Once the Vermont Department of Labor has conducted an “informal conference” and a “pretrial conference” in your workers’ comp claim, but before you can proceed to a formal hearing, the Administrative Law Judge will typically require you (the injured employee) and the insurance company to attend mediation. Mediation is an opportunity for you to negotiate with the insurance company to try to resolve your Vermont workers’ comp claim. The mediation process can be intimidating for someone who has never participated in a mediation, but the benefit is that a high percentage of Vermont workers’ comp claims are settled at mediation, thus eliminating the need to attend a formal hearing.
Mediations are facilitated by a mediator. The mediator is normally agreed upon by your Vermont workers’ comp lawyer and the insurance company’s lawyer. (If you don’t already have a lawyer and are headed towards a mediation and formal hearing, it would be a very good idea to call one.) The mediator usually has substantial experience practicing Vermont workers’ compensation law, or at a minimum, substantial experience mediating such claims. He or she may specialize in representing injured employees (like me), or in representing insurance companies (like I used to do), but either way, they’ll usually be very familiar with the laws, rules, and issues that are prevalent in a Vermont workers’ comp claim. Regardless of which side they typically represent, the job of a mediator is to be objective and neutral.
A Vermont workers’ comp mediation usually begins in a conference room in which you, your attorney, the insurance company’s attorney, and the mediator sit at the table together. Because most insurance adjusters don’t live in Vermont, they aren’t usually present for the mediation. Instead, they are either on speaker phone, or else they’re available by phone if their attorney or the mediator needs to speak with them. It’s rare for your employer to be present at the mediation.
When the mediation begins, your attorney will often be invited to tell your side of the story first. If I am representing you, I would outline the relevant facts and legal issues, and I would emphasize the arguments supporting your claim. Then the insurance company’s attorney will do the same thing, pointing out whatever supports its position and emphasizing any weaknesses with your claim. These “opening statements” help the mediator understand the underlying dispute and to ask questions about anything that isn’t clear. Once completed, the mediator will put you and your attorney in one room and the insurance company’s attorney in a separate room. From there, the real negotiation begins.
Negotiations at a Vermont workers’ comp mediation can be about any number of things, including lost wages (TTD benefits), the amount of permanency (PPD benefits) you’re entitled to, or whether a particular surgery is reasonable and necessary. If you’ve made it all the way to a mediation, however, the most common outcome both parties are seeking is a full and final settlement of your Vermont workers’ comp claim. After moving you into separate rooms at the mediation, the mediator will then “shuttle” back and forth between you and the insurance company’s attorney, discussing the strengths and weaknesses of the claim with both parties, trying to convince you to lower your settlement demand, and trying convince the insurance company to increase its settlement offer. Ultimately, the mediator’s goal is to get both sides to meet somewhere in the middle.
Attending a workers’ comp mediation is usually mandatory, but whether you accept the insurance company’s best offer is entirely up to you. If the insurance company won’t do what you want it to do, or pay what you want it to pay, you have the right not to accept their final offer and to proceed to a formal hearing. In the end, however, the benefit of accepting less than you want at mediation may outweigh the risk of recovering nothing at a formal hearing. A Vermont workers’ comp lawyer is the best person to help you decide what’s best for you — besides you.