Today I am going to write about the option of using a mediation to help try to settle an Iowa Workers’ Compensation case.
WHAT IS A MEDIATION? A mediation is a procedure to try to settle a case. Typically, the injured worker, a representative of the insurance company, the lawyers for each side, and a mediator meet to discuss settlement.
A mediation is not a trial. Although the parties generally talk about the facts and law, no evidence is presented.
In order to resolve a case in a mediation all the parties have to agree to the final settlement terms. Neither side can be forced to settle the case. One or both sides can end the mediation.
One of the keys to a mediation is the mediator. A mediator is typically a lawyer who has gone through special settlement training, and who has experience in the type of case that the parties have.
The mediator is paid to provide his service. The parties generally split the cost of the mediator.
HOW IS A MEDIATION CONDUCTED? Prior to the mediation all the parties have to agree to go through the mediation process, who the mediator will be, and when and where the mediation will be conducted.
Prior to the mediation each side generally sends the mediator a written packet explaining their views on the case. Generally, the parties do not share the mediation packet directly with each other.
The mediation can be held at the law offices of the claimant’s attorney, the defense attorney, the offices of the mediator, or some other agreed location such as a hotel.
In most mediations the parties start the process in the same room. The mediator usually gives a talk about the risks and dangers of proceeding to trial, and the positives for each side in reaching a compromise. In this initial joint meeting the parties might give a presentation on their views of the case, but frequently this is not done.
After that initial meeting the parties will split up and be in separate rooms for the rest of the mediation process.
The mediator usually begins by meeting with each party, and reviewing the facts and applicable law in the case to make sure he understands each party’s position.
After these initial meetings with each side the mediator begins going back and forth between the parties. In these back and forth meetings the mediator presents settlement offers and counteroffers, and gives the parties his assessment of the case, and his advice on how the parties should move forward in the settlement discussions.
WHEN DOES A MEDIATION WORK BEST? I think there are two main components to giving a mediation the best chance to work. First, is the timing of the mediation.
Sometimes a mediation that is held early on in the litigation process can work. However, I find that mediations work best later on in the process. It is very helpful if the parties have done most of the discovery and case preparation so that each party knows the strengths and weaknesses of each side.
It is also helpful to have a trial date coming up fairly soon after the mediation so that the parties know that if they don’t get the case worked out at mediation they will soon have to deal with the results of a trial.
The second big factor is to try to make sure that all of the decision makers actually attend the mediation. On the Claimant’s side, the injured worker (their spouse if they are married), and the Claimant’s attorney all attend. Therefore, the claimants almost always have all the necessary people to make decisions about settlement.
On the defense side, they will always have defense counsel, usually an employer representative, and the adjuster on the file. However, especially in bigger cases, the adjuster may only have limited authority, and a supervisor in the insurance company actually needs to be consulted after a certain point in the discussions.
Mediation can work by having the defendants talk to the supervisor with the settlement authority by telephone. However, I’ve always found it works much better if the insurance company supervisor is actually attending the mediation.
WHY DO MEDIATIONS SO FREQUENTLY LEAD TO A SETTLEMENT OF THE CASE? You might ask yourself why go to the inconvenience and expense of a mediation, and instead just have the attorneys communicate back and forth. It certainly is true that many cases are settled without mediation. However, in difficult cases and larger cases a mediation can be very helpful.
First, having a mediator helps remove some of the competitive quality that exists when the lawyers and parties are dealing directly with each other. The mediator helps keep the focus on what is the best way to fairly resolve the case, rather than annoyances and disagreements that the two sides might have with each other.
Second, I think there is a lot of value in having all of the decision makers together in the same place concentrating only on the case being mediated. The alternative of having the lawyers discussing the case and making offers back and forth through phone calls, letters and emails is much slower. In each step of that traditional process the lawyer has to talk to their clients, who in turn have to think about the proposals. Additionally, in each step along the way the lawyers and the clients all have other responsibilities and tasks that are distracting them and adding to the delay.
Finally, as I mentioned above I think that it is helpful to both sides to have a trial date fairly close in the future. This helps everyone really focus on the strengths and weaknesses of their case and the possible range of trial results.
Mediations don’t result in a settlement every time. However, I find that if the parties go into the mediations with an informed view of their case, that the vast majority of cases can be settled at mediation.