The mediation process typically begins when one party proposes it as an option. From there both parties will agree upon a registered neutral, or mediator. The person is someone who has undergone a significant amount of training specifically aimed at assisting parties towards reaching a common ground. A good mediator helps focus both parties on their needs and interests, rather than on their rights and positions. A major benefit of mediation is if efforts prove unsuccessful, both parties still maintain their right to a hearing before the Board. Mediation may also serve the additional point of unintentionally, and cheaply, aiding in the discovery process.
There are no “official rules” of mediation, but that doesn’t mean it’s the wild west of dispute resolution. After entering the room both parties usually sit opposite of each other with the mediator at the head of the table. The mediator will typically introduce both himself and each the parties. From this point the mediator will try to get conversation going by asking for the story of each side. It is important to remain cordial through this process. Even though you may want to reach across the table and give a claimant a strong dose of reality, it’s best to assume that this will happen during negotiations.
One of the best things you can do to prepare is to enter the room with a range of numbers for which you would be willing to settle. On one end, what is your maximum authority? On the other, what’s the smallest amount you think a claimant would reasonably go for? A reasonable offer in good faith can often get things moving and will let claimants know that your intention is to at least put something on the table. In fact, the vast majority of negotiations are settled squarely between the first reasonable numbers that each party gives.
It is important to remember that even an “unsuccessful” mediation can prove productive in the future. An “unsuccessful” mediation can serve the purpose of reigning in the unrealistic expectations of a wayward claimant. Think of it as a wake-up call.
That said, often mediation is successful. If a claim has gone on for far too long it can be an extremely effective way to quickly and inexpensively resolve your matter.