One of my favorite methods for resolving workers' compensation cases in mediation is slicing. Slicing a dispute into its separate issues
allows parties to reach early partial agreement, paving the way for complete resolution.
Parties sometimes want to put one number on the table without specifying how much of that number may represent permanent disability (PD), future medical care or any other issue in dispute. There are pluses and minuses to this approach.
Benefits of Slicing
A typical workers' compensation mediation requires resolution of multiple issues, each of which is subject to a separate evaluation calculation. Often there are sub-issues. For example, in calculating PD, not only is the disability percentage up for discussion, but perhaps also the average weekly wage or dates when compensation should or should not have been paid as temporary disability (TD).
See also: Tips on Mediation in Workers’ Comp
Drilling down to the reason for disagreement on each issue can be enlightening. One side may have an “Aha!” moment when they finally catch on to why the parties have been at odds. Before mediation, they may have negotiated without understanding the other’s motivation.
When negotiations are stalled, slicing can shift the parties’ focus. Slicing can produce forward movement when negotiations are stalled.
Focusing on individual issues may resolve some issues while allowing parties to litigate only the remaining disputed issues. Sometimes resolution of a single issue, such as which medical treatment will be authorized, leads to parties adjourning the mediation to test the good faith of the adversary as well as the mediation process. After this initial hurdle, parties can return to mediation.
The Benefit of the Single Number Offer/Demand
Presenting a single number allows a negotiator to “log roll
.” When evaluating for settlement, a negotiator can borrow from one column where the argument is strong to shore up the evaluation of another issue where success is not so certain. By presenting a single number, the negotiator minimizes argument about a single issue and leaves it up to the offer recipient to parse the figure among the issues.
See also: How to Know When a Claim Should Settle