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5 BEST BENEFITS OF WORKERS COMPENSATION MEDIATION

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1) Mediation Works.  In one study, 61 percent of workers compensation mediations resulted in total resolution of the disputed issues.
2) Mediation is fast- no waiting for a hearing date on an overcrowded court schedule.
3) Take as much time as you need- no rush to finish within a half-day window at the WCAB.
4) Mediation saves time and money compared to numerous, futile court appearances.
5) Presence of the neutral can help preserve the attorney-client relationship and inject a dose of reality.

Why Mediation Is Like Sex

YOU THOUGHT MEDIATION AND SEX HAD NOTHING IN COMMON?
NOT SO!

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.

Six Biggest Mediation Misconceptions

The Mediator might rule against me.

Mediators do not make any rulings. The role of the mediator is to help the parties resolve the issues.

If I go to mediation, I will have to give up something.
Negotiation is about compromise. Each side usually gives up something. You won’t give up anything unless you, and only you, make the choice to negotiate a deal.
 
Mediation is too expensive.
Mediation is cheaper than litigation. It is efficient and eliminates other procedures which use up time and money.
 
Mediation is a waste of time.
Mediation has been shown repeatedly to be effective in resolving all issues. But even if you don’t conclude your case at the mediation, mediation typically allows parties to learn more about their opponent’s case—and their own. Issues are narrowed, setting the stage for further negotiation or more efficient litigation.
 
There is no reason to mediate—our case is a sure winner.
Mediation might be a place to test that hypothesis—or convince the other side. Presumably you wouldn’t be in litigation if there weren’t two sides to the story. If there is counsel on both sides, your opponent is spending time, money and effort for a reason. Applicants representing themselves might just need a forum to tell their story. Litigation is always uncertain. Settlement is the only way to retain control over the outcome, rather than let a judge impose a resolution on you.

We look like push-overs by suggesting mediation.
Mediation is the rule rather than the exception in most areas of law in the United States. The fact is that most cases settle at some point. Smart claims professionals and lawyers use every tool at their disposal to conclude cases as early as possible.

The Elephant in the Room

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.
These issues can often be discovered and resolved through mediation. Parties can express their concerns to the mediator confidentially. Once the mediator knows the real issue,  the mediator can often re-frame the issues to allow the parties to reach resolution– all without breaching confidentiality.
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DON’T LET POLITICS GET IN THE WAY

“AFFORDABLE CARE ACT”

NOT “OBAMACARE”

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.

How Mediation Saves Time, Money and Stress

How Mediation Saves Time, Money and Stress

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.