Navigating long term disability mediations can be complex, involving numerous elements and strategies. Here’s a comprehensive look at what to expect and how to prepare for these mediations.
What is a long term disability mediation?
Mediation is essentially a settlement meeting where parties in a dispute work to resolve their differences without going to court. This process, often called “alternative dispute resolution,” is particularly common in long-term disability cases, where more claims are settled at mediation than at trial.
During a long-term disability mediation, a neutral third-party mediator facilitates discussions between you and your insurance company, aiming to reach a mutually agreeable resolution. The mediator remains impartial and does not favour either side.
While mediations occur outside of court, they can be part of the court process, such as during a settlement conference. Courts generally require good faith settlement discussions, but it’s important to note that the mediator or settlement conference judge does not communicate with the judge handling your court case—ensuring that the process remains confidential.
Understanding the mediation brief
A mediation brief is a critical document summarizing each side’s position for the mediator, highlighting key issues, and stating desired outcomes. It should be concise and well-organized, as mediators often come into the process without prior knowledge of the case. A succinct, clear brief is generally more effective than a lengthy one filled with legal jargon.
Preparing for the long term disability mediation
Preparation involves several steps:
1. Drafting the brief: Typically, your lawyer will draft the mediation brief, which you will review and finalize before it is sent to both the mediator and the opposing side.
2. Pre-mediation meetings: These meetings with your lawyer are crucial for setting goals, understanding the mediation process, and establishing your bottom line—the minimum amount you are willing to accept.
3. Understanding Settlement Ranges: Your lawyer will explain the settlement ranges and the strategy behind starting with high demands and anticipating significant negotiation movement.
The Mediation Day
Mediation can be conducted in person or via Zoom, a trend that has become more common post-pandemic. The day typically unfolds in several stages:
1. Opening session
Everyone involved starts in a single room, where the mediator explains the process. In some regions, such as Ontario, opening statements by both lawyers are customary. However, in other provinces, opening statements are more of a rarity.
2. Separate rooms
After the opening statements, each party moves to separate rooms. The mediator then shuttles between the rooms, carrying offers and counteroffers back and forth. Some mediators are more involved than others. The mediator’s involvement varies quite a bit. In some cases, the mediator is heavily involved in helping both parties come to a resolution. In contrast, other mediators are simply messengers who go back and forth with offers without giving much input.
3. Negotiation dynamics
The mediation process can be lengthy, involving numerous rounds of offers and counteroffers. The mediator plays a crucial role in facilitating these negotiations, aiming to bring both sides closer to a mutually acceptable settlement.
Post-Mediation: Settlement Funds and Process
Once a settlement is reached, the process of handling the funds involves several steps:
Tax deductions
If the settlement is taxable, the insurance company will deduct and remit the tax amount to the Canada Revenue Agency before sending the remaining portion to your lawyer. This is a standard part of the settlement process and will be known in advance.
Trust account
The remaining funds will be sent to your lawyer’s trust account. This account is regulated by the Law Society, ensuring the money remains separate from the lawyer’s personal funds. The funds will stay in trust until cleared by the bank, which usually takes around five days. Once cleared, the lawyer will issue an invoice, pay themselves from the trust account, and distribute the remaining funds to you and any other parties involved.
Strategy and expectations: Long term disability mediation
1. Reasonable expectations:
It’s crucial to enter mediation with reasonable expectations. If you expect something unattainable, the mediation will likely be a waste of resources. Ensure that your expectations align with what is possible within the mediation process.
2. Effective communication:
Maintaining clear and open communication with your lawyer is vital. Misunderstandings can derail the process. Understand the reasons behind each offer and counteroffer and the overall strategy.
3. Decision-making:
If someone else (like a spouse or family member) is involved in the decision-making process, ensure they are present during mediation. This avoids post-mediation doubts and conflicts.
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Additional tips from an experienced disability and employment lawyer
Below are three helpful tips from David Brannen, the founder and managing lawyer of Resolute Legal. David has been involved in thousands of mediations and says the tips below have helped him and his clients have the most success at long-term disability mediations.
1. Avoid embarrassing opposing counsel: Don’t aim to embarrass or belittle the opposing lawyer, as it can lead to more problems and might impact the overall negotiation atmosphere.
2. Stay patient and persistent: Mediation can be stressful and lengthy. The goal is to push the opposing side to offer the maximum amount they are willing to pay. Sometimes, this means dragging out the process to create pressure.
3. Learning from experience: David Brannen shares that over the years, he’s learned the importance of not overreacting or making rash decisions during mediation. Always remain open to negotiation and avoid walking out prematurely.
Final thoughts on long term disability mediations
Mediations in long term disability cases are intricate, requiring thorough preparation, strategic thinking, and effective communication. By understanding the process and working closely with your lawyer, you can navigate the complexities of mediation and aim for the best possible settlement.
Want to learn more about navigating long term disability mediations? We covered this topic on our weekly webinar, the Disability Claims Answers Show. You can watch the webinar replay by signing up for our FREE Insider Basic Membership; the replay was posted on July 18, 2024, titled, What to Expect at a Long Term Disability Mediation. We also recommend checking out our article, What to Expect at a Long-Term Disability Lawsuit in Canada, to learn more about the steps involved in a lawsuit.
Ready to Take the Next Step?
Navigating long term disability mediations can be overwhelming, but you don’t have to do it alone. At Resolute Legal Disability Lawyers, our experienced team is here to guide you through every step of the process. Book a free consultation with us today to discuss your case and learn how we can help you achieve the best possible outcome.
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