How to Get Value from Your ERISA Mediation

ERISA benefits litigation is by and large a streamlined form of litigation that involves an expeditious trial usually based on the administrative record, with no witnesses. Lawyers who do this kind of work are sensitive to the factual nuances of ERISA benefits cases and the risks posed by taking chances before the district or magistrate judge.

Most of these cases are either settled by the lawyers themselves or in mediation. The lawyers and parties are usually very well prepared, but it is usually the plaintiff’s first and probably only experience with the process. Therefore, the process must address the discomfort that the individual plaintiffs experience, even if the setting is much more informal than the courtroom.

There are a number of ways to save time, money and aggravation at an ERISA mediation.

First, as usual, be prepared. In ERISA cases, one of the best ways to save time is to attempt to come to an agreement with opposing counsel as to the value of the benefits in issue. At a minimum, prepare your own analysis of the benefit value, as well as any additional amounts you may claim are due.

Second, trust your mediator to develop an environment that is likely to lead to a resolution of the case. I find that experienced counsel want to control the way the mediation proceeds, and as a result inadvertently close doors to a meeting of the minds. I know; I’ve been there. Nobody could tell me how best to present or convey my side of the case so I could get the best deal for my client. However, there are pivotal factors that can be overlooked, such as the emotional state of the plaintiff, the value of having the defendant’s representative actually assess the plaintiff (not for evidentiary purposes, but to hear the story), and having plaintiff’s counsel hear the story from the defendant’s perspective, much as it would play out as counsel would argue based on the administrative record at the court trial. The subtleties here are invaluable.

Third, don’t assume the mediator is manipulating you. When I conduct a mediation, I try very hard to learn the compelling parts of each side’s case, as well as the weaknesses. We all know that there is no perfect case, and especially where ERISA benefits are involved. There is abundant truth on both sides, and sharing it with the mediator, not to mention the other side (as appropriate) can lead to creative and often speedy solutions.

Fourth, do not dismiss the idea of joint sessions. The trend in ERISA cases has been to move away from joint sessions, but I find them to be incredibly productive. While the mediation is yours to fashion in order to reach a resolution of the dispute, do not ignore the possibility that working together with the other side, including the parties, can more quickly lead to a settlement. I cannot tell you how many times parties and counsel have been surprised at the effectiveness of joint sessions. In joint sessions, you control how the information is conveyed to your opponent. Joint sessions provide a wonderful opportunity for you and your client to impress crucial points on the other side. While private caucusing is an integral part of the process, the communication in joint sessions is just as important.

ERISA mediations can be efficient and minimize the stress of the experience for the parties, particularly the plaintiffs. With preparation and flexibility about the procedure, all participants will most likely reach a mutually satisfactory settlement.