The Florida Administrative Code, Section 60Q-6.111 (1) (c.) – AUTHORITY AND DUTIES OF MEDIATOR, promulgates that “The mediator may meet and consult privately with any party or parties or their counsel during the mediation.” Regardless of this F.A.C. Rule (which applies to both State and Private W.C. mediations), for some unknown and inequitable reason to me, the “Fl. W.C. Mediation Culture” and the Fl. W.C. Bar does not expect or demonstrate any concern about this F.A.C. Rule. being followed. Meanwhile, in any other type of civil or administrative mediation in Florida, the mediator speaking with both clients is not just adhered to, it is customarily expected. Which, I find very effective in mediating a successful full resolution of “difficult, complex, and/or significant exposure” Workers’ Compensation cases, at a minimum.
E/C counsel frequently tells me when I request or suggest speaking with their client, something like “that may be a problem for my client. “-Most defense counsel who have apparently not previously experienced this type of request or even suggestion by a private mediator to at least meet their client, respond with much surprise and attempt to act as the “gatekeeper” of the adjuster. When I further inquire about their client’s demeanor, experience, and opinion as to the subject case, I usually learn of obstacles the E/C counsel ran into with obtaining the authority they recommended and/or their client’s often different opinion on past claimed benefits.
This initial dialogue by the mediator with E/C counsel begins to “break through the castle walls” and allows me “inside” to meet and speak with the adjuster. It is a shame all of this is necessary, considering the F.W.A. Rule. However, I find this typically works if the mediator accomplishes this trust and acceptance of help from E/C counsel. Before actually speaking to the adjuster, I recommend the mediator first discuss with E/C counsel the most strategic way to “independently” discuss (subtly persuade) their clients to be open to not being married to their initial authorized authority and cast-iron clad opinions as to pending issues.
The mediator needs to initially let the defense attorney know they are most definitely not going to beat up on their client and express how that would naturally make the adjuster very defensive and prevent the mediator from being able to settle the case., Rather, how the mediator can serve the E/C counsel by all three speaking together, telling the E/C attorney to gently push back against me some so the adjuster sees you are their “warrior”, but don’t forget to subtly agree with my points enough to get you what you need to settle. Next, I suggest the mediator intentionally recommend that the adjuster and E/C counsel speak privately, which was also planned with the defense counsel before that final chat with them when the mediation reaches that inevitable “gap.”
Again, all of this should not be necessary under the F.A.C. Rule! Yet, if any mediator is forced to mandate access to the adjuster per the Rule, they will immediately lose all credibility of being unbiased, be unfairly viewed as the advocate for the Claimant and Claimant’s attorney and there is no way that case will settle or continue beyond that “forced entry” which should not exist in W.C. Mediations! Further, I can tell you in this awkwardly unique W.C. mediation culture, which is so very different from other types of law, that most adjusters believe, and also defense attorneys to a certain extent, that the private mediator is there for them to be a part of their team. This has been expressed to mediators, even when the mediator politely and professionally does not agree with their opinion which is off the charts!Therefore, to be effective and not have the E/C and their counsel believe the mediator is biased against them, the mediator must be cognizant of this real dynamic and “walk a tightrope”, many times. To help accomplish this I suggest the mediator when first speaking to both the E/C counsel and the adjuster, simply ask them to accept me and what I have to say as not being an advocate for the Claimant or Claimant’s attorney, but rather assume I was a member of the roundtable that may have occurred a week ago to discuss the vulnerable areas of potential exposure in arriving at the money to settle this case. If there was no round table and it isn’t a significant case I am meditating, to then accept me as the defense attorney’s fellow partner or associate, who is sitting in on the mediation and has been invited by that defense attorney with the permission of the adjuster, to chime in with my thoughts so that they don’t take the mediator’s suggestions, thoughts, and concerns regarding potential exposure as adversarial. Once, the mediator is speaking to the adjuster, if done being congenial yet expressing sincerity with getting the case resolved and reciting the salient medical and/or legal points raised by their counsel before going into the mediator’s perspective of the E/C’s potential risks of exposure as to those “points”; as well as allowing the adjuster to fully express their perspective (“purge”), it naturally causes the adjuster to be more ‘invested” in getting the case settled. I believe this naturally results since they are now not so analytically and psychologically remote from the process. Importantly, they are now learning/experiencing firsthand the pivotal facts, dynamics, and intangibles at play in the mediation itself and understand/accept/why it may take more money to get the case resolved rather than the initial authority they allotted while evaluating the case in a vacuum in the weeks or days before the mediation.
However, an example of the flipside which is even more surprising yet consistent with this W.C. Mediation Culture is when regardless of whether we are doing a Zoom mediation, live mediation, or even a telephonic mediation with all of the parties on the phone assuming the attorneys want to do opening statements; and the defense attorney says to the claimant attorney, “I don’t think it’s really necessary that my client be on the phone since I will share everything with them.” If this occurs, my frequent experience before I even have a chance to share that I believe the adjuster participating in such initial joint session would be very beneficial and why, is to hear the Claimant’s attorney 90% of the time immediately respond by saying something like, “ I think that is fine as long as you are going to communicate everything that I share.” This one aspect of the W.C. Mediation Culture just allows it to become more entrenched as the appropriate protocol versus aligned with the F.A.C. and thus heightens the reasonable expectations of such protocol of less experienced defense counsel and their less experienced adjusters as being the norm. I can unequivocally tell you that regardless of any mediation in which I have ever participated, whether it be as a mediator or during my active litigation career (either when representing the injured worker or the employer/carrier), making that personal connection with the adjuster during an opening statement as the claimant attorney makes a significant beneficial impact with the adjuster if done with absolute professional decorum and with an accurate and thorough command of the past and current medical and indemnity issues and/or future reasonable exposure of the same.
Under 60Q-6.110 (5), the F.A.C. requires a claims representative to attend the mediation and have full authority to resolve all issues or the employer if uninsured or self-insured regardless of whether they are represented by counsel. This requirement in light of what many times occurs practically is another major reason why I am pointing out this enigmatic “Fl. W.C. Mediation Culture” and asking why mediation is a one-way street in workers’ compensation. How many times have you and the mediator been told by the defense attorney, “Well my adjuster is out today or is mainly going to be unavailable due to meetings, but I have authority. This lack of participation by the adjuster is unacceptable in every other type of law personal injury law that I’ve ever either practiced or mediated like a simple car accident case where the adjuster from Progressive, State Farm, Geico, or wherever is either present live, telephonically or by Zoom. In my opinion, based on what I hear and learn on the other side of the curtain, I strongly suggest Claimant attorneys not go forward with a mediation if there is no adjuster with full authority present or at least available the entire time. Therefore, every time I speak to that E/C attorney, their adjuster is presumably being kept fully and completely up to speed with everything that is happening. Versus, the “one-way street” that should not occur in a workers’ compensation case in Florida.
I wanted to share these issues/points with all of you to get you thinking about this prevalent W.C. mediation culture with Workers’ Compensation mediation. I invite you to please email me and share with me your experiences and why this is becoming the accepted norm. I hope discussing this topic will be a catalyst for some to modify how they may have responded previously to some of these situations, to ensure the culture of W.C. mediations is more effective in obtaining the result you seek for your clients.
Theo Johns, Esquire
35 Years Fl. W.C. Experience
Fl. State-wide Private Mediator
Legal Solutions of Florida
info@legalsfl.com
Office: 904-758-8996
Cell: 904-509-5297
https://legalsolutionsofflorida.com
Online Calendar for Scheduling at https://legalsolutionsofflorida.com/scheduling/