Mediation is an effective way to resolve long term disability (LTD) disputes, yet most people are not familiar with what mediation entails. This blog post will cover the top 10 most common questions people have regarding LTD mediations, including:
- What is a mediation?
- Who attends the mediation?
- Who is the mediator?
- How do I prepare for mediation?
- What happens at mediation?
- Will I be asked questions by the other lawyer?
- Can the mediator decide how my case is settled?
- What are the advantages of mediation?
- What are the disadvantages of mediation?
- What happens if my claim does not settle at mediation?
These are all good questions, and some may require a more detailed explanation than provided here. You should consult your long term disability lawyer for more information. If you do not yet have an LTD lawyer, Michael Jordan would be happy to answer any questions you may have, without fee or obligation.
What is a mediation?
A mediation is a settlement meeting. It provides an opportunity for the parties to a dispute to resolve their differences without going to court. For this reason, mediation is sometimes referred to as “alternative dispute resolution”, even though far more disability claims settle at mediation than are adjudicated at trial.
Who attends the mediation?
You will attend the mediation with your long term disability lawyer. A representative of the insurance company will also be in attendance with their lawyer. The insurance representative who attends mediation is not the same person who denied your claim or appeal. Rather, it is someone who only deals with claims in litigation. The mediator will also be present.
Who is the mediator?
The mediator is usually a lawyer with many years experience litigating long term disability disputes. He or she is completely neutral in the process and does not give legal advice or make recommendations. The mediator’s main objective is to assist the parties in reaching a settlement. Because long term disability law is specialized and can be quite technical, most LTD mediations are conducted by a relatively small list of well qualified mediators.
How do I prepare for mediation?
You do not need to prepare for the mediation, other than to consult with your lawyer beforehand to go over any questions or concerns you may have.
Your lawyer, however, will have done a great deal of work to get ready for the mediation. The best long term disability lawyers treat a mediation like a trial. In addition to securing all the updated medical, employment, tax, and other records, expert reports are often obtained to further strengthen the case. Your LTD lawyer will also prepare a “brief” that can be 100 pages or more, outlining the issues to be resolved, the strengths of your case, and detailed reference to the supporting evidence. The brief is provided to the mediator and the lawyer for the insurer approximately one week before the mediation. The lawyer for the defendant will also prepare a brief, but of course it will focus on the weaknesses of your case.
What happens at mediation?
Mediation usually takes place in a boardroom and one or more additional “breakout” rooms. This procedure has recently been adapted to accommodate COVID-19 concerns, but the general concept is the same.
All the parties (you, your lawyer, the insurance representative, the insurance company’s lawyer, and the mediator) start together in the main boardroom. After brief introductions, the mediator will explain the process and why it makes more sense to settle at mediation than going to court.
Your long term disability lawyer will then make a brief opening statement, which generally takes about 5-10 minutes. Remember, he or she has already provided detailed written material outlining the strengths of your case. Once your lawyer has finished, you have the opportunity to speak. You do not have to say anything. If you do speak, it can be as brief as “Thank for agreeing to this mediation”. If you are more comfortable speaking, you can take more time to explain how difficult it has been since the claim was denied. Then the lawyer for the insurer speaks. You will not agree with much of what the defence lawyer says, and it may be difficult to listen to. Just keep in mind the defence lawyer is there to try to settle the case too.
When opening statements are finished, you and your LTD lawyer will leave the main boardroom and go into a breakout room. The mediator will join. You and your lawyer will provide the mediator with an offer to settle. This first offer will be for much more money that anyone reasonably expects the insurance company to pay. The mediator will then take that offer to the other room where the insurance adjuster and defence lawyer are. They will provide the mediator with a counter offer, which they know is far too low to settle the case. The exchange of excessively high and low offers is part of the process.
There will likely be four to six rounds of offers and counteroffers. Ideally the parties get closer with each round. In addition to conveying offers, the mediator is pointing out the strengths and weaknesses in both rooms to try to get the parties off their initial positions and closer to settlement.
Eventually, the offers will either be close enough that it makes sense to settle, or are too far apart and the mediation fails. If the case settles, that is the end of the lawsuit. If the case does not settle, the litigation continues.
Will I be asked questions by the other lawyer?
The short answer is no. It is not an examination for discovery where the LTD insurer has the opportunity to ask you detailed questions about your employment, health, treatment, and why you have not returned to work.
In some cases, if it makes strategic sense to do so, your LTD lawyer may agree to allow the other lawyer or the mediator to ask a very limited number of questions. This is something you and your LTD lawyer should discuss in advance so there are no surprises.
Can the mediator decide how my case is settled?
No. The mediator has no decision making power. There are only two decision makers at a mediation: you and the insurance representative. The lawyers are there to provide advice and the mediator facilitates the process.
What are the advantages of settling my long term disability claim at mediation?
Long term disability mediations have a very high settlement rate, somewhere in the range of 80 to 90%. In addition, mediation has many advantages over the court process, which culminates in a trial. To name a few:
- Mediation is faster – it can take years to get to trial, whereas mediation often occurs relatively early in the litigation process.
- You are in control at mediation – at a trial the judge decides.
- There is room for compromise at a mediation – it usually makes sense to settle on a risk adjusted basis, rather than take your chances with an “all or none” outcome at trial.
- You can settle for both past and future benefits at mediation – at trial a judge can only order payment of past benefits owing and reinstatement, not a lump sum amount for future benefits.
- Creative solutions – sometimes settlements at mediation include terms that make sense to the parties, but cannot be ordered by a judge.
- Less adversarial – mediation allows both sides to work together to come up with an acceptable solution. Trial is an “all or none” adversarial process, where the defence lawyer is entitled to cross examine you on every aspect of your case, attack your credibility, introduce surveillance evidence, and sometimes other “dirty tricks”.
What are the disadvantages of mediation?
Settlement at mediation requires compromise, which means agreeing to less than you might be entitled to if you were to win in court. There is a common saying at mediation, along the lines of “If both parties leave unhappy, it is a fair result”. The idea is if the defendant pays a little more than they assessed the claim at, and the plaintiff accepts a little less than he or she was hoping for, it is probably a fair settlement.
What happens if my claim does not settle at mediation?
Sometimes claims resolve shortly after a failed mediation, for example where one side leaves their final offer to settle open for a period of time after the mediation. If not, the case will continue through the litigation process. The major steps in a lawsuit include examinations for discovery, motions, trial scheduling court, pre-trial, and ultimately trial. Getting to trial can take years, but the parties are free to settle at any point before trial, even if the case did not settle at mediation. In fact, the vast majority of cases that do not settle at mediation do eventually settle before going to court.
To conclude, mediation is an effective way to resolve most long term disability disputes. If the client and the lawyer are well prepared, settlement is likely.
If you have questions about your long term disability claim, please contact Michael Jordan for fast, free, LTD legal advice.
About The Author
Michael Jordan is a long term disability lawyer with more than 17 years experience litigating all types of insurance claims. He is a founding partner of the Bay Street firm Jordan Honickman Barristers. Michael represents clients across all of Ontario, with satellite offices in Ottawa and London.
Direct Cell: 416-460-6823