Brief Description of the Mediation Process in Workers’ Compensation in Florida
Pursuant to Section 440.25 of the Florida Statutes (1994), all cases must be mediated prior to trial. Mediation usually happens within 120 days after a Petition for Benefits has been filed. All cases must be mediated before they are able to go forward to trial. The purpose of mediation is to open up lines of communication and explore all the possibilities of settlement in order to resolve the dispute and relieve the overcrowded court dockets. Mediation is often very successful at resolving all outstanding issues and usually results in a complete settlement of your workers’ compensation benefits. Please understand that often in workers’ compensation settlements, a voluntary resignation and general release is required as part of any overall settlement.
Mediation is defined as a use of a neutral and impartial third part to help resolve a dispute. The mediation conference is informal, confidential, and privileged. The mediator has no decision-making authority (meaning any agreement reached will be by mutual consent of the parties). The mediator only helps the parties analyze the issues and generate alternatives for a negotiated settlement.
Mediation is essentially a communications process with the mediator serving as manager of that process. The role of the parties is to recognize that people in a dispute can come to the table to negotiate and in good faith try to resolve their differences. Familiarity with the case, openness, and flexibility are all that is required.
If you are a client at Harris Guidi Rosner, P.A., your attorney will attend the court ordered mediation conference with you. Your attorney will be prepared to discuss the facts and legal issues involved in your case and to generally help you evaluate your case. The ultimate decision-making authority of whether or not to settle the case rests with you.
The mediation conference is usually held at the Office of the Judge of Compensation Claims. A private mediation will be held at one of the attorneys’ offices, a court reporter’s office, or some other space. Mediation of workers’ compensation cases usually last from one to four hours.
GOALS OF A MEDIATION
● To assist the parties in reaching their own acceptable agreement with full exploration of all choices.
● To avoid the necessity of a court imposed decision.
● To assist the parties in understanding the terms and future impact of their agreement.
● To reduce anxiety and the negative effects of having to go to court.
ADVANTAGES OF A MEDIATION
● Provides the parties with the tools to structure an agreement that is in their best interest.
● Facilitates the exchange of information, ideas, and alternatives for settlement between the parties.
● Provides the opportunity for a less expensive and time-consuming conclusion that occurs with a court trial.
● It is usually the prime opportunity to have the insurance company pay the best settlement.
HOW A MEDIATION WORKS
The process of mediation begins either by an order of the Court or by agreement of the parties. You, your attorney, the adjuster, the adjuster’s attorney and the mediator will all meet in a single room. Each side will be given the opportunity to explain their position and to respond to the other’s side of the story. You will not have to answer any questions or speak at all during this portion of the mediation unless you wish to. After opening statements, you and your attorney will go to a separate room (away from the adjuster and their attorney) to meet with the mediator privately. The mediator will then go back and forth between the two sides trying to get each side to compromise and move closer together.
The mediator, a neutral and objective participant, plays an active role in the mediation process by assisting all individuals affected by the outcome to reach their own settlement. The mediator will help identify issues, develop bargaining proposals, and conduct negotiations with the goal in mind of coming to a settlement that is best suited to the needs of the parties. The mediator clarifies and organizes details, prompts discussion and cooperative communications, as well as manages conflict.
The mediator DOES NOT make any decisions for the parties but facilitates the parties’ own decision-making process. After an agreement has been reached, the mediator will draft a memorandum of understanding which will be reviewed and approved by the parties and their attorneys. If necessary, the attorneys will draft a settlement agreement from the terms of the memorandum and file them with the Court.
ROLE OF THE ATTORNEY
The mediator is not authorized to give either party legal advice. The mediator’s role is neutral and not a substitute for independent legal advice. The mediator does not represent either party, but focuses on helping the parties reach their own settlement. You should rely on your attorney for advice. While the decisions reached in mediation are made by the parties, it is important that they should be informed decisions.
Your attorney will be with you at all times during the mediation. Your attorney may speak privately with the adjuster, the adjuster’s attorney, or the mediator. You will never have to speak to anyone except your attorney. You may at all times speak with your attorney privately and are encouraged to do so as often as you feel necessary.
COSTS OF A MEDIATION
A state mediation is court ordered and is therefore free to you. The mediator is a state employee and is paid a salary by the state regardless of the results. The mediator has absolutely no interest in the outcome of the mediation, although he or she sincerely wish to help resolve all issues.
Sometimes your attorney will schedule a private mediation. If this is done, you may then be responsible for the mediator’s fee. The mediator’s fee is determined on an hourly basis and both parties share the expenses. There may be a charge for a conference room and that will be deducted from your settlement. Most of the time the insurance company will agree to pay all mediation costs.
If you have any questions about your workers’ compensation claim or the mediation process, please contact us at Harris Guidi Rosner for a free consultation about your case and rights at (904) 777-7777 or email us at firstname.lastname@example.org.
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