Q: How does mediation work?
A: A mediator is an impartial person whose goal is to bring the parties to a resolution of the claim which is agreeable to all involved.
The mediator is chosen by agreement of the parties, usually through their attorneys, and is generally a person familiar with this area of law and respected by both sides. Although, they are not a legal advisor for either side and will not answer questions regarding the law, they may raise issues that you or your representative may not have considered.
Mediation can be very informal and will usually be conducted in the offices of the mediator, although it can be done wherever there is adequate privacy.
Upon arrival at the mediation site, introductions will be made between the parties and their attorneys, as well as the mediator.
The claimant will usually be present with their attorney and a significant other, or trusted family member or friend.
The employer and insurance carrier will often be represented by only their attorney, although a representative of the insurance carrier or employer, or both may be present.
Some parties, or representatives, may participate by telephone or other means, and participate during all or a part of the proceedings. Most often, however, they will be contacted by their attorney's only as needed to discuss various settlement considerations and authority.
The mediation may begin with a short meeting involving the mediator and all parties with their representatives. This initial conference may be skipped. Do not feel shorted if it is. Many mediators will know the attorneys involved, and may not feel this step is necessary. If an opening meeting is held, each party will be invited to state their side of the matter. It is important not to interrupt or try to ask questions during another party's presentation. This portion of the mediation may seem very one-sided, or may include a more open discussion admitting certain facts for the purposes of the mediation only. Regardless, you or your representative will have a chance to give your side as well. If this meeting is skipped, you may still convey your position through the mediator.
The sides will then be sent to separate rooms well out of earshot of each other.
The mediator will then first go to whichever room they wish to start with, and candidly discuss your case with all present.
These discussions are confidential except as to the information you and your attorney give the mediator permission to pass to the other side for their consideration. This information will include a demand, or offer, with various settlement terms and conditions, and may make reference to various facts about your case that you or your representative want the other side to consider.
The mediator will take the information you authorize to the other side, and return with their response. This process may occur many times during a mediation session and may continue after it is over. (top)
Q: How long does this take? If mediation is scheduled for three hours, is this all the time we can use?
A: The sessions are usually scheduled to last a number of hours, but often run over the allotted time, and may be adjourned from day-to-day or continued by mail, telephone, or e-mail, between the mediator and your counsel who will keep you advised.
Q: The mediator seems to be picking on my side, are they not supposed to be neutral?
A: Yes, they are neutral, however, the mediator will often ask for the strengths and weaknesses of your case, or similar questions such as what are your best and worst case scenarios. This is not for the purpose of passing your weaknesses on to the other side. These questions will likely be asked of all of the parties. The purpose of these questions is to help you understand that there are two sides to every dispute and that if you consider only your own side, you may be in for an unpleasant surprise when a final decision is issued accepting an opposing party's side.
Again, these discussions are confidential except as to the information you and your attorney give the mediator permission to pass to the other side for their consideration. (top)
Q: What if we do not reach an agreement?
A: Neither side is compelled to reach a settlement, or accept a settlement. Any party may leave without a settlement at any time.
If a settlement is reached, the parties will be encouraged to write down the amount, type of settlement and any terms or conditions, and to sign and date their agreement, as the mediator cannot be called as a witness to either the mediation communication or the document, except under rare circumstances.
If no settlement is reached all parties are free to proceed as if the mediation had never taken place. (top)
Q: When can it be done?
A: Mediation can be done at any stage of the proceedings, even before an action has been filed, or after a hearing has been held and one or more decisions have been issued.
The best time to mediate, however, is after the parties have had an opportunity to gather their facts and formulate their positions, but before a hearing has been held. Mediation works best when everyone knows their case, but neither side has been reinforced, or disappointed, by a decision.
Do not, however, give up on the possibility of a mediated settlement even if it must be done after a hearing or decision. Many settlements have been reached with an appeal pending. (top)
Q: If an agreement is reached can either side back out?
A: NO, except in rare instances of misrepresentation, fraud, mutual mistake, duress, or failure of the Workers' Compensation Commissioner to approve the settlement on its merits.
Settlements have been enforced against both claimants and employers, and you can be ordered to sign the necessary documents. So, if you do not want to settle, do not agree to! (top)
Q: Does the adjustor need to be present at the mediation? If they do not attend will they be seen as not taking the claim seriously?
A: Although this is a subject of often heated debate among attorneys, in our experience, NO.
We have successfully mediated hundreds of claims since we first started participating in mediation in 1991. These have included claims in which we have represented Claimants, Employers and Insurers, and have been the mediator. In the vast majority of these the adjustor has participated by phone. Provided the Claimant is willing to proceed, we have not noted any difference in our success ratio on either side, nor when we have been the mediator.
Adjustors are often in another State, and are handling dozens of claims from a number of different States, many of which include mediation as well. All of these States require them to act reasonably, and quickly, in handling these claims. For them to take the time to travel to each mediation would only slow the processing of all of their claims, including yours, and be an almost impossible task.
They can be available by conference phone to hear opening statements, so that you may be heard, and will in all likelihood be consulted a number of times by their counsel during the private sessions. Occasionally, even the mediator will talk directly to them during these sessions.
For those who still, however, wish to have face-to-face contact with the adjustor, some firms, such as ours, are working on web camera connections to allow you to have this contact. Particularly during the opening presentations.
Although, you should carefully listen to, and weigh, the advice of your counsel, the choice as to whether to participate is yours.
You should consult an attorney well before any mediation. Failure to do so is like representing yourself in court. You may give up valuable claims or defenses if you do not, and find yourself bound by a settlement you are not happy with. (top)
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