Mediation – An Excellent Opportunity in Your Workers’ Compensation Case
Pursuant to Section 440.25 of the Florida Statutes (1994), all Workers’ Compensation cases must go to mediation prior to trial. In fact, the Judge of Compensation Claims will not even set a trial date until after the case has been mediated. The purpose of mediation is to open up lines of communication and explore all the possibilities of settlement.
Once your attorney has filed a Petition for Benefits to request benefits on your behalf from the Employer and the Insurance Company (“the Carrier”), mediation will occur within 130 days of the filing of the Petition.
The goal is to resolve the dispute and relieve the overcrowded court dockets. Mediation is often very successful at resolving all outstanding issues. As a result most cases end in a complete settlement of your workers’ compensation benefits, should you wish to explore the settlement of your case.
What is Mediation?
Mediation is the 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 (i.e., 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. 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.
Here at Harris Guidi Rosner, 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 courthouse. 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 Mediation
- Assist the parties in reaching their own acceptable agreement with full exploration of all choices.
- Avoid the necessity of a court imposed decision.
- Assist the parties in understanding the terms and future impact of their agreement.
- Reduce anxiety and the negative effects of having to go to court.
Advantages of 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 best opportunity to have the insurance company pay the best settlement.
How The Process 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 is 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, also plays an active role in the mediation process. In this role, they assist all individuals affected by the outcome to reach their own settlement. The mediator will help identify issues, develop bargaining proposals, and conduct negotiations. Their goal is reaching a settlement acceptable to both 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. Their job is to facilitate the parties’ own decision making process. After an agreement is reached, the mediator will draft a memorandum of understanding. Both parties and their attorneys will review and agree to this. 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 cannot 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. You attorney will help you make 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. Any time you can speak with your attorney privately and you should as often as you feel necessary.
Costs of Mediation
A State mediation is free to you. The mediator is a state employee. Their salaries come from 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.
At times your attorney will schedule a private mediation. If it is private you will be responsible for covering mediator’s fee. Both parties share the expenses typically based on an hourly rate, plus any additional expenses such as a conference room. Typically the insurance company will agree to pay all mediation costs.
Your attorney will meet with you prior to the mediation to explain the issues in your case and the best course of action.
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