Give Peace a Chance

In any contested case pending in our Court, typically there will be two opportunities — before an interlocutory, expedited hearing and before a final compensation hearing — to explore settlement options, using the help of the Bureau of Workers’ Compensation’s experienced, highly effective mediators.
Allow me to brag on our mediators for a moment. They have all received 40 hours of Rule 31 Civil Mediation Training, and many hold advanced degrees in a variety of disciplines, including law. Before joining this Court, I practiced in civil litigation and participated in countless mediations, conducted quite often by neutrals charging hundreds of dollars per hour. Without a doubt, I would rate our staff of mediators on their same level or higher. And the best news is, they don’t cost the parties a dime.   
The Nashville mediators, from left to right, are Jay Hicks, Sarah Byrne, Amanda Terry and Jeannie Henderson. Brian Holmes is director of Mediation and Ombudsman Services of Tennessee (MOST).
I recently asked them how they believe parties can maximize their chances for settlement. Here’s what they had to say.
Understand the mediator’s role. We’re facilitative mediators. That means we don’t assign a value to anyone’s claim. You don’t have to convince us about the merits of your case; you have to convince the other side about the strength of your position. Our job is to help both sides find common ground. We’re not an advocate for either party. And, importantly, we love to answer procedural questions and be helpful, but we can’t give legal advice.
Bring multiple sets of documents. Everyone can literally be on the same page, and it minimizes delays.
Come prepared with knowledge of the file. We’re intimately familiar with your file by the time we sit down with you. Frankly, it’s a little embarrassing when it’s apparent that our knowledge of your case is far superior to that of one of the participants – plus, it drags the mediation on much longer than it needs to be.
Review/Complete the appropriate forms before the mediation. This includes the First Report of Injury and Wage Statement, and in particular before a final mediation, the EOB and final medical report.
Employers’ Counsel, have the adjuster/decision-maker on stand-by and available. Sometimes information comes out in mediation that can impact the value of the claim.
Be reasonable. For employers, this means to have a reasonable offer with open medicals in appropriate cases.Holding a claim hostage over future medicals can be a waste of everyone’s time, when it is clear that the judge will likely leave medicals open. Likewise, for employees, keep the expectations realistic regarding the value of a claim.  
Attorneys, if you need time to speak with your client before the mediation, make arrangements to show up early to avoid delays. It’s just common courtesy to respect everyone else’s time.
Bring cookies to share. Cookies set a tone conducive to settlement and make your mediator very happy. OK, cookies are not “required.” Rather, the key word here is “share.” There’s something very valuable in sitting down across a table from someone and sharing some food and light conversation. It sets a tone that can be very conducive to civil, productive negotiations. Along these lines, please get a good night’s sleep and eat a meal before your mediation.  

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