YOU THOUGHT MEDIATION AND SEX HAD NOTHING IN COMMON?
Both mediation and sex should:
Happen between persons committed to the process as an essential part of the big picture
Occur with appropriate frequency
Stimulate participants to contribute their best selves
Continue until mutual satisfaction
Make participants feel better at conclusion
Empower parties to turn to other areas of life with renewed vitality and creativity.
The Mediator might rule against me.
If I go to mediation, I will have to give up something.
We look like push-overs by suggesting mediation.
Sometimes the issues the lawyers and adjusters are discussing are not what is most important to the Applicant.
Recently, in a pretty small case, the professionals told me the disagreements were about what had been paid and what was still due. The injured worker told me his biggest concern was that, although he had returned to modified duty, the employer had told him there was no more work for someone with his disability. The injured worker was terrified that he would be out of a job with no ability to get another one, but that is not what the lawyers were discussing.
Many times, the injured worker’s biggest issue is not one that is dispositive of any issue in the case, but, in fact, is the driver for the injured worker’s decisions– the proverbial elephant in the room the negotiators are trying to ignore.
Because these are often personal matters, the injured worker may not share these concerns with the employer’s side– or even the injured worker’s own lawyer.
- The woman with a sick teen-aged son who desperately wanted to control her own industrial medical care, but was afraid that if she C&R’d her case, the lump sum payment would result in the family’s loss of Medi-Cal which provided care for the son.
- The man suffering from non-industrial cancer whose biggest concern was leaving an estate to support his wife.
- The injured worker who wanted to return to his home country, but feared that expressing that desire would diminish the value of the claim.
“AFFORDABLE CARE ACT”
The term “Obamacare” is a nickname for the Affordable Care Act. But sometimes politics can get in the way of clear thinking.
The Affordable Care Act encompasses much more than the purchase of private health insurance on an exchange like Covered California, www.CoveredCA.com. When discussing settlement with counsel and clients, talk about using “The Affordable Care Act” to avoid the emotions the term “Obamacare” triggers.
Make sure you mediate with someone who understands all the options for replacing medical benefits in our new healthcare environment.
Mediation of Workers Compensation claims is commonplace in some states and mandatory in some. Elsewhere, such as in California, claims professionals and attorneys are still starting to catch on to the benefits of mediation.
Multiple Appearances With Judge Can Accomplish Little
Budget cutbacks and increasing caseloads mean less time for cases to be heard by a workers compensation judge. The result is multiple appearances which accomplish little. This costs the employer money for the defense attorney’s fees and consequential costs from the inability to get a ruling. For the injured worker’s attorney who typically will receive a fixed percentage contingent fee, each appearance without resolution decreases the attorney’s hourly rate of compensation. The injured worker shares the employer’s frustration with the inability to get a ruling, with consequent stress and depression. Sometimes this frustration causes the injured worker to seek new counsel with instructions to “be more aggressive.”
In contrast, mediation is as fast and efficient as the parties want it to be. Mediations can be scheduled for a time and place of the parties’ convenience. As much time as is necessary can be allocated for the mediation. The issues to be resolved can be as narrow as definition of the industrial injury or as broad as conclusion of all indemnity, medical and penalty claims.
Mediation Facilitates Communication and Settlement
Mediation focuses the parties’ attention. This contrasts with a court appearance where an attorney may be juggling appearances in multiple courtrooms.
Mediation can result in settlement when the parties are unable to negotiate a settlement on their own. The presence of the neutral can facilitate communication. Typically, parties will be together for some of the mediation and sometimes in separate sessions. Separate sessions, known as caucuses, allow the mediator to exercise shuttle diplomacy. Settlement can result even when the parties or attorneys are hostile.
The mediation may be the only opportunity the injured worker gets to tell the story of the injury and treatment. For many injured workers, relating the narrative allows them to put it in the past and move on, a good result for all concerned.