Mediation remains unfamiliar to most California Workers Compensation professionals. To succeed, you– and your client– need to know what to expect. While all mediations share some similarities, each mediator has a unique style. Here’s what you can expect at one of my mediations.
We usually start in joint session. The discussion might be limited to the logistical: introductions, bathrooms, lunch, etc. People get to look each other in the eye.
The first real step will be for the Applicant to tell how the injury happened and how things are going now. The purpose of this is to allow catharsis and to build empathy and trust between the injured worker and the mediator. Usually this is in a separate session known as a “caucus,” but if the defense needs to hear this information or wants to ask questions, it might happen while the parties are still in joint session. If the defense has heard the Applicant’s story many times, I may have Applicant do the venting in caucus.
I usually start negotiations with the Applicant’s side. If there were prior offers and demands, I will review those to make sure we are all at the same starting point. Then comes exploring the positions which support those offers and demands. The parties’ briefs should explain the issues; the more complicated the case, the more important the briefs. Defining issues for the mediator in the brief makes for a more efficient mediation. But the briefs do not limit the number of issues; sometimes new issues emerge in mediation.
I might speak with one or more attorneys outside the hearing of their clients, for example, to discuss a point of law. All parties might reconvene to brainstorm solutions to an issue. If parties are disrespectful of one another, I will stop a joint session.
In the give and take of numbers, issues will be discussed and swapped. Cases do not settle without compromise. Parties should expect give and take to finalize the settlement terms.
Participants may be surprised by the amount of time spent in caucus with the other side. As mediator, my job is to give all parties adequate time to express their concerns. While there are certainly exceptions, a typical workers compensation mediation lasts three to five hours.