How to Succeed at Mediation

For workers’ compensation attorneys and adjusters the best claim is a closed claim.  The best thing you can do for your clients is to get your claims to a place where they can settle.  Obviously this starts with the administrative process, but for the purpose of this post we’re going to focus on settling a claim once you are in court.  Personally, unless the injured worker is still employed by my client, and the client has a policy against settling with active employees, I always ask to be set for mediation at the case management conference.

Mediation is only as successful as the parties make it however.  One way to put yourself in a position to achieve the best possible outcome is to do your homework ahead of time, and give both the other side and the mediator a fair picture of the issues involved, and why your valuation of the case is an accurate one.

Most mediation departments require a mediation statement.  Don’t just think of this as a chore.  This is your chance to make your case beforehand, and get both the mediator and the other side to understand things the way you see them.

A good starting point is the average weekly wage.  Make sure you have the AWW and compensation and medical bills paid available for the mediation.  Also think about including the AWW in your mediation statement.  Because indemnity benefits are based on this number, the value of a claim can hinge on the AWW.

It is also important to outline defenses to a claim. This has a huge impact on potential recovery and future exposures.  If you have narrative reports from the employee’s treating doctor that support your position consider having those available at the mediation.  You don’t just want to bluster about why your case is so strong.  You need to have the injured worker and their attorney understand why you value the case the way you do.  Be honest  with yourself and your client about the case strengths and weaknesses going into the mediation however.  If your valuation of the case is totally out of line with reality you are just wasting everyone’s time.  I personally like to work out several scenarios-from the best possible outcome  I can possibly imagine (unicorns singing as the Indians win the World Series) to the worst.  I can then work my way backwards from an offer based upon that best case scenario to something more realistic.

Make sure the mediator understands the procedural history of the claim and allowed and disallowed conditions.  If there are preexisting medical conditions that have a bearing on the claim make sure that you call the mediator’s attention to those as well.

Think of your mediation statement as a story.  Write it persuasively to help the mediator and the other side understand your position.  It’s critical that everything said in the mediation summary can be backed up with evidence, however.

During the mediation itself, don’t forget about the importance of tone and body language.  A successful mediation depends upon both parties working cooperatively.  That does not mean giving in to the other side, however.  In fact, you will likely do better at the mediation if you have done your homework beforehand, and have a clear picture of your goals in mind.  Work with the other side to make them understand why the settlement number you end up with is in their best interest as well.

So, write a strong mediation summary, be clear about your goals at the mediation, and perhaps you can achieve your best case scenario (even if it has nothing to do with Unicorns or an Indians World Series win).

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