Mediations – A Primer

Whenever a claim for Long Term Disability benefits goes into a lawsuit, the Court will order the parties to engage in pre-trial settlement procedures, either in the form of arbitration or mediation.

Mediation is the course which Long Term Disability benefit claims generally follow.  While the Court orders the parties to mediation, the process is voluntary in nature.  Allow me to explain.

During a mediation, the parties will start out together in a conference room.  The Mediator will be at the head of the table.  The mediator is a lawyer certified by the Florida Supreme Court who is mutually agreed upon by the attorneys.  There are a number of mediators I have found to be qualified to handle the intricacies of claims for Short Term Disability or Long Term Disability claims.  I will tell you what I know about your mediator if we ever get to that point in your claim.

During the mediation, we start out on one side of the table and the insurance company’s lawyer and representative on the other.  The Mediator will start by explaining the process.  Then each side states their position.  The parties will then go into separate rooms with the Mediator going back and forth to see if an agreement can be reached.  While the Mediator will try to facilitate settlement, there is no authority given the Mediator to order the parties to do anything.  The only real authority the Mediator has is to determine when the mediation is over.  So, while we are ordered to go to the Mediation, no one is required to compromise at all.  The Court just wants to ensure that settlement has been fully explored before valuable court time is used to make a judicial determination on your Long Term Disability benefits claim.

The goal of mediation cannot be to settle your claim.  This is because we never know if the insurance company will offer enough money to make settlement possible.  So, the goal is to find out the most the insurance company will pay.  Of course, the hallmark of settlement is compromised.  To properly do so, we must understand the insurance company’s position even if we do not agree with it.  This is because we need to assess the possibility a Judge or jury might agree with their interpretation of the evidence.  The mediation is the opportunity for the parties to decide how to resolve their differences before turning it over a third party (the Judge or jury) who is an “all or nothing” machine, i.e., either all of the benefits are awarded or none of them are.

The opportunity of the mediation must be seriously considered.  It is a decision day.  As many mediators say, it is the day the insurance company is in the position to pay the most money to settle and the day you are in the best, most informed posture to make the best decision for you.  It is my intent to guide you through this process.  Because the Court will have ordered each side to pay one-half (½) of the mediator’s fee, we should use the opportunity to fully explore every possibility.  While the Mediator is a lawyer, you cannot rely on anything he says as advice such as you can with what I say to you.  However, I think you will hear the Mediator say many things which might assist you in your thinking.  Also, there will be lots of time for you and I to privately discuss your case during the mediation.

The whole process is confidential.  Nothing which occurs during the mediation can be repeated in Court (except in some most unusual circumstances).  In fact, when the Mediator is meeting privately with us, nothing we say can be repeated to the other side unless we okay it (and vice versa, of course).  This facilitates candid communications.

There are many variations which can arise in every case, involving points of law, interpretation of evidence and other issues which are part the “legal wrangling” of the negotiation process.  Rest assured it is my intent to be the best prepared person in the room.  The one thing which must be kept in mind that sometimes it is not possible to settle the case in a traditional, lump sum payment form.  In this case, alternatives must considered.  We will have to be prepared to be nimble on our feet as we consider alternative, more artful forms of resolution.  Sometimes these alternatives do not work out but we must be ready to explore them.

When considering the course of the case if it does not settle, one must keep in mind what the Judge or jury can award.  If a favorable outcome is reached, the only thing which can be awarded is past benefits.  While your claim would be re-opened that does not mean that a new ground for denial cannot be asserted sometime in the future. The Court cannot address these potential future problems just as the Court cannot award future benefits because there is no way to prove the entitlement thereto ahead of time.

Herbert M. Hill, P.A. is a law firm located in Orlando, Florida with a practice extending throughout the state of Florida.  While the vast majority of cases handled are for disability insurance benefits, areas of practice include employee benefit claims of all sorts.  The firm handles any claims arising under the Employee Retirement Income Security Act (known and referred to as “ERISA”) for disability benefits, medical benefits, retirement benefits of any sort, including pension, 401k, termination agreements or the like as well as claims arising under private disability policies.

By |2018-12-26T15:43:34+00:00December 26th, 2018|Blog, Long Term Disability, Short Term Disability|0 Comments