Published in the Workers’ Compensation Quarterly of the Workers’ Compensation Section of the State Bar of California, Vol. 30, No. 4 (2017)
With mediation becoming a more widely used tool in workers’ compensation case resolution,
here are some suggestions which will help you get better results and lead to a higher percentage
of cases being resolved at mediation. This is a follow-up article to “Eight Quick Tips for
Applicants and Defendants to Improve Their Mediations” which appeared at Volume 28, No.
3 of the 2015 Workers’ Compensation Quarterly.
- Do the mediation on neutral turf. Certainly a mediation can be successful no matter where it takes place, but if the mediation takes place in an advocate’s office, there is a tendency—perhaps unintentional—for more skepticism and reluctance to settle when you are in one side’s office. There is also the potential for distraction with the temptation to turn to other matters when full attention should be devoted to the mediation. Most mediators can offer satisfactory conference space.
- Start in the morning. If you are doing a half-day mediation, you will get better results if you start at 9:30 a.m. rather than 1:30 or 2:00 p.m. In the afternoon, parties are tired and ready to call it a day as 5:00 p.m. draws near. Positions harden and sometimes necessary decision makers are harder to reach. When you start in the morning, the parties are fresher, are more likely to be flexible, and there may be an opportunity to come back for an afternoon session.
- Book a full-day mediation: Just as I advocate starting in the morning, booking only a
half-day mediation in a complex case may be false economy. You are there to get the job done, i.e. leave with a settled case. Even better, you want a settled case where you do all the paperwork on the spot. That’s tough to do in a half-day where you are likely to run out of time. When you know you are coming back in the afternoon, there is not such a rush to conclude in the allotted morning time. A lunch break allows the parties to reflect on what they have learned in the morning and come back refreshed ready to resume productive discussions. If you can settle the full-day case in a half-day, you got what you wanted—the settled case. If you realize in the morning that you are at a true impasse, no one wants to waste any more time. In this situation, you should not hesitate to ask that any unused time be made available at future time at no additional cost to the parties. This compensates the mediator for the reserved time, and also lets the parties know that everyone is committed to working to resolve the case without subjecting them to more fees.
- Make sure everyone who needs authority can be reached. This means having the cell phone numbers of anyone in the settlement hierarchy. Productive mediations go beyond 5:00 p.m. You don’t want to lose the chance to seal the deal simply because someone can’t be reached. Those in the hierarchy need to know that the mediation is happening and not be caught off guard in the event of a late call.
- Don’t be rushed. At the mediation there should be plenty of time for everyone to say and cover everything that needs to be talked about [another reason to book a full-day mediation]. Someone who feels rushed is unlikely to settle the case. Having that “day in court” experience is crucial to getting the parties to “yes” and leaving them with a sense of mutual satisfaction. Since mediations can be intense, don’t hesitate to ask for a break to collect your thoughts or just to lessen any tension in the room. This may involve getting some fresh air, calling a friend, having a cigarette, or whatever it takes to keep the productive process moving forward. Additionally, at the end of the day when we have reached a settlement, I want everyone to go home and be satisfied that they have a result that works for them. One of the great things about mediation is that when done right, everyone can go home happy.
- Terminology. This is almost always the applicant’s only case. When we, as practitioners, are throwing around the specialized terms and alphabet soup phrases we use all the time in workers’ compensation, there can be a sensation that the applicant is left out, and that other people are making decisions about his/her life. You can avoid that by making sure the applicant either understands what you are talking about or is comfortable asking for an explanation of what is going on. The involved applicant is one who is more likely to be psychologically ready to settle.
- Structures: This settlement technique offers great opportunities for creative resolution of many cases. Often I see each party come to the mediation with a structured settlement professional. I welcome this as it shows both sides are serious about settlements and it potentially gives the applicant more choices about what is best to do with the money. However, don’t waste your time presenting structured settlement offers that only show how much will be paid out. What everyone wants to know what is the cost. What are you offering? That will be the basis for the applicant’s attorney fee. From this point, various options can be explored with differing amounts being used for up-front money, guarantees or whatever best suits the needs of the injured worker and his/her family.
- Get your MSA approved in advance. MSA approval is much faster these days. Having the MSA approved by CMS [assuming you are in a position where you feel you need to have CMS approval] substantially ups the odds that you can reach a complete settlement. Without approval, it’s just a guess as to whether you can get the case settled since very few defendants will give a blank check for an unapproved MSA. My experience is that most larger MSAs are structured, so having an approved amount will help the structure folks determine how much seed money is needed and how much will be paid annually using annuity information including rated ages.
- Don’t ask the mediator what is the settlement value of the case. Often fairly early in the proceedings, one party will ask what I think is the settlement value of the case. I do not want to answer that question even though I may be quite capable of doing so. First of all, I know far less about the case than do the attorneys. I assume everyone is there to learn and to adjust their positions over the course of the day. I also may very well be wrong about the value of the case. I do not want to be seen as being an advocate for one side or even for my own position. This does not mean I refrain from giving the parties a dose of reality when I think it is needed, but this is usually framed in terms of likely outcomes if the case is tried. I am not fond of the so-called “mediator’s proposal”, but if it’s late in the day, and I think the parties would benefit from one in terms of convincing those with authority—both applicant and defense—and the parties ask for one, I will suggest a resolution. However, my preference is to stay on the facilitative rather than the evaluative end of the continuum.
- Always think about your ATNA. What’s an ATNA? Alternative To a Negotiated Agreement. What will happen if you don’t settle? If you don’t settle at the mediation, the case will go on with the attendant hazards, delays and costs of further litigation. Are you better off getting the job done at the mediation? Usually so. The defendant wants a closed file and wants to avoid years more of litigation with new medical reports, depositions and vocational expert expenses. Plus many of these cases present the very real potential for life pensions. The applicant wants to move on with his/her life and get out of what he/she sees as the oppressive medical delivery system with UR and IMR. Settlement is the vehicle to accomplish that. One done through mediation may present desirable options in terms of structures with or without a guarantee.
Hopefully, these ideas will offer some guidance in terms of getting the best results in your mediations. Having handled thousands of cases as an advocate and now as mediator, it remains the case that a close file is the best file.
Robert Heywood is a full-time mediator in Oakland, California specializing in complex injury cases throughout California. For twenty years he was a certified specialist in workers’ compensation and served four years on the Workers’ Compensation Law Advisory Commission. His website is www.heywoodmediations.com/. He can be reached at firstname.lastname@example.org.
In addition to “Eight Quick Tips for Applicants and Defendants to Improve Their Mediations”, Workers’ Compensation Quarterly Vol. 28, No. 3 (2015), see Robert Heywood’s article at Vol. 27, No. 3, “Have You Mediated a Workers’ Compensation Case? What Are You Waiting For?”