WHAT IS A MEDIATION?
Mediations are an extremely effective tool for settling workers’ compensation cases or resolving issues in Florida. Under Florida law, after a claim is filed, the case must go to mediation within 130 days. Although mediations are mandatory, neither party is required to settle their case or resolve any issues at mediation. However, most claims do resolve either thru settlement or resolution of issues at mediation. Therefore, it is important to understand what will happen at mediation.
The purpose of a mediation is for the parties to come together, with the assistance of a mediator, to try to settle the case. Neither party has the option of going to court to settle a workers’ compensation case because Administrative Law Judges in Florida do not have the authority to order either side to settle. Therefore, in most instances, the only means for an injured worker to receive a lump sum payment is by settlement.
Mediations can either be held at the State Board of Workers’ Compensation at no cost to the parties or a private mediator may be selected by agreement between the attorney for the injured worker and the attorney for the Employer/Insurer. There is a cost to mediate privately and generally the Carrier will pay the mediator’s fee. The mediator is usually paid on an hourly basis. A private mediation is typically held in one of the attorney’s offices.
The mediator’s role is to assist the parties in coming to a compromise agreement that will settle the case. The mediator is usually an attorney with years of workers’ compensation experience as well as years of experience mediating cases. The mediator is an unbiased lawyer who works for neither side and has no stake in the outcome of the case.
WHAT HAPPENS AT THE MEDIATION?
It is important to understand that while the mediation process is informal, an effective presentation of the issues is essential. Also, it is important for the injured worker to dress and act appropriately. In my experience, adjusters almost always act more favorable to claimant’s who are not hostile and ones who dress professionally. A professional appearance communicates that the individual would have the ability to make a good living but for the injury, which increases the cost in the adjusters mind of the effects of the injury.
The mediation usually begins with the mediator bringing the injured worker, their attorney, and the defense attorney into a room to discuss the merits of each party’s claim. In some instances the adjuster or a representative of the employer will also attend the mediation. The attorney for the injured worker gives a short presentation about the extent of the injured worker’s injuries, the medical treatment to date, the permanent impairment rating and the likelihood of whether the injured worker will be able to successfully return to any type of employment. The injured worker will have an opportunity to make a statement if he or she wishes to do so. Next, the Employer/Insurer’s attorney will briefly discuss his or her view of the employee’s injuries and the status of the case. Sometimes, the parties agree to waive opening statements and the negotiations begin right away.
After both sides have made their presentations, the mediator will divide the parties into separate rooms. The mediator will go into each room and discuss the merits and weaknesses of each party’s case. Before the mediation, the injured worker’s attorney will have sent a settlement demand to defense counsel.. The starting demand is always an amount more than Claimant’s counsel expects the other side to pay. The mediator will discuss this demand with counsel for the Employer/Insurer. The Employer/Insurer will then make an initial offer. The mediator will present this offer to the injured worker. The first offer is always less than the injured worker is willing to accept. It is a starting point only. The mediator then goes back and forth between the parties, adjusting the dollar amounts each party is willing to counter with. The entire process generally take several hours. All conversations between the parties and the mediator when they are in their respective rooms are confidential. The information a party shares with mediator is only shared by the mediator with the opposing party if express permission is granted.
HOW DOES A MEDIATION END?
The goal of a mediation is to reach a settlement of the case or outstanding issues. A global settlement will be a final dollar amount that each party has agreed to. A settlement of issues will be an agreement between the parties only on resolution of the outstanding issues. In either event, the settlement terms are then formalized in a written document known as a Stipulation and Agreement. After all parties have signed the Stipulation, it is submitted to the Judge of Compensation Claims for approval.
WHAT MAKES BERLIN LAW FIRM DIFFERENT WHEN IT COMES TO MEDIATIONS?
- Prior to the date of mediation, we will prepare an effective and persuasive settlement demand letter, including a detailed outline of the facts of the case, summary of the medical condition of the injured worker, and lay out the Employer/Insurer’s future financial exposure.
- Because our demands supported by the facts, they are taken seriously by counsel for the Employer/Insurer, resulting in higher settlement offers.
- We review every settlement demand with our clients and carefully explain what goes into our analysis before the demand is sent to defense counsel. That way, there are no surprises at the mediation.
- We believe in giving each and every client a realistic expectation of the value of their case.
- We are expert negotiators who know how to control the pace of the negotiations and what moves to make when. This comes from years of experience and enables us to achieve outstanding results and get the highest settlements for our clients.
- Stephen Berlin spent 17 years working for a prominent workers’ compensation carrier and fully understands how carrier’s value claims and what facts are important in their evaluation of your case.