What to Expect at Your Workers’ Compensation Mediation

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What To Expect At A Workers Compensation Mediation from Deuterman Law Group on Vimeo.

Preparing for your mediation

Hi, I’m Zach Marquand. I’m a Board Certified Specialist and Workers’ Compensation attorney at the Deuterman Law Group. I want to talk with you a little bit about mediations. If you’ve got a mediation coming up in your case, one of two things has probably happened. Either the insurance company has denied something in your claim and your attorney has filed a hearing request, which means you’re headed toward mandatory mediation. Or, it may also be that you’ve got an accepted claim, there’s no particular issues right now, and it’s just a good time to have a discussion about trying to resolve the claim either way. The mediation is going to occur either in person or over some kind of video chat system. We’re using Zoom for a lot of mediation still, but the advice for both scenarios really stays the same. You know, you wouldn’t show up to an in-person mediation, half-dressed.

You wouldn’t show up and bring something else to do with you. You wouldn’t show up and bring somebody to talk to who’s partially participating. Likewise, if you’re on a video chat, show up dressed neatly. You certainly don’t need to wear a suit or anything like that, but you know, neatly dressed, fully dressed, in a place where you can focus on the proceedings. I would expect that this process takes somewhere between two, three, maybe four hours sometimes. So if you are joining a video call, make sure you’ve got a charger for your phone. If that’s what you’re using, make sure you’ve got access to reliable Wi-Fi. Make sure you’re not joining from work or have an appointment afterward. Make sure you’re not in a car driving. Make sure this is something you can focus on, and focus on what is a pretty important day in the life of your claim.

Who else is present at your mediation

 When you join the mediation, when you walk into the in-person mediation, you’re going to see a couple of different people there. You’re going to be there with your attorney. There’s going to be an attorney representing the other side. Other folks from the other side may attend as well. There may be an adjuster. There may be an employee representative there. Oftentimes it’s just the attorney for the insurance company and the employer though, the other person who’s going to be present if there’s going to be a mediator present. The mediator is not like a judge. A judge is somebody who gets assigned to your case. A judge makes decisions about your case. You’re putting your hands in the fate of the judge when you go to court. When you go to a mediation, the only power the mediator has is the power of persuasion. They cannot make you settle your claim, a claim settles because both sides agree on a resolution of the case and no one can make you agree or can make the insurance company agree if they don’t want to.

Opening statements

So, when you walk into that opening session or you join that opening session, the mediator’s going to go over some rules of the mediation, and then, each attorney is going to give an opening statement during the other side’s opening statement. I don’t respond. I may take some notes, but I certainly don’t call them out if I see something or hear something that I disagree with, or I think is wrong. Likewise, I wouldn’t recommend that you do that either. I generally recommend that my clients listen politely, and then we talk privately after the opening session is over, when we either go back to my office or we go to a breakout room in the Zoom call. At that point, we can talk about things. The other side may have said things that we think are wrong or need added onto, or need corrected or something in a document.

The other attorney and the mediator

We need to point out — remember the other attorney wasn’t there when this happened. They’ve never had a chance to see you before. They’ve never had a chance to meet you before. What they’re relating is often based on things they’ve read in medical records or something they’ve heard from the employer. What they will be doing during the opening session though, is they will be paying attention to you. They’re going to be paying attention to how you respond, how you react, whether or not you make faces. So, I generally recommend listening quietly while they talk, because they are looking at you with an eye as to how this person might respond if this does go to a hearing. So once we’re in the private session, the mediator’s going to come in and talk with us a little bit. And then they’re going to go over and talk to the other side a little bit, and then they’re going to come back and talk to us.

Back and forth on the settlement offer

And that may go on a number of times. Generally, the way a mediation works is we’ll have talked beforehand about what we think. We may be able to settle your case for what we may want to settle your case for. We will generally send the other side a starting number, generally that is above where we think the case might settle. Generally, they’re going to give you an opening offer that’s below where they think it might settle. And then most of that day, most of that two, three, four hours is spent negotiating between those two figures. So expect there to be some back and forth, expect that their first offer is not their last offer. Expect that it’s going to be a bit of a process to get their best number out of them. If we do reach an agreement that day, we can put it in writing that day. Do expect that at some point that day you’re going to be asked to make a decision.

Settlement decision

It may be an easy decision. It may be a hard decision, but what I can tell you is that as your attorney, I would sit there and I would tell you what I think about it. I’ll tell you if I think it’s a good offer. If it’s a bad offer, I’ll tell you how I think it stacks up to what it might get or what you might be entitled to if the case doesn’t settle and it stays open. But at the end of the day, even with all of my advice, it’s your decision about your claim. And so, you can choose to settle it. If you’d like, you can choose to not settle it if you don’t want to. If we do reach an agreement, like I said, we can put it in writing. It is a binding deal. If you sign that agreement, you need to be prepared to live with it because once it is signed, it is enforceable by either side.

Either side can go to the court and get the court to hold the other side to that agreement. So the insurance company cannot get out of it once they sign it. Likewise, I can’t get you out of it. It is also a situation where we don’t get paid that day. Even though we have an enforceable agreement, it still takes up to five to six weeks often to get a final settlement check. There’s paperwork that has to be done after the mediation and then there’s court approval we have to go get. And then, once that happens, that’s where that five to six week time frame often comes in.


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