Thankfully the awareness and acceptance of mental illness has increased in our society. More people are accepting the reality that our workforce has a fair number of people who are dealing with a diagnosis. Hopefully a majority of them are getting the care and support they need to be healthy, productive and, yes, happy individuals. Some of these people get involved in a work injury claim and are introduced to the potentially complex world of workers compensation law.
Most workers compensation cases go smoothly enough. The person reports the injury, gets the needed care, has the claim handled until the injury resolves, and then returns to their original job. Some cases involve a bit more. When mental illness is added to the event of a work injury, whether the diagnosis preexisted, was aggravated, or caused by the injury, the case could have another layer of complexity. (And be mindful that it might not be the claimant with a condition!)
The complexities of mental illness can touch every aspect of a case from the first report of injury being made and filed to the very end of the claim. It can touch every person involved in the case including not only the claimant and their family, but also the employer, claims adjuster, treating doctor(s), rehabilitation consultant, and attorneys. At some point it can also affect those involved in the mediation of a case. It is at that point when the mental condition(s) can affect how the mediation session is conducted.
As I mediate cases involving people with a diagnosis, regardless of who in the case has one, I always remember that it is not my place to judge people and their role in the mediation process. The job of the mediator is to work with the parties and their attorneys to accomplish the goal of their mediation. It is their mediation, not mine. It is their goals that need to be my focus.
I am not suggesting that the existence of a person’s condition, and how it affects the people involved, should be ignored. To the contrary, it is the mediator's awareness and acceptance of this reality that becomes extremely important in helping the process along. People can usually sense if they are being accepted or judged for who they are, so the approach a mediator takes in these cases can either build or destroy trust. Trust is the foundation upon which a successful mediation is built and acceptance is the ground under that foundation.
How do I do it? I handle the mediation the same way I do in every case. I trust the people involved in the case to work in good faith toward the goal of their mediation, which is usually settlement. The journey that is mediation is best traveled with those you choose to trust and those who then choose to trust you.
Elliot Herland
June 27, 2019