1) The Need to Be Heard
Applicants need to tell their story. At the Workers' Compensation Appeals Board (WCAB), applicants are sitting in the waiting room or cafeteria, if they are there at all. Mediation may be the only time an applicant can tell his needs to a neutral person and know he has been heard. This emotional release is a first step toward resolution. The employer’s representatives also need to vent. Folks on this side of the table can be just as emotional as the applicant. Mediator feedback can help both sides.
2) The Need for Validation
Good-faith participation in mediation demonstrates respect for the other side and its position. Parties need to show that respect in their words and body language.
3) The Need for Revenge
Each side may blame the other for acrimonious litigation. The response may be to ratchet up the aggression. Finally, the two sides may not be able to talk to each other. The mediator can interpret negotiations between the parties without animosity getting in the way.
Like the blind men feeling different parts of the elephant, parties may not be seeing the whole picture. Mediation sometimes reveals misunderstanding of the other side’s primary concerns. Mediation can help parties make sense of the conflict.
5) The Need for Vindication
When a party feels wronged, that hurt can make her keep fighting. Because the mediator is the communication intermediary, a mediated settlement can help a party feel the wrong has been righted.
6) The Need for Safety
Any resolution must assure both sides that the settlement protects them. The applicant must feel confident that the money on the table is reasonable after consideration of all contingencies. The employer’s side may require protections such as inclusion of a Medicare Set-Aside with custodial administration.