What is Mediation?

Only 11 1/2 More Hours…

You have been through endless medical treatments, been to a QME or AME evaluation, and then a reevaluation, sat through your two hour deposition, dealt with an endlessly frustrating insurance company (even months before you obtained an attorney), been to Oakland for a hearing(s), gone through maybe one or two surgeries and subsequent recoveries, and now you are finally at mediation, a mediation that can at times seem as drawn out and frustrating as all that has been outlined above.  However, don’t get discouraged.  Like anything else you will encounter in the workers’ compensation system, it is important to at least attempt to keep a positive attitude and to keep perspective.

If mediation is something that your attorney has suggested or believes would be a good idea given the facts and circumstances of your case, it’s typically for a good reason.  Sometimes the two sides (you and the insurance company) just cannot agree about anything.  The only thing you can agree on is that you need a third neutral party to come in and assist with communication and finding some common ground to work with.  This third neutral party is called a mediator, and they will be present at the mediation session.  The mediation session is designed to help facilitate settlement of your claim.  Needless to say, this can take hours, and by hours I mean many hours.  That is why it is important to come prepared, mainly for two reasons: 1) So you yourself don’t go crazy (there are only so many cups of coffee you can drink and texts you can send) and 2) So your attorney can effectively put pressure on the other side without major distractions.

If you have been to the Workers’ Comp Board in Oakland, you know how time consuming/boring it can be when attorney’s are negotiating.  Mediation can be like going to the Board, except longer and without the people watching in the lobby.  Like we often tell clients to bring a book or a magazine to the Board, the same goes for mediation.  Feel free to bring books, magazines, even a portable DVD player with headphones (you might get three movies in during a mediation).  If you want to bring snacks/drinks with you feel free to do that also.  And don’t forget to get someone to take care of your kids/pets on the day of mediation, since you could be gone for the day.

One of the reasons behind why the mediation can drag on so long is because the Defense Attorney could count on you getting tired or hungry, and use it leverage in negotiation, counting on you wanting to leave early and settling for a lesser amount than they ultimately would be willing to put on the table if they had to.  That and they bill by the hour, so the longer they are there, the more they get paid.  That’s not a bad thing, that’s just how Defense Attorney’s are compensated.

However, more often than not the mediation takes a long time to complete because there are simply fundamental areas of disagreement over certain issues of your claim that need to be creatively worked through, and that work takes time.  You are not at mediation because you have an easy case.  You are there because your claim is most likely complex or you also are pursuing a civil claim and are attempting what attorney’s call a global settlement.

The most important thing to remember out of all that is put forth above is: be prepared for a long day of mediation, after all, at the end of the day, your claim could very well be resolved, making those twelve hours spent in a conference room or office with your attorney worth it.

Rodman J. Martin