{"id":2619,"date":"2019-10-27T16:21:17","date_gmt":"2019-10-27T20:21:17","guid":{"rendered":"http:\/\/360mediations.com\/en\/?p=2619"},"modified":"2023-08-09T13:32:50","modified_gmt":"2023-08-09T17:32:50","slug":"mediating-ltd-claims-the-nuances","status":"publish","type":"post","link":"https:\/\/360mediations.com\/en\/mediating-ltd-claims-the-nuances\/","title":{"rendered":"Mediating LTD Claims – The Nuances"},"content":{"rendered":"
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Mediated disputes generally share the same essential elements: an approach that is civil, courteous, reasoned, and full of compromises. Mediation of long term disability (\u201cLTD\u201d) claims are no exception, but they do give rise to some inherently unique issues that set them apart from their oft-related personal injury counterparts, and these differences warrant hiring a mediator astute to these nuanced variations.<\/span><\/p>\n<\/div><\/div><\/div>

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Click To View and Download PDF Version<\/strong><\/a><\/span><\/h6>\n<\/div><\/div><\/div><\/div><\/div><\/div>

LTD Claims Distinguished from Personal Injury Claims<\/span><\/strong><\/h1>\n

<\/span>It is a common misconception that LTD claims are just like personal injury claims. They are not. Indeed, from a trial perspective, the differences were recently fully canvassed in a case called Aziz v. Blue Cross Life Insurance Company of Canada<\/em>, 2019 ONSC 5020 (CanLII) (Master). The defendant, Blue Cross Life Insurance Company of Canada (\u201cBlue Cross<\/strong>\u201d) likely thought their motion to postpone their trial, so that it could be joined with the trial in the \u201crelated\u201d<\/em>\u00a0 personal injury claim (stemming from the very motor vehicle accident that caused the underlying disability in issue), was going to be granted as a matter of course: but it wasn\u2019t. Blue Cross lost their motion because the court found that the two cases where not significantly similar or intertwined to require a trial together. The following passages explain why the plaintiff, Aleisha Aziz (\u201cAziz<\/strong>\u201d), was allowed to have her LTD trial proceed, perhaps years ahead of her motor vehicle accident trial:<\/p>\n

<\/span>\u201cWhile some of the basic facts are shared, the issues in each action are discrete. In the LTD action, the only issues are whether the plaintiff meets the test for entitlement to disability benefits as defined in the policy and whether the plaintiff is entitled to punitive damages. In the LTD action, the jury only determines the plaintiff\u2019s total disability to the date of trial. The jury makes no determination about future entitlement to disability benefits. There are no issues of liability or causation regarding the motor vehicle accident. The question of whether Aziz\u2019s alleged injuries arise from the motor vehicle accident or some other cause is irrelevant. Because the \u201cdamages\u201d are based on a set monthly benefits, there is no need for any true assessment of quantum of damages, apart from punitive damages.<\/span><\/p>\n

<\/span>In the tort action there are issues of liability, contributory negligence, causation, threshold, general damages and special damages including income loss, care costs, medical and rehabilitation expenses, housekeeping expenses and the claim pursuant to the Family Law Act.\u201d<\/span><\/p>\n

<\/span>\u2026.<\/span><\/p>\n

<\/span>While some of Aziz\u2019s witnesses for the LTD and tort actions may overlap, there will be far fewer witnesses, both lay and expert, for the LTD action where there are less issues for determination.<\/span><\/p>\n

<\/span>\u2026.<\/span><\/p>\n

<\/span>While Aziz is a plaintiff in both actions, none of the other four remaining parties is a party in both actions.<\/span><\/p>\n

<\/span>\u2026<\/span><\/p>\n

<\/span>Blue Cross argues that there is a risk of inconsistent findings or judgment if the actions are not tried together. I disagree. It is possible that a jury may find that Aziz meets the test for entitlement to LTD benefits but is fully at fault for the accident or that her current condition does not relate to the accident. It is possible that a jury may find that Aziz has an economic loss related to the accident but does not meet the definition of \u201ctotal disability\u201d under the policy. These would not be inconsistent findings, but findings related to the specific matters at issue in each action.<\/span><\/p>\n

<\/span>Blue Cross argues that the parties will save costs if the actions are tried together. There is little evidence in support of this position. The evidence does not satisfy me that the overall length of the proceedings will be shortened or of any costs savings to the defendants if the actions are tried together. If the trials proceed separately, only Aziz\u2019s costs are potentially increased. It is only Aziz who will have to call certain witnesses twice. Having regard to all the circumstances including delay and prejudice, Aziz does not take issue with any potential increase in her costs.\u201d<\/span><\/p>\n

One of the court\u2019s criticisms was that there was \u201calso no evidence before<\/em> ..[the Court] …that Blue Cross or any other party ever suggested or sought a global mediation<\/em>.\u201d\u00a0 Obviously this factor was not determinative, but it is a good segue into considering the landscape that makes LTD mediations different from the average personal injury claim, just as the trial differences were appreciated by the motions judge in Blue Cross.<\/p>\n

The Elements that make LTD Claims Easier to Mediate<\/span><\/strong><\/h1>\n

<\/span>There are a number of features that make LTD claims easier to mediate, however, there are also some elements that make them harder to mediate: in the end, these present as an off-setting balance. Starting with the factors that make them easier to mediate, we have:

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    An exposure that generally has a finite outer limit.<\/strong><\/span><\/span> Unlike tort claims for personal injury, or defamation cases, where the outer limit can often be as high as the imagination will go, LTD claims simply do not have the \u201cdamages at large\u201d<\/em>\u00a0 component to them. That is a good start;<\/span><\/p>\n<\/li>\n

  • <\/i> \n

    An environment where the parties do not have to battle over liability or fault.<\/strong><\/span> In the normal instances, there is no debate over duty of care, standard of care, breach of the standard of care, and\/or contributory negligence. This said, this does not eliminate other arguments that can lower an insurer\u2019s exposure, such as an alleged failure to mitigate or misrepresentation;<\/span><\/p>\n<\/li>\n

  • <\/i> \n

    An exposure that is typically mathematically driven.<\/span><\/strong><\/span> Again, this avoids the vagaries of importing values for nebulous things such as damages for pain and suffering, or ethereal future loss of income claims based on purported career changes over time, etc. This does, however, ignore the fact that disability insurers can be required to pay \u201cpain and suffering\u201d<\/em>\u00a0 type damages for mental distress arising from a breach of contract if the insurer\u2019s conduct was egregious (seems to be currently hovering in the $15,000.00 to $100,000 range), however, this is rarely a commodity at mediation, other than perhaps a motivating factor to resolve the dispute before control over the matter is relinquished to the court \u201cwhere anything can happen.\u201d<\/em> \u00a0 This said, on the rare occasion I have seen an LTD carrier contribute a modest sum toward the bad faith exposure, but it would typically only occur if the file handling was very questionable, and motivated by malice.\u00a0 Although it goes against the grain for a disability carrier to make such a contribution as part of a settlement, it may be wise to do so in cases involving flagrant mismanagement of the claim \u2013 or in the words of the Supreme Court of Canada, in those instances where \u201c\u2026 the denial was the result of the overwhelmingly inadequate handling of the claim, or the introduction of improper considerations into the claims process.\u201d<\/em> (Fidler v. Sun Life Assurance Company of Canada, <\/em>\u00a0[2006] S.C.J. No. 30., at para 71).\u00a0 In my experience, the amount paid toward this exposure is typically quite modest during mediation, and it is apt to pale in comparison to what would likely be awarded at trial, and hence it should be palatable to the insurer, even if distasteful. Put another way, placing a few pennies in the punitive damages ledger after negotiating a beneficially high discount rate is possibly a better strategy than refusing to make any contribution towards punitive or bad faith damages, in those extreme cases: indeed, this would be simpatico with an apology, and often apologies gain more traction in the negotiations than the dollar;<\/span><\/p>\n<\/li>\n

  • <\/i> \n

    A situation where there is reasonable prospect of mediation long before expensive litigation ensues.<\/span><\/strong><\/span> Well before a long term disability dispute crystallizes into a full blown civil action there is typically a good developed factual matrix. By the time a lawsuit is started, the parties have likely exchanged a lot of information \u2013 medical documentation, interviews, assessments, policy documentation, notes, etc. Contrast this with a motor vehicle accident claim, where often the parties know nothing about the strength and\/or weakness of their case at the time the claim is issued \u2013 it takes another year or two for the factual matrix to start crystallizing. Because of the manner in which LTD claims unfold, mediation is actually a tool that should be considered early: even at the adjuster level (and well in advance of the commencement of a formal civil action).<\/div><\/p>\n<\/li>\n<\/ul>\n

    The Key Elements Shared with Personal Injury Cases – The “Meds-and-Creds”<\/span><\/strong><\/h1>\n

    <\/span>There are, of course, many similarities between mediating a disability claim and a personal injury claim. Central to both is the fact that the cases are driven by \u201dmeds- and-creds.\u201d<\/em>\u00a0 In this regard, there is a direct relationship between value of the case, and the strength of the medical evidence in tandem with the strength of the claimant\u2019s credibility. The better the claimant\u2019s credibility, and the stronger the medical opinion and medical presentation, the more the claimant\u2019s case is worth: and the converse is true as well. Indeed, good medical evidence can be defeated by poor credibility, and equally true is that good credibility can be defeated by poor medical evidence: however, when both medical evidence and credibility is strong and largely unflappable, a resolution is apt to require a contribution in the upper ranges of the exposure (and perhaps rightfully so). Conversely, a claimant with vast array of credibility challenges, coupled with a medical presentation that doesn\u2019t make a whole deal of sense, should be compelled to accept a contribution in the lower ranges of the exposure, absent any other extenuating circumstances.<\/p>\n

    What sets LTD Mediations Apart Thereafter?<\/span><\/strong><\/h1>\n

    <\/span>Long term disability claims have elements that are distinct from their personal injury counterparts, and these include the following features:

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      The potential for a tripartite relationships between claimant, employer, and the insurance company.<\/strong><\/span><\/span>\u00a0 There are times when an employer and the insurance company are at the mediation table, and in those instances, it is important to understand their roles. For instance, is the insurer providing the \u201ccoverage,\u201d or is the employer self-insured, with the insurance company providing administrative services only? In those later cases, does the claimant need to keep the insurer in the action, or can they be released? Not an easy answer, and the case law is not well settled. Indeed, an entire paper could be devoted to this topic alone. Some decisions consider the plan administrator immune from liability to the claimant because there is no privity of contract between them. Other decisions depart from this, and maintain that an administrator can indeed be held accountable to the claimant in a bad faith tort, if the administration of the benefits was done negligently or recklessly. Yet other decisions have held that the administrator is simply the employer\u2019s agent, such that the employer remains responsible for the negligence of the administrator, although it remains open for debate whether this is sufficient to completely insulate that administrator from judgment against them as well. In any event, these are issues that are generally quite unique to LTD claims;<\/span><\/p>\n<\/li>\n

    • <\/i> \n

      The potential for an LTD claim to resolve with an “on claim” settlement.<\/span><\/strong><\/span> Unique to LTD claims is the fact that the parties can actually come to a settlement whereby the claimant stays on claim \u2013 perhaps with an agreed upon monthly amount, or some agreement on the period the benefits will be paid into the future, etc. There is no such equivalent discussion at mediation in the context of a personal injury claim. This said, however, the vast majority of LTD mediated settlements are of the lump-sum variety, and understandably so, because most parties want to buy piece of mind. Indeed, a lump sum payout in a LTD claim is only available through a negotiated settlement: a court cannot render judgment for future entitlement (although in one very unreasoned decision (Brito v. Canac Kitchens<\/em>\u00a0 [2011] ONSC 1011, upheld on appeal 2012 ONCA 61) the court did make an award for future benefits in deference to the more established body of case law that says a judge cannot award a lump sum payment of future benefits);<\/span><\/p>\n<\/li>\n

    • <\/i> \n

      The existence of the nebulous discount rate.<\/span><\/strong><\/span> For the vast majority of LTD disputes, the parties will have to come to terms on what discount rate to apply for future payments. Ironically, because the courts do not make awards for future entitlement, there is no jurisprudential guidance on the correct rate to apply. For the time being, the applicable discount rate simply has to be negotiated, and the mediation can fail on this singular issue alone. It is noteworthy that even a half-a-percentage point can create large swings, especially for a young claimant. So what are the guide posts? Claimants prefer lower discount rates, and migrate to rule 53.09 which at the time of this article, was set at 0.1% for the first 15 years, and 2.5% thereafter: essentially leading some claimant\u2019s to demand a blended rate hovering around 1%. Insurers lobby for discount rates in the 4% – 5% range, arguing that this is what investments are capable of returning in today\u2019s environment. Typically, both extremes enflame the room, and things work out better if the parties quickly find their way to an agreeable compromised discount rate somewhere in the middle;<\/span><\/p>\n<\/li>\n

    • <\/i> \n

      The requirement of proof that the claimant was disabled as of the end of the qualifying period.<\/span><\/strong><\/span> This is often not a hotly debated issue, but in cases involving claim tardiness (disability claims initiated \u201cafter the fact,\u201d) there can be legitimate arguments that the claimant cannot establish the presence of a disability by the end of the qualifying period;<\/span><\/p>\n<\/li>\n

    • <\/i> \n

      The offsets.<\/span><\/strong><\/span> The offsets are largely governed by the contractual wording of the policy. Most policies today have tailored their wordings to recapture CPP Disability payments, and all should seem straight forward, but complications do arise by such things as whether CPP Disability is actually being received, or whether this benefit is under appeal, or whether an application was even submitted by the claimant\/plaintiff. In the case of an appeal, how is that risk allocated? What about severance payments received post-disability? Again, typically contractually driven. What about receipt of a structured settlement payout in the tort case? Generally, if there is compelling evidence that the payouts are for damages (and not income), then there ought to be no deduction (Stitzinger v. Imperial Life,<\/em>\u00a0 SCC), but conversely, if it is characterized as income, it is possibly deductible (Carter v. New Brunswick).<\/em>\u00a0 What about wrongful dismissal damages following the termination of the disabled employee? The decision in Nichol v. Wray<\/em>\u00a0 concluded no, but left the door open to possibly yes if the policy wording had been different: very contract driven;<\/span><\/p>\n<\/li>\n

    • <\/i> \n

      Issues of Taxation.<\/span><\/strong><\/span> Where the claimant pays the premiums, the benefit is often considered non-taxable. In other cases, where the premium is paid for by the employer, those benefits are typically taxable. That leads to a whole quandary of issues in a lump-sum settlement, as the parties then need to determine how the lump sum amount will be reasonably attributed between past and future losses, and how much is applicable to costs and disbursements, etc. This becomes incredibly important because only the portion intended to replace past disability benefits is subject to tax, and not any sums paid towards legal costs, disbursements, future potential claims, damages for bad faith or aggravated damages (as per R. v. Tsiaprailis,<\/em>\u00a0 [2005] S.C.J. No. 918). Also, the parties have to decide how the \u201ctax\u201d is going to be dealt with: is it going to be withheld, or will the full amount be paid such that the claimant receives a T4A in the spring of the following year and the claimant accounts for the tax during income tax completion time. Finally, the parties can also discuss, and negotiate, whether the insurer will issue a Form T1198 so that the settlement for past disability benefits is attributed over a number of years, and the claimant can spread out the tax burden over a number of years. Indeed, on the claimant side, the legal costs are a proper deduction that may be used to off-set the tax liability associated with taxable benefits;<\/span><\/p>\n<\/li>\n

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      The terms of the settlement agreement and release.<\/span><\/strong><\/span> Although settlement agreements and releases are not unique to LTD claims, they tend to be, for some reason, more detailed in LTD settlements, and perhaps rightly so, as the parties are best served to address all the little nagging issues that tend to surround LTD claims, such as how do the parties deal with any future claim to CPP Disability benefits if they are subsequently awarded? Are other group benefits being released or just the LTD and life premium waiver? ls the release only for the subject policy or for all other LTD policies issued by the insurer? Does the release contain a “claw back” if the plaintiff breaches the confidentiality covenant? Does the release include a certificate from plaintiff counsel and has it been carefully explained to their client? Will the insurer pay the full cost of the mediator? Parties are ill advised to leave the mediation without the terms of the release being fully negotiated and agreed upon, because anything short of that can lead to disputes later on, and if these disputes are sufficiently serious, there may be no enforceable settlement at all.<\/div><\/p>\n<\/li>\n<\/ul>\n

      What can be Done to Improve the Prospect of Resolution at Mediation?<\/strong><\/span><\/h1>\n

      <\/span>Mediation survives as an occupation because it is near impossible to have two strangers agree on anything, at first instance. Is the medical evidence strong? Is the claimant credible? Again, these questions could be asked of many, and many an answer will come back. That is the backbone of mediation \u2013 a time and place where the parties get to explore this reality: not everyone is going to see things their way. This is why certain things are key to improving the party\u2019s success at mediation:

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        Prepare a well drafted mediation brief.<\/strong><\/span><\/span> No one will be convinced that there is an alternative way to see things if the opposing party cannot succinctly and persuasively put forth a symbiotic thesis of their case in their brief. Occasionally we receive mediation briefs that look like they were drafted by someone unfamiliar with the file: often a closer inspection of the documents attached to the brief can reveal many supportive facts and elements that were not raised in the written component of the brief. At worst, the mediation brief is simply a regurgitation of reams of paragraphs taken from various reports, with no effort to tightly connect the facts and excerpts into a cohesive and simple-to-understand thesis or theory. If the mediator and\/or opposing party has to \u201cdig\u201d for the theory of your case, you have simply made it easy for your opponent to become entrenched that their interpretation of the meds-and-creds is the only one. Also to be avoided are briefs laden with sarcasm and vitriol. Lengthy diatribes on punitive damages should not be a part of any brief, unless the conduct of the insurer unequivocally passes the Rubicon of malice. Conversely, lengthy diatribes about misrepresentation voiding the policy should be avoided unless the conduct verges on fraud that can be proven beyond a reasonable doubt (and not mere speculation). In the end, a well reasoned narrative supported by tight connections to the evidence is the best (and some would argue the \u201conly\u201d) way to persuade: leave the angst behind;<\/span><\/p>\n<\/li>\n

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        Deliver timely mediation briefs.<\/strong><\/span><\/span> All the effort behind preparing a good mediation brief is essentially wasted if the brief is served at the 11th hour. The benefit of the work invested in crafting a first-class mediation brief can only be realized if the brief itself is delivered several weeks before the mediation. This is not for the mediator\u2019s benefit \u2013 indeed, it makes little difference to the mediator. This piece of sage advice is for the benefit of the parties. Although timeliness relates to both parties, it is more the claimant\u2019s burden than the insurer\u2019s burden: however, reciprocity should be exercised. Timeliness remains more the claimant\u2019s burden because unlike a claimant who can typically adjust their position \u201con the fly,\u201d this is rarely, if ever, the case with an insurance adjuster who may require weeks to alter the settlement authority or reserves on the file: especially if the authority has to come through channels of command. Delivering a mediation brief a day-or-two before the mediation is going to essentially ensure that little-to-no effort will be made for upward adjustment, if such was warranted. From a claimant\u2019s perspective, this will mean their claim will not settle, or if it settles, it will be for an amount less than what might have been gained with better planning. Given that the time to prepare a mediation brief is the same regardless of whether it is done a day before, or a month prior to, the mediation, there is really no excuse for tardiness. Indeed, in those instances where an expert failed to tender their \u201creport\u201d a month or two before the mediation, it is still a better practice to deliver the mediation brief early, without the expert\u2019s report, and then send an addendum when the report is available \u2013 indeed, the first brief can contain inferences that a report is forthcoming or anticipated. In this manner, and in the interim, the LTD claims adjuster will have a better feel for whether there is a need to seek out more authority, and perhaps have people in stand-by mode to react more quickly when the report is made available (provided it too does not come at the 11th hour);<\/span><\/p>\n<\/li>\n

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        Participate in-person.<\/strong><\/span><\/span> Although video conferencing and teleconferencing mediations are possible, there is no substitute for an in-person mediation. The claimant, perhaps for the first time, gets to hear an articulated explanation for why the insurer views their case differently. The insurer, for the first time, has the opportunity to get a tactile feel for the claimant: sure on paper the claimant may come across as undeserving, but that may not play out during a personal one-on-one interaction. Exchanges with family members (who will likely be witnesses) are also helpful for an insurer, and one that would not be possible absent an in-person mediation. Insurance representatives should be pleased to find out during a mediation that the spouse is really nice and credible (unlike the claimant): after-all, the spouse can uplift a case that otherwise looked quite damaged, and it is better to find out, and react to this contingency, at mediation, rather than to remain oblivious to this contingency heading into a costly trial;<\/span><\/p>\n<\/li>\n

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        Manage client expectations before the mediation.<\/strong><\/span><\/span> Often the most time consuming part of the mediation process stems from having to convince parties to readjust their settlement objectives in real time, as the mediation unfolds. It can happen with either party: an adjuster who comes to the table with an ardent view that they will steamroll over the claimant with a next-to-zero offer, only to find out later that they simply and needlessly bought themselves an expensive trial because that assessment was way-off-the-mark, or a claimant who comes to the table with expectations that they will leave with enough money to buy a house, and are gravely disappointed to discover that their case is likely not even worth a down-payment for a house. At mediation, condensed into a few hours, it is difficult, and in some cases impossible, to alter these expectations. Clients are never well served by lawyers who advise in absolutes. All cases are inherently risky and unpredictable. Comments like \u201cmy client can\u2019t lose this\u201d is mind numbing. By way of illustration, how much liability should be fixed against a defendant who pleads guilty to making an improper left hand turn in front of a plaintiff\u2019s vehicle, leading to a car crash? Most would likely say 100% against the defendant. Some might say the \u201cplaintiff can\u2019t lose this case.\u201d Well, in one case a jury concluded that the plaintiff was 100% at-fault, on the basis that despite the defendant making an improper turn, the turn was done early enough that the plaintiff could have reacted to it and avoided the collision. Surely this was a perverse finding and upset on appeal: the \u201cplaintiff couldn\u2019t possibly lose this on appeal!\u201d Well, the trial decision was upheld on appeal, and leave to appeal to the Supreme Court of Canada was denied! (Olszynko v. Larocque, [1998] O.J. No. 5281 (G.D.); [1999] O.J. No. 4563 (C.A.); [1999] S.C.C.A. No. 607). This is just one cogent illustration for why it is foolhardy to take positions like \u201cmy client can\u2019t lose this.\u201d This does not mean that an otherwise poor case for the claimant warrants a high settlement, or a great case for the plaintiff deserves a low settlement: it simply means that the parties need to account, in some reasoned manner, that \u201cmy client may lose this,\u201d and do their best to quantify what those risk factors may be. If expectations are well managed prior to the mediation, then the mediation process becomes more streamlined, and more importantly there is a lot less client angst which is, needless to say, an absolutely bonus for the lawyers;<\/span><\/p>\n<\/li>\n

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        Prepare a short, persuasive, and compelling opening submission.<\/strong><\/span><\/span> Openings should stay true to the facts, weaved into a compelling thesis for why your position ought to be favoured. Openings should be devoid of any personal mud-slinging. This is a time when a party can perhaps tip the scales a little: a 10% swing in a $350,000.00 case is $35,000.00, which is not bad for a well rehearsed 10 minute opening statement. Indeed, this is time well spent, whether it yields a savings of $35,000.00 for the insurer, or an additional $35,000.00 in recovery for the claimant;<\/span><\/p>\n<\/li>\n

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        Unless there are significant minefields, encourage the parties to speak during the opening session.<\/strong><\/span><\/span> Often this is a cathartic experience for the claimant \u2013 a chance to be heard \u2013 a chance to feel they are not a number. It is a chance for the adjuster to get a different perspective about the claimant (that doesn\u2019t come out on paper). In the case of the adjuster, it is a time for the claimant to see that there is a human on the other side, and ideally one that shows a little empathy. Even if there are minefields for the claimant\u2019s case, these \u201crisks\u201d can be somewhat ameliorated through the use of a prepared written statement \u2013 not as effective as a \u201cfrom the heart\u201d statement, but one that nonetheless is better than no statement at all;<\/span><\/p>\n<\/li>\n

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        Approach the negotiations sensibly.<\/strong><\/span><\/span> It is hard to tell why things have strayed to the point where insurers open with close-to-zero opening offers, and plaintiffs open with offers beyond policy limits. There is little to gain through outer limit offers, both from the defence and claimant\u2019s perspectives. It creates angst, and it wastes time. But it seems to be the flavour of the day, and it shouldn\u2019t be. Regardless, and fortunately, things typically, and eventually, get on track, when reason eventually prevails;<\/span><\/p>\n<\/li>\n

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        Don\u2019t approach the mediation as a testing ground to see what value the other party places on the case.<\/strong><\/span><\/span> This is not the purpose of mediation, and the strategy will typically backfire, because to get to an opponent\u2019s true number, you have to negotiate in good faith. Indeed, an \u201coutrageous\u201d offer typically yields an equally \u201coutrageous\u201d counter-offer. Why? Because the party on the receiving end doesn\u2019t want to tip their hand on what they may be willing to pay. Indeed, imagine the difficulty a mediator will have with the party on a receiving end of an outrageous offer when the mediator convinces the party to respond with a realistic offer, and the mediation comes to an end shortly thereafter\u2013 in this scenario, the responding party feels duped by the mediator \u2013 they put their cards on the table as requested by the mediator, but their opponent did not. The responding party leaves the mediation in distress. By way of example, in a situation where both parties view the case to have a settlement value of $300,000.00, but have been posturing for years that it is a zero case on the defence side, and a multi-million dollar case on the claimant\u2019s side. Claimant opens with an offer for $1.2M, plus costs and disbursements. The mediator convinces the insurer \u201cto do the right thing\u201d \u2013 ignore the claimant\u2019s hyperbole, and tender what you think is fair, in this case, $225,000.00 to give you some wiggle room to $300,000.00. The claimant storms out, perhaps immediately or a round-or-two later, absolutely pleased that the insurer tipped their hand to a willingness to contribute something close to their target, but the insurer leaves empty handed, and potentially angry at the mediator. The anger isn\u2019t justified, because the insurer lost nothing: but it is perception over substance. Tomorrow the case will likely settle for something close to everyone\u2019s target, but that mediation experience will leave a bitter taste for the insurer, even though the mediation was the catalyst for getting the deal done a short while later;<\/span><\/p>\n<\/li>\n

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        Let the mediator help.<\/strong><\/span><\/span> Take advantage of the knowledge and experience of the mediator.\u00a0 The mediator has no affinity to one side or the other, and will assist the parties through impartial lenses.<\/div><\/p>\n<\/li>\n<\/ul>\n

        Conclusion<\/span><\/strong><\/h1>\n

        <\/span>Many pieces need to come together to create a solid foundation for a successful mediation. Briefly, before mediation both parties should have a well thought out theory of their case that is well supported through discrete factual references and relevant case law, both parties should exchange timely briefs, and both parties should attend with well-managed expectations. Additionally, it is generally helpful to have pre-mediation discussions with the other side to see if any agreement can be reached on some of the discrete issues that often hamper the progress of LTD settlement discussions, such as what discount rate to use, or how offsets will be accounted for, or an agreement on the quantification of the offset even if there is no agreement on whether it can be applied, or how issues of taxation will be dealt with, etc. Once the parties have pushed through the foregoing, the mediation provides a focused platform to hone and test the parties\u2019 theories in a way that bridges their expectations and augments their resolve to get their case settled. This said, in those situations where the parties are unable to create a good settlement foundation prior to mediation, a seasoned mediator can quickly assess where most of the \u201cwork\u201d needs to be done to overcome the shortfalls (or in some cases the \u201cpitfalls\u201d), so that the limited time at mediation is used wisely: making your choice of mediator an important one.<\/p>\n

        Authored by: David M. Jos\u00e9 (B.A, LL.B)<\/strong><\/span><\/p>\n

        \"\" \u00a0 * The information in this article or paper is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from <\/em>360Mediations, or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter.<\/em><\/span> \u00a0<\/p>\n<\/div><\/div><\/div><\/div><\/div>","protected":false},"excerpt":{"rendered":"

        Mediated disputes generally share the same essential elements: an approach that is civil, courteous, reasoned, and full of compromises. Mediation of long term disability (\u201cLTD\u201d) claims are no exception, but they do give rise to some inherently unique issues that set them apart from their oft-related personal injury counterparts, and these differences warrant hiring a mediator astute to these nuanced variations.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[38,8],"tags":[37,29,36,35,11,41],"class_list":["post-2619","post","type-post","status-publish","format-standard","hentry","category-ltd-long-term-disability","category-mediation","tag-aziz-v-blue-cross","tag-david-m-jose","tag-fidler-v-sun-life","tag-ltd-claims","tag-mediation","tag-ontario-mediation","entry"],"yoast_head":"\nMediating LTD Claims - The Nuances - 360Mediations<\/title>\n<meta name=\"description\" content=\"Mediation of long term disability (\u201cLTD\u201d) claims give rise to some inherently unique issues that set them apart from their oft-related personal injury counterparts, and these differences warrant hiring a mediator astute to these nuanced variations.\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/360mediations.com\/en\/mediating-ltd-claims-the-nuances\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mediating LTD Claims - The Nuances - 360Mediations\" \/>\n<meta property=\"og:description\" content=\"Mediation of long term disability (\u201cLTD\u201d) claims give rise to some inherently unique issues that set them apart from their oft-related personal injury counterparts, and these differences warrant hiring a mediator astute to these nuanced variations.\" \/>\n<meta property=\"og:url\" content=\"https:\/\/360mediations.com\/en\/mediating-ltd-claims-the-nuances\/\" \/>\n<meta property=\"og:site_name\" content=\"360Mediations\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/360Mediations-120028596572318\" \/>\n<meta property=\"article:author\" content=\"https:\/\/www.facebook.com\/360Mediations-120028596572318\" \/>\n<meta property=\"article:published_time\" content=\"2019-10-27T20:21:17+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2023-08-09T17:32:50+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/360mediations.com\/en\/wp-content\/uploads\/2019\/10\/360-Cloud.png\" \/>\n<meta name=\"author\" content=\"David M. 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