Understanding the Workers Comp Mediation Process
Knowing What to Expect Can Lead to a Successful Outcome
Workers compensation cases can drag on for years.
Fighting for mileage reimbursement, seeking authorization for surgery, or stressing over late checks differs from how most people want to spend their time after a work injury. Instead, most injured workers wish to negotiate reasonable workers comp settlements and move forward with their lives.
Fortunately, an alternative dispute resolution process is available to shorten the litigation, break deadlocks with the insurance carrier, move your case away from an administrative law judge, and put more money in your pocket: mediation.
This article helps you prepare for workers comp mediation, one of the options for resolving litigation before trial.
In addition, it provides negotiation strategies to get the insurance company to offer a fair settlement agreement that covers past and future medical bills, wage loss, and permanent disability.
So, keep reading.
Then call our law firm at 804-251-1620 or 757-810-5614 if you are an injured employee with questions about workers compensation law in Virginia or your settlement options.
What is Mediation?
Mediation is an informal settlement negotiation method where the parties sit down with an impartial person (the mediator) and try to resolve the disputes with the mediator’s assistance.
What is the Mediator’s Role?
The mediator’s primary role is to guide the parties to a mutually agreeable resolution of the workers compensation case.
Unlike an arbitrator, a judge, or a jury, the mediator cannot force an injured employee or workers compensation insurer to accept a decision or a proposed resolution.
Instead, the mediator uses different procedures and techniques to help the parties discuss issues and reach a voluntary agreement to end the workers comp case and, if asked, proposes a reasonable range based on the evidence and judicial precedent. This evaluation, however, is non-binding.
The mediator has no vested interest in whether the parties reach a deal.
In addition, the mediator cannot provide legal advice, although they should have expertise in workers compensation law. Indeed, many administrative law judges serve as mediators.
Does Workers Compensation Mediation Usually Result in Settlement?
Yes.
Mediation works in most cases.
Personal experience and the data suggest that workers comp mediations have a high success rate.
For example, Virginia’s ADR Department has an 85% success rate in resolving workers comp cases it mediates. And hundreds of these meetings happen yearly.
The volume of mediation hearings is a testament to how well they work. Parties and their attorneys participate in settlement conferences because they increase the likelihood of resolving the case earlier.
Reports from other jurisdictions support this conclusion.
For example, a 2002 study titled, The Effects of Court-Ordered Mediation in Workers Compensation Cases Filed in Circuit Court: Results From an Experiment Conducted in The Circuit Court for Baltimore County, found it appropriate to require mediation in all workers comp cases filed in that court.
The Mediation Process: What to Expect
The process of mediating a resolution involves many parts.
Knowing what to expect after you request to mediate and what your lawyer will present can help you prepare.
Let’s look at each section.
Pre-Mediation Statements
The mediator may ask (or require) your workers compensation attorney and the insurance company to submit a written statement of their positions before the settlement conference.
This brief provides an overview of the relevant facts (including medical treatment), legal issues, upcoming medical issues, and legal arguments. It also attaches essential papers such as medical records. In addition, your letter should state whether the insurance adjuster has made a settlement offer.
You can learn more about the pre-mediation statement here.
Mediation Styles
Two approaches to mediation dominate. And you can request either.
The first style is called neutral facilitation.
With facilitative mediation, the mediator helps the parties identify the critical issues and assess the strengths and weaknesses of their cases. But the mediator does not suggest a particular dollar amount to resolve the matter.
The second style is called neutral evaluation.
With evaluative mediation, the mediator asks both sides to present their claims (or defense) privately. Then the mediator gives an objective evaluation and a reasonable settlement range.
Many mediators will offer to use both methods.
You should agree to this.
If you reach an impasse with the insurance company using facilitative mediation, the neutral’s objective evaluation with proposed dollar amounts can restart negotiations and lead to an agreement.
Who Attends the Mediation?
In a workers compensation mediation, the attendees include:
- You (the injured worker) and your lawyer
- A representative of the employer or insurance company (usually a claim adjuster or the safety manager for the employer). Or one from each entity. This person must have meaningful settlement authority so the mediation can succeed.
- The claim administrator for the insurance carrier or the employer, if applicable (companies such as Sedgwick CMS or Gallagher Bassett)
- A workers compensation lawyer representing the defendants
- The mediator (someone other than the workers compensation judge assigned to your case)
You may also ask non-parties to attend the settlement conference.
For example, some clients have brought a family member (parent, spouse, adult child, or sibling) or close friend to the mediation for support and advice. This is common in head trauma (including traumatic brain injury and post-concussion syndrome) and spinal cord injury cases.
Joint Session
Usually, everyone starts the mediation in the same conference room.
However, there are some exceptions. For example, it may be harmful to hold a joint session if the claim involves workplace assault.
This joint session may be the first time you have met the insurance adjuster, who only knows you as a claim number. And meeting face-to-face can help.
The neutral third party will make an opening statement detailing their background and explaining the ground rules for the session.
This talk aims to put you, the insurance company, and the lawyers in the right mindset for a successful mediation.
Each Party Talks (if They Want)
When the mediator’s introduction ends, everyone involved can speak.
Sometimes the attorneys agree beforehand to skip opening statements. This approach helps in emotionally charged cases. But if not, the claimant presents their position first.
Often, I make a short opening statement outlining the injured employee’s theory of the case and detailing the employer and insurance carrier’s risk (liability exposure) if the claim stays open. I want to ensure the defendant hears what their worst-case scenario looks like, which is something the attorney may not have told them. But I do not go into great detail about witnesses or strategy in case a hearing or trial is necessary.
Then the defense attorney will speak. Listening to the other side attack your case or credibility will be challenging, but it is part of the process.
After the attorneys’ opening remarks, you can say anything you want. But I recommend remaining silent during the beginning. The less said, the better in most cases.
Then the representatives of the employer and insurance company have the same chance. However, most claim adjusters or risk managers stay silent.
Private Meetings
After the joint session, the mediator will ask the parties to go into different rooms.
The mediator will go back and forth between these rooms during the settlement conference.
These private meetings are critical to resolving the case because the mediator serves as your voice in the other side’s room. Therefore, you must arm the mediator with strong points and evidence to get the result you want.
In these private discussions, you, your workers compensation attorney, and the neutral will talk about what is important to you, medical treatment, the strengths and weaknesses of the claim, arguments raised by the defendants, and potential issues that may arise during the litigation. And you will continue to negotiate, making demands in response to settlement offers.
Reaching a Deal – Or Not
These private sessions will result in a negotiated agreement, the realization that the claim won’t settle, or an agreement to continue talking with the insurance company.
Regardless of the outcome, the mediator will move everyone back to the starting room to summarize what happened during the settlement conference and the next steps.
What Happens After the Mediation?
After the settlement conference, the mediator submits a written report of the results to the Commission. This letter tells the workers comp judge assigned to the case whether the claim settled or did not settle at the mediation.
Usually, the mediator files this letter within one day of the meeting’s conclusion. In some situations, however, the mediator will wait one week or longer, mainly if the parties are close to a deal and ask for more time to consider the last offers to settle.
The letter does not give details of the negotiations during the settlement conference. Or what a workers compensation lawyer, insurance adjuster, or injured worker told the administrative law judge privately.
If the case settles, the parties must prepare and submit written settlement pleadings to the Workers Compensation Commission. Then a deputy commissioner reviews the settlement documents to ensure the compromise and release are in your best interests and approves or rejects it.
If the case did not settle, your claim will go to a hearing if unresolved issues remain.
Or, if you have an award for wage loss payments (Temporary Total Disability or Temporary Partial Disability), you will continue to get checks as you did before the mediation.
How Long Should the Mediation Last?
The last one-third of the settlement conference is where most of the action often happens. Therefore, I recommend putting a specific time limit on the mediation instead of agreeing to an open-ended meeting with no end time. And the shorter the mediation, the better.
As for average settlement mediation lengths –
- If you use the Commission’s ADR Services, the settlement conference will likely last two to five hours. Three hours is the standard length; however, many mediators will permit an extra hour or two if needed (schedule permitting).
- If you use a private mediator, the mediation may last four to ten hours.
Four hours is enough to know if you will reach a deal with the insurance company and its attorney or if both sides should take a break and restart negotiations later.
Can I End the Session?
Yes.
You can walk out of the meeting at any time.
But I only recommend leaving if it becomes clear the other side refuses to act in good faith and offer a reasonable dollar amount to resolve the dispute.
Do not let your opponent or its attorney abuse the process and use it to frustrate you or get information outside of formal discovery.
Is Mediation Confidential?
Yes.
Workers comp mediation sessions are confidential. This feature encourages honesty and openness in the attorneys and parties without the fear of having to testify in court about statements made during the conference.
Therefore, remarks in the mediation or documents prepared for the settlement conference’s purpose (memorandum and other work products) are confidential and inadmissible in litigation. Further, the other party cannot get these items in pretrial discovery.
However, evidence otherwise discoverable or admissible in litigation does not become inadmissible or undiscoverable because one party brought it up during the settlement conference.
For example, the other party may introduce specific medical reports into evidence at the hearing even though you discuss them during the session.
Why Mediation Works: Understanding Its Benefits
Participating in the mediation process has several potential benefits for the parties to a workers comp claim, even when the attorneys are skilled negotiators.
These benefits include the following:
- Faster results: Besides waiting for a hearing, you must wait for the workers comp judge’s written opinion. This can take months or even years. In contrast, you can reach a negotiated settlement agreement in mediation in a few hours.
- Money savings: Expert witness fees can reach $10,000 or more if you need a hearing. And pretrial discovery can cost even more in legal fees. Resolving the workers comp claim eliminates these litigation expenses.
- Alternative outcomes: At the hearing, the workers comp judge will rule on your entitlement to benefits and nothing else. But other results are possible when you mediate, such as your boss apologizing for creating the unsafe work conditions that led to your injury.
- The mediator can work behind the scenes and propose solutions that the attorneys would not for fear of looking weak during negotiations.
- Mediated agreements provide finality because neither party can appeal the deal reached. In contrast, a trial win may lead to several rounds of appeals (in Virginia, the parties can request review as a matter of right to the Full Commission and the Court of Appeals) and the possibility that a higher court reverses your victory.
- Control: You keep control over the outcome. In contrast, someone else (the judge) decides the result if you go to trial.
- If you reach an understanding instead of fighting at trial, you can better maintain a relationship with your employer, former supervisor, or ex-coworkers. Everyone can feel like they “won.”
- Informal process: You get your day in court without the stress of cross-examination or relying on someone else to decide the case.
- Lawyers and insurance adjusters handle many cases at once. A scheduled meeting ensures everyone’s attention is on resolving your workers compensation claim.
- You can see how the other side’s case will look to a judge and how they would perform at trial.
- Although not admissible, statements from the other side help your attorney predict the opponent’s strategy and develop evidence to counter it if the case goes to trial.
- The neutral third party can referee and shut down an uncooperative or hostile attorney.
- Mediated settlements remain private, while the public can see judicial opinions.
- Listening to the other side’s point of view and argument directly, instead of through your attorney, may provide insight and help you make an informed decision.
- You will get a “second opinion” on your workers comp claim’s value from an unbiased person. You may not like what you hear. But it’s more information to help you decide what to do.
-
Mediation simulates some of the pressures of trial, making you more comfortable with litigation and knowing what to expect. Or, if you find the meeting stressful, you may be better off settling.
- Even an unsuccessful mediation can narrow the scope of disputed issues, allowing the parties to try the case more efficiently or resolve it later.
Our Goal is to Put More Money in Injured Workers’ Pockets
Most cases settle because of a deadline, such as the completion of pretrial discovery, expert witness disclosures, or a scheduled hearing.
Deciding to mediate as soon as the parties have enough information to evaluate the case creates a new deadline that helps you settle your workers comp claim sooner, saving time and money and reducing stress.
Our personal injury law firm knows what mediators are more likely to advocate on your behalf during a workers comp mediation. And we want to use this knowledge and our skill to get more money for you.
Call us today to get started or to schedule a free consultation with a top-rated workers compensation lawyer.
- Will the Dollar Tree Store Closures Affect My Workers’ Compensation? - March 14, 2024
- SSA Proposes a Rule Change to Work History Evaluation - November 1, 2023
- VA Workers Comp Lawyer: We Win Work Injury Claims - May 8, 2017
