Eight Quick Tips for Applicants and Defendants to Improve Their Mediations

• Jurisdiction: California,United States
• Citation: Vol. 28 No. 3
• Publication year: 2015
• Author: ROBERT G. HEYWOOD, ESQ.
• topic: Contracts,Insurance Law,Social Security,Workers Compensation

Eight Quick Tips for Applicants and Defendants to Improve Their Mediations

ROBERT G. HEYWOOD, ESQ.

Oakland, California

Follow these simple suggestions and you will have better success in mediations:

1. Authority

Defendant should have the person who controls the money present and participating. Not having full settlement authority is the single most important reason mediations do not result in resolution.

Applicant should have at least one key advisor, such as a spouse or adult child, present as well. Applicant may be called upon to make decisions with profound personal consequences. Having one or more advisors present helps applicant make the right decision.

2. Payment Information

Defendant should have up-to-date and accurate information about total disability (TD) payments (including dates and amounts), permanent disability advances (PDAs), and earnings. If there is a claim for overpayment of TD, defendant should be prepared to discuss dates and amounts as well as the basis for the claim.

Applicant needs to understand that in most cases PDAs will be deducted from the settlement amount and that applicant's attorney has earned a fee on the PDAs as well as for any "new money." An applicant who challenges defendant's calculation of earnings for indemnity benefits should be prepared to provide records of wages, including overtime, earned during the 12 months preceding the injury, a contract showing expected future wages, or other documents that substantiate the claim of higher earnings.

3. Accept Reality

Defendant shouldn't claim that all of applicant's covered future medical needs are subsumed in the Medicare Set Aside (MSA) and limit the settlement offer accordingly...