May 15, 2017
When You Know the Claim Should Settle
by Teddy Snyder
It’s hard to play in the same game on workers' comp when one of you is at Dodger Stadium in L.A. and the other is at Angel Stadium in Anaheim.
Your best friend in negotiation can be your opponent—provided you put your report where your mouth is.
Too often, parties withhold evidence that would support their position. Sure, your opponent’s initial reaction may be to denigrate your evidence. But your opponent may not have anything to refute it. It might even be too late for him to try to work up something.
See also: How Should Workers’ Compensation Evolve?
Help Your Opponent Convince the Client
So why did it take so long to get to this point? Because you have been hiding the ball. If you expect large sums for a life pension or for treatment the carrier had denied. plus penalties plus fees, be prepared to show why the employer was wrong. You can’t expect opposing counsel to advise the client to change the case evaluation if you’ve been keeping secret the reports that crush the opponent’s position.
Of course, timing is important. There are many reasons why you might not want to show your hand too early. But by the time you are at the mediation table, you must be prepared to put your cards on the table.
How Mediation Confidentiality Helps
Perhaps you have a sub rosa video or some other smoking gun the other side doesn’t know about. Your mediation brief can be confidential– for the mediator’s eyes only. When you are in caucus (a private meeting with the mediator), you can discuss secret information with the mediator. If you don’t want it disclosed to the other side, it goes no further. But putting the mediator in the picture allows her to frame the issues in the case to maximize the potential for settlement.
Negotiations succeed when parties are in the same ballpark. If you don’t communicate what your ballpark is, your opponent will assume that their evaluation is the correct one. It’s hard to play in the same game when one of you is at Dodger Stadium in L.A. and the other is at Angel Stadium in Anaheim. To bring everyone to the same field, you have to communicate.