Tag Archives: brief

Why Is Work Comp Mediation So Hard?

Why do so many advocates stumble when it comes to preparing for mediation? Perhaps the most important thing a lawyer can do to prepare for mediation is to write a brief. Done properly, the process forces the writer to focus and get ready to negotiate. But many people do it wrong, mostly by providing irrelevant and obsolete information and not providing the data necessary to evaluate the claim. This problem is so common that I now instruct parties in my confirmation letter what to include.

The brief doesn’t have to be fancy. I don’t care if there’s a caption. An email message is fine. What would be helpful would be sub-headings for the categories shown below.

Transmit the brief at least seven days in advance of the mediation. This helps everyone prepare, including the mediator. Your brief may prompt a request for a document. Showing up with your brief at mediation wastes participants’ time and money as the mediator reads the brief. Late preparation can raise new questions and sometimes leads to adjournment and a second session to allow time for everyone to get answers.

Claims professionals, you know the mediation is coming up. Ask your lawyer to provide you a copy of the brief at the same time it is sent to the mediator. This ensures that you and your advocate are on the same page. You can also monitor the timeliness of the preparation.

The brief should briefly (that’s why it’s called a brief) recite facts such as the dates of injury, affected body parts and the injured worker’s date of birth.

Indemnity

State specifically if indemnity is open. If it is open, what do you think is the correct percentage and dollar amount? If less than 100%, what are the permanent disability advances to date? At what rate are they being paid? Is there any argument about apportionment, overpayments or retro? Do the parties agree on the DOI? If parties disagree on an issue, spell out your position. What does the other party say?

Medical

Copies of narrative medical reports (AME, QME, PTP) from the last two years will be very helpful, as will a print-out of medical expense payments for that period.

Medicare Status

Is there a current (within the last year) MSA? If so, attach a copy to your brief. If the injured worker is a Medicare enrollee or is at least 62 1/2 years old, get a current MSA report and attach it to your brief. If you are not obtaining an MSA because the injured worker is undocumented or is otherwise ineligible for Medicare, say so in your brief. If you have obtained CMS approval, provide a copy.

Other Issues

Are there any other issues to be resolved? Mediations are most successful when parties are able to prepare for negotiation and do not encounter surprise issues.

Confidentiality

Indicate if the brief is confidential or is being shared with the other party. You may choose to create two briefs, one for exchange and one confidential.

What Socrates Says on Customer Insight

Are you and your Customer Insight team too often frustrated that you’re not making a difference in your business? Do your internal customers ever criticize what they receive from your team, asking, “Where’s the insight?” Sometimes this is because of technical skills or barriers that need to be addressed, but very often it’s because of poor communication. Do you need to get a better brief?

What I mean is this: Marketers or other stakeholders within your business can come to Customer Insight and ask for a piece of data/analysis/research. If the analyst just gives them what they asked for (or a version of that based on their understanding of what they heard), it’s often a recipe for disappointment. Analysts can feel limited by work that’s not creative or using their technical skills. Your internal customers can be disappointed, to receive something other than what they meant, and that doesn’t meet their real need.

This communication challenge is of, course, well-known in the field of project management. This tree swing example normally helps to illustrate this dilemma.

But there is more, beyond the challenge of documenting requirements clearly, in a good brief. Have you also found that what your internal customers doesn’t ask for is what they really need? Is what they want not what they need? That’s my experience, too. So, to help analysts improve their questioning skills in this area, I’ve been borrowing a technique from the world of leadership coaching.

Trained coaches will likely have come across Socratic questioning. It is a style of inquiry, aimed at helping the one being questioned to critique his own thinking, assumptions and viewpoint. Working with both experienced and junior analysts, I’ve found that the principles of Socratic questioning can help them in questioning what they are asked to provide, to get to the real need.

Here’s a very brief intro to this style of questioning, as proposed by the great Socrates himself:

Conceptual clarification questions: “What exactly does this mean?”; “Can you rephrase that, please?”; “Can you give me an example?”

Probing assumptions: “You seem to be assuming…?”; “Please explain why/how…?”; “How can you verify or disprove that assumption?”

Probing rationale, reasons and evidence: “Why is this happening?”; “Would it stand up in court?”; “How can I be sure?”

Questioning viewpoints and perspectives: “Another way of looking at this is…, does this seem reasonable?”; “What would… say about it?”;

Probing implications and consequences: “Then what would happen?”; “Why is… important?”; “How does… fit with what we learned before?”

Given previous advice on being action-oriented throughout any customer insight work, I find it helps to add another line of questioning to this model. That is to explicitly ask what action is going to be taken as a result of this request. This is important, to avoid precious analyst time being taken up with questions that are just out of curiosity. You need to know what action is planned.

None of the above is intended to be used word for word, or imposed without intelligent interpretation, in the language and culture of your organization. However, applied sensibly, I’ve seen that it can help empower analysts to question more and to improve their skills in eliciting real business needs.

When the real need is understood and captured in a clear brief, then you stand a much better chance of getting real insight.

What have you found works? How do you get a better brief?