What to Expect at Mediation

What is a mediation?

A mediation is a settlement conference with you (you are called the plaintiff), your lawyer, the defendants’ lawyer, and the mediator – a lawyer with specialized knowledge and training to help to settle cases. Sometimes a representative of the defendants will be there, like a safety manager, or the insurance company’s representative, called the adjuster.

Do I have to go to a mediation?

Yes. Mediation is mandatory whenever a hearing is requested. You must attend the mediation.

What happens at the mediation?

A mediation is nothing like going to court! We will meet together, at a table or on Zoom. The mediator will explain the process of the mediation – like that it is confidential, and that nothing in the mediation will later be used in court. The lawyers will make statements about your case. Usually the statements are short. Your lawyer will go first. You may want to take notes so you can ask your lawyer questions later. You do not have to talk if you do not want to. The defendant’s lawyer may be looking for your reactions to the presentation, so you may want to remain neutral.

Once the lawyers finish speaking, the mediator puts you and your lawyer, and the defendants along with their lawyer, in different rooms. (If your mediation is on Zoom, you will be in separate Zoom rooms). The mediator will take our demand (the amount of money we start with) to the defendants.

We may also discuss your job and other issues, such as money you may have to pay back to insurance or for outstanding medical bills. We will also discuss Medicare because we always have to take Medicare’s interests into account. If you are receiving Medicare or are close to receiving Medicare, we will have to discuss setting aside money for Medicare-related medical expenses. After discussing the demand, the mediator will come back to us with the defendants’ offer. The mediator goes back and forth between the rooms with offers from us and from the defendants.

Sometimes a mediation can feel like haggling over the price of a used car. But it serves a useful purpose. It may be helpful for you to think of this not as trying to win or make the defendants lose. This is a process where we negotiate and try to come to an agreement that everyone can live with.

What we discuss with the mediator will remain confidential. The mediator will not share with the other party any of our information unless we ask them to do so. Because the mediation is not a hearing, no decisions regarding your claim will be made unless everyone, both you and the defendants, agrees.

At the end, you may have a settlement. If you do settle at the mediation, you will sign an agreement. That agreement is final and binding. So it is very important to get everything nailed down. If you decide to settle any other issues, like your job status, that will require a separate agreement.

How long is the mediation?

That depends on how much we can get done. We usually schedule a block of 4 hours. But the mediation could be very short if the demand and the offer are far apart. Or it could take all day if the issues are complicated.

What to bring

• Food. There are restaurants within walking distance, and typically have snacks at our office, but you may want your own during a long mediation.
• Something to read, work, whatever you need to spend the time during the breaks. We often wait a long time for the defendants to come back with an offer.

Can I bring someone with me?

Sure! But because of confidentiality, unless they are your spouse, they may have to remain in another room when we are discussing your case.

What should I wear?

Dress comfortably. You do not have to dress like you are going to court.

Does the mediation cost me money?

Yes, the mediator charges for the mediation, and the NC Industrial Commission has a mediation fee. You are responsible for half of the costs and half of the fee. But the good thing is that the defendants have to pay the full cost of the mediator after the mediation. If we settle, we may be able to get the defendants to waive your part of the costs, and the fee.

How do we come up with the amount of money to demand?

We take into account the amount of money that you may be entitled to receive in your case. A big part of that is whether your case is accepted, or it has been denied by the defendants. If your case is accepted, you are entitled to receive benefits. If your case is denied, there is no money owed to you unless we settle or we win your case.

Sometimes workers’ comp cases are neither accepted nor denied, but the defendants are paying for medical treatment. While this may not make sense to you, because everyone knows that you were injured at work, we will have to deal with that fact.

We will always look at information that is relevant to your claim, such as how serious your injury or condition is, your age, education, and employment history, and the law that pertains to your case. There may be other issues, such as liens (the right for other companies or agencies to get their money back from you) and future medical issues, that we take into account.

Unfortunately, we cannot take into to account your pain and suffering in the amount of money we suggest to you when we are making a demand. You will remember that we are very limited in what we can get from workers’ compensation. Pain and suffering are not damages that are available.

Do I have to settle?

No. Settlement is voluntary. Sometimes it is a good idea to settle, though. We will be there to guide you.

What if the defendants refuse to settle?

Settlement is voluntary for them too! They may not offer enough money, but the NC Industrial Commission cannot make them settle either.

When will I get the money if I settle?

Like many things, that depends. It may take two months or longer. Why so long?

• The defendants’ lawyer writes a longer agreement, called a compromise settlement agreement.
• We may ask for changes to the agreement.
• We must review the agreement with you.
• You will need to sign it, and it may have to be notarized.
• You return it to us, and we send it, along with other documents, to the defendants.
• The defendants send the agreement and your medical records to the NC Industrial Commission for review and approval.
• Once the agreement is approved, the defendants have 24 days to mail the check. The defendants will send a separate check for our fee, and both come to our office.
• We ask you to sign a statement confirming how the settlement funds will be paid out.
• We deposit your check into our trust account and write checks for any expenses, medical bills or any reimbursements.

How will you help me prepare?

We will meet by phone or in person to discuss the issues. We may share documents with you. We will discuss money and how we are looking at the strengths and weaknesses of your case. We will discuss how likely it is that you will win your case, how long it will take to get to court, and to get a decision. We will answer your questions!

What happens if I don’t settle my case?

Your case will be set for a hearing within 2 to 3 months after an unsuccessful mediation. We will spend time gathering evidence. We may want other witnesses to testify, so we will need their names and contact information. We will meet with you in person or over the phone to go over documents and prepare you to testify.

A workers’ compensation hearing is different than a jury trial or traffic court. The judge is called a deputy commissioner. There will be a court reporter who is taking down all of the testimony. You will have to testify at the hearing, and the defendants’ lawyer will cross-examine you. Your doctors will testify after the hearing, and that usually takes another 2 or 3 months.

Then your lawyer will write a brief – a summary of the issues, the facts, and the law – within 30 days of all of the evidence coming in. The defendant’s lawyer will write one too. The judge has 6 months to make a decision. Last, there may be an appeal of the decision.

There is no immediate decision. Be prepared to wait up to a year for a decision in your case. If you are not receiving workers’ compensation benefits, that can be a big problem to have to wait that long.

Questions about your mediation? Contact us now.