The benefits of mediation are well documented which is why it has become such popular form of dispute resolution.
The benefits of mediation are well documented which is why it has become such popular form of dispute resolution. It is particularly beneficial in workers’ compensation cases as mediation provides the parties a civil atmosphere in which to discuss their differences and resolve issues efficiently as they arise. Mediations at the State Board can be conducted to resolve medical issues and rehabilitation issues but, is primarily used and, is most effective, in settlement of claims. Settlement mediations can be particularly beneficial when one or more of the parties does not clearly understand the complexities of the workers’ compensation system and has difficulty understanding the value of a case. Adjusters may wish to use this opportunity to educate an employer/insured on the valuation of a particular claim, and on the affects of their policies on the workers’ compensation claims in general. Attorneys can take advantage of a mediation to reinforce the recommendations made to their clients, particularly to claimants who are generally confused by the system and may not have a firm grasp on what their case is worth. Mediators also often provide a valuable service through their ability to provide a simple reality check to all the parties involved.
In the settlement of all issues in a workers’ compensation claim, a number of factors must be considered, including the claimant’s temporary total disability (TTD) rate, temporary partial disability (TPD) rate and any permanent partial (PPD) ratings that had been assigned. In addition, the amount of medical benefits paid to date as well as the estimated amount of medical payments which will be incurred on an annual basis into the future must be taken into account. Other factors to be considered include the claimant’s employability, the employer’s willingness to provide suitable employment to the claimant and whether social security disability income (SSDI) benefits had been awarded.
For every settlement mediation, the following specific information should be available to insure the most successful mediation as possible: the claimant’s date of birth and date(s) of accident(s) in question; the claimant’s TTD rate (This calculation should include the number of weeks paid to date and the maximum number of weeks remaining to be paid if the 400 week TTD cap applies); the claimant’s TPD rate (This calculation should also include the number of weeks paid to date, if any, and the maximum number of weeks remaining to be paid if the 350 week TPD cap applies. Also, if a WC-104 has been filed, a copy of that should be available); the amount of the claimant’s PPD rating as assigned by the authorized treating physician. (The value of the rating should be calculated prior to the mediation and if any additional PPD ratings have been assigned by other physicians, these should also be available).
For settlement of a catastrophic claim some additional calculations would apply. Because a catastrophic claim has the potential of paying the claimant indemnity benefits over his life time, it is important to be able to figure out approximately what that amount of benefits would be and what the present value of that cost is. Additional information that should be brought to the mediation conference in the event that one or both of the parties believe the case would qualify as catastrophic include: if the claimant is receiving SSDI benefits; if the claimant is Medicare eligible and a Medicare Set Aside (MSA) would be required. (If so, one should be prepared prior to the mediation and provided to all the parties); it may also be worthwhile to determine whether the claimant has access to other health insurance that might cover some of his/her future treatment after settlement of the workers’ compensation claim.
Preparing for a mediation conference is not unlike preparing for a hearing and it should be taken just as seriously by the parties. A settlement mediation will only be as worthwhile as the parties allow it to be and thorough preparation is the key to being successful. The more information that can available at the mediation, the more likely that a satisfactory resolution can be achieved.
At the mediation conference itself, there are a number of guidelines that should be followed in order to maximize the result as follows:
Review the entire file and have on hand documents available to support your position. It will be much more trouble coming up with additional settlement authority without proper documentation. It is also important that the client understand how you have evaluated the case, what to expect from the process and most importantly, that the final decision rests with them.
PROJECT A POSITIVE ATTITUDE AT THE OUTSET OF THE MEDIATION
Whether or not the opposing party has been difficult in the past , there is a psychological advance by coming into the mediation with a positive attitude and avoid being argumentative in the initial presentation. It needs to be remembered that this initial presentation is not an opening argument but an opportunity to put all issues on the table in as civilized a manner as possible.
While you should come to a mediation with a goal in mind, both parties should be willing to be flexible as mediation can provide opportunities to seek creative solutions to problems which may arise. While litigation is structured and inflexible by its very nature, mediations are not.
While the mediation process can be time consuming, the result is most often worth the wait. Be prepared for the initial demand and offer to be far apart from the final settlement numbers. Keep in mind that there is no chance of settlement if either of the parties walk away.
The workers’ compensation system is uniquely suited for mediation because it is a statewide system that can be administered in a uniform and fair manner. It is more cost effective, time efficient and result oriented than the litigation process. It helps the parties fashion their own solutions to achieve better results on their own time table and, in doing so, to control their own destiny. It is a non binding and confidential process and, in many cases, it is a process worth exploring.