The Language of Mediation

Posted by Elizabeth Trask on Nov 8, 2018 11:05:00 AM

Mediation can play an important part in settlement, helping both sides communicate and come to an agreement. However, a lot of terms might be foreign, terms such as caucus, ADR, and transformative mediation.

Understanding the language and process of mediation is critical to reaching settlement.

What is Mediation?

Mediation is a meeting conducted by a Mediator, a professional neutral, not affiliated with any party, who helps people negotiate disputes; manages the mediation process, not the outcome

Convening - the process of getting everyone to come to the mediation, agreeing on a date, time, place

Negotiate – to deal or bargain with another, to make an agreement

A mediator will hear parties’ concerns and move the settlement process forward. He or she may also ask clarifying questions to help parties recognize and resolve all issues. Involving a mediator can help reduce negativity or hostility.

In caucus, the mediator meets the plaintiff and defense teams separately in private sessions. Anything said in caucus is not disclosed to other parties without consent.

Ultimately, the parties participating in mediation decide its direction. Unlike in court, parties can take as much time as they need. The goal is to get everyone on the same page and comfortable with the resolution.

Mediation is a form of ADR – alternative dispute resolution:

ADR – alternative dispute resolution – refers to a variety of conflict resolution methods other than a court trial, such as mediation, arbitration or a summary jury trial.

Mediation is time-efficient, cost-efficient, and usually less stressful for the injured party. A lot of emotions and feelings are involved. Mediation may be the injured party’s only chance to tell their story to a disinterested person and still have control of the outcome.

Teddy Snyder, a California workers compensation mediator, emphasizes that, “mediation is a risk-free place for parties to define the issues and get neutral feedback. Unlike settlement meetings without the mediator’s presence, parties can be candid about the flaws as well as the merits of their case. Mediation is highly effective in getting parties to resolution.”

Who Attends the Mediation

On the plaintiff side, the injured party may be pro se (unrepresented) or represented by a plaintiff/applicant attorney. The injured party may also bring in their spouse, sibling, children, or other trusted advisors.

The defense side may consist of the adjuster, defense attorney, and others such as structured settlement brokers.

The plaintiff or applicant attorney is there to represent the best interests of their client, the injured party. The adjuster is there to represent the insurance carrier or self-insured employer in the settlement. Structured settlement brokers may be brought in to help explain how annuities, or payments over time, can bring value to the settlement.

Often parties ask Ametros to attend a mediation. Like the mediator, Ametros is neutral, not favoring one side or another. We are present to explain our services and answer questions.

Mediation Process

Joint session – every party/participant is in the same room, usually at the beginning and end of a mediation, sometimes in the middle for the purpose of collaborative brainstorming. Sometimes the mediator will ask parties to give an opening statement. At the initial joint session the mediator will explain the process, including confidentiality.

Confidentiality – By law, all communications conducted under the mediation umbrella are protected from disclosure in any other civil forum. That includes pre-mediation consultations and post-mediation follow-up.

Caucus – a private session during mediation with one party’s representatives and the mediator. Information shared with the mediator in caucus is not disclosed to the other side without permission. In the caucus, mediators get a feel for what each party wants, reviewing settlement proposals, for instance, for indemnity or for future medical. This is where the numbers start to emerge. The goal is to reach a settlement that is fair to all parties.

Strategies at the Mediation Table

  • Evaluative mediation: The mediator will focus on the likely value of the case in his or her opinion based on their experience, considering different scenarios. This method tries to help the parties reach a resolution instead of having a contested hearing or litigation that is time-consuming, emotionally draining and stressful.
  • Active listening: is a way of listening that focuses entirely on what the other person is saying and confirms understanding of both the content of the message and the emotions and feelings underlying the message to ensure that understanding is accurate
  • Collaborative problem-solving: the process of resolving a dispute or potential dispute through co-operative, face-to-face interaction between the affected parties

Evaluative mediation tries to clarify what the parties want and why. This forum allows people to consider available options and the benefits of each option. The role of the mediator is to help parties communicate. This method looks at the parties’ positions and helps answer WHAT IF questions.

Positions & Interests - Positions are what people in negotiation say they want. Interests are what they need. Interests underlie positions. A position can mask the person's real interest.

Mediation Outcomes

After mediation, there are variety of possible outcomes, including settlement, agreement not to settle, and settling with stipulations.

  1. The first outcome is a full and final settlement, where all parties come to an agreement on the settlement amount and terms. When a case is settled full and final, the claim cannot be reopened and cannot go back in front of a workers’ compensation board or commission.
  1. The second outcome is the parties agree not to settle. In this instance, parties surrender control of the outcome to a judge. After the current set of contested issues is resolved, the payor for the employer will continue to manage and pay for allowed future medical treatment. If issues arise in the future, parties again need to decide whether to settle or litigate.
  1. The third outcome is to settle with stipulations. The injured party and the insurance carrier or self-insurer agree on the indemnity amount and perhaps some other issues, but future medical care remains open and subject to further litigation.

Mediation helps parties get past bluff and bluster to satisfy their real needs. Mediators help all parties at the settlement table communicate, speak the same language, and hopefully reach agreement.

Mediation can be an important component of settlement negotiations, helping parties focus on where they are today rather than the past and on how to move into the future.