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‘Slice’ Your Way to Mediation Success

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  

Tips on Mediation in Workers’ Comp

The way mediations start is important. A bad start can result in a lot of wasted time getting to the place you should have been at the beginning.

The First Move

The best way to start is to start. Don’t be afraid to make the first offer to settle. Setting a settlement floor or ceiling tells your negotiating opponent where you are. Silence can falsely communicate that you are in the same ballpark.

Even if your offers did not get a response before, making a new offer now re-defines the settlement ballpark. An offer made “in light of new information” (even if that is simply a reconsideration) is not bidding against yourself.

See also: ‘Twas the Night Before Mediation  

Start Very Big or Very Small

Think about how your negotiating opponent will react to your opening. Your initial offer should not be so ridiculous that your opponent will walk out. On the other hand, research tells us that an extreme number can lead to a final result closer to the speaker’s expectation than does a more moderate opener.

Pick the Tiny Issue

Seldom does a workers’ comp settlement turn on only one issue.  Plan to start with the issue where the parties have the smallest evaluation difference and continue on as the challenge size increases. You may have to skip and come back to the thorniest issues regardless of size. Isolating issues and knocking them down one by one is an effective way to reach agreement.

3 Reasons to Talk With Injured Workers

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.

WC’s Version of ‘Room Where It Happens’

“Hamilton,” the ground-breaking musical about our colonial forefathers, is finally coming to Los Angeles in August. But maybe you’ve been experiencing a version of that story.

Like Aaron Burr, injured workers want to be in the room where it happens [sorry if you encounter an ad at this link].  Instead, they are frequently shut out of discussions and proceedings about their claim.

Ignorance breeds resentment

Go to any WCAB location, and you will see a waiting room full of injured workers. Many more injured workers with claims on the calendar are not in attendance. Settlement discussions may occur in courtrooms, cafeterias and even hallways. Injured workers are usually not included in these discussions.

No injured worker should waste time traveling to a Board when nothing will happen. On the other hand, injured workers want to sit in on their attorneys’ negotiations. If the injured worker is already at the Board, shutting out that person can foster mistrust.

The Best Place for Settlement Discussions

Mediation provides a forum for the injured worker to listen and participate. Including the injured worker conveys respect and can help avoid a problem later.

See also: How to Settle Tough WC Cases 

Likewise, the presence of a representative from the employer’s side shows a seriousness of purpose. That representative will get a better picture of the negotiation by being in the room where it happens.

Regardless of which side an attorney represents, counsel will want to prepare the client for mediation. That includes a preview of how mediation works. Counsel may want to coach clients to be temperate in their comments. In joint session or when the mediator is present, client or counsel can ask for time for a private discussion with each other at any point.

Multiple Rooms

Typically, there are at least two rooms where it happens, because each side is in its own caucus. As mediator, I shuttle between the rooms to speak with lawyers and their clients. Sometimes I speak only with the attorneys (often in the hall), and attorneys can request to speak privately with the mediator or with the mediator and opposing counsel. When counsel returns to caucus, the client can provide immediate feedback — assuming the client is in the room where it happens.

How to Settle Tough WC Cases

I see cases — sometimes years later — where the parties were oh-so-close to settling when negotiations broke down. Nobody would compromise their bargaining position to give that last inch, and they didn’t have a mediator to help them bridge the gap.
A Secret Response to an Offer Nobody Made
A “mediator’s proposal” works like this. I come up with a figure, sometimes with conditions such as CMS approval, which I believe will settle the case. Neither party has made this settlement offer, but, based on the negotiations so far, it is a figure I believe all parties can accept.

See also: ‘Twas the Night Before Mediation  

The mediator’s proposal depends on confidentiality. Parties are in separate rooms at this point. These separate sessions are called “caucuses.” I have always communicated my mediator’s proposals aloud in the caucus room, but some mediators write the proposal on two pieces of paper (one for each side) and sometimes put them in envelopes to be opened once the mediator has left the caucus.

If both parties accept the proposal, we have a settlement. (Hurray!) If one party accepts, but the other does not, there is no settlement, and the refusing party never learns that the other side accepted. I only tell parties there is no settlement. If both sides refuse, I tell them there is no settlement, but, again, parties do not know if the other side accepted the mediator’s proposal.

There are many benefits of the mediator’s proposal. Principally, no one has forsaken their last offer to settle. If a mediator’s proposal does not succeed, the parties can continue negotiating from their last position.

Blame It on the Mediator

The mediator’s proposal allows mediation participants to save face. “It wasn’t our idea; it was that darn mediator’s.” Sometimes attorneys hesitate to be completely forthright in their recommendations to their clients, particularly if they are the second or third attorney on the file. The mediator’s proposal opens the door for a frank discussion while allowing the attorney to shift responsibility to the mediator for an idea the client may find distasteful.

See also: The 1 Way to Maximize Success in Mediation  

Mediators don’t stick their necks out to come up with a proposal unless they are pretty sure it is going to be accepted. These things don’t happen early in the mediation. More likely, you will see a mediator’s proposal when it looks like parties are heading to an impasse. Because my mediator’s proposal is a reflection of the parties’ own negotiation to this point, it is generally accepted.