achieved together. That is what everyone going into mediation should strive for and expect. With that goal in mind, these are the points to remember:
- Expect resolution.
- Expect satisfaction from all parties.
- Use a trained mediator who is an active and sympathetic listener to all parties.
- Determine interests.
- Have the parties develop options and use the mediator to sort out how best to achieve those interests.
- Work together to draft the terms of the settlement, making clear what is to be done, who’s going to do it, and when it’s going to be done.
You can apply everything discussed in this article to both in-person and Zoom mediations. Following these suggestions, you are likely to have the wonderful experience of resolving a complex case, leaving the mediation pleased with the outcome, and knowing everyone else is happy with it, too.
Robert Heywood is a mediator in Oakland specializing in complex workers’ compensation cases in California. He has written extensively on media- tion for the Quarterly. His website is www.heywoodmediations.com. He can be reached at email@example.com.
In addition to “TEN NEW TIPS FOR GETTING THE BEST RESULTS IN MEDIATION”, Workers’ Compensation Quarterly Vol. 30, No. 4 (2017), see Robert Heywood’s article at Vol. 28, No. 3 (2015), “Eight Quick Tips for Applicants and Defendants to Improve Their Mediations”