I participated in many workers' comp mediations before I became a mediator but never saw a conversation with the injured worker.
Near the start of every mediation, once each side is in their own caucus room, I spend time talking directly with the injured worker. There are at least three reasons to do so.
1. I want to build trust in the mediation process.
The injured worker needs to feel part of and emotionally invested in the mediation process. The injured worker is probably unfamiliar with the mediation process and may be apprehensive. The parties may distrust each other. Empathy is one of the traits of a good mediator. I assure the injured worker that nothing will happen that the injured worker does not agree to. When the injured worker trusts the mediator and the mediation process to be fair, the likelihood of settlement increases.
See also: A Better Reality for Injured Workers
2. Catharsis is part of the settlement process.
The mediation may be the closest the injured worker will get to a day in court. Telling the story is a prerequisite to accepting settlement. I want to make sure the injured worker gets the chance to tell the story in a neutral setting. Letting out emotions is good, and crying not uncommon. Occasionally an attorney will intercede and take the place of the client to tell the story from the client’s viewpoint. This is a mistake.
3. Sometimes the injured worker’s concerns are not being addressed.
At one mediation, when it looked like the attorneys had wrapped up all the issues, the injured worker asked me, “When will I be able to go back to work?” A return to work was not part of the attorneys’ deal, and I had to rewind the process to make sure the injured worker’s concerns were addressed. When the injured worker feels able to speak directly to the mediator, this type of omission-- which could lead to problems for all participants later-- is less likely to occur.
See also: Time to Focus on Injured Workers
I participated in many workers compensation mediations before I became a mediator. I never saw a mediator take the time to talk to the injured worker. Instead, I saw mediators create a barrier between themselves and the injured workers that made settlement more difficult. I work hard to make sure no communication barriers exist.