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Mediation: A Mandatory (and Often Better) Way to Resolve Certain Workers’ Comp. Claims

South Carolina now mandates the use of mediation as a way to help resolve certain workers’ compensation claims. These are defined in 67-1802 of the state Workers’ Compensation Commission Regulations, but generally, they are cases that would be litigation-intensive and highly contested – e.g., occupational disease, contested death and mental injury claims.

The goal of promoting timely and cost-effective resolutions largely is being achieved. Practically speaking, there are several aspects of mediation that make it a good alternative to a hearing before a commissioner of the Workers’ Compensation Commission.

The Traditional Hearing Route

Historically, most workers’ compensation cases have been decided by one of the state’s seven commissioners. While the commissioners are experienced and more than able to render fair decisions, time factors often limit the ability of attorneys and claimants to fully explain their respective positions. In 2017, the Commission had 10,458 cases docketed for a hearing. A normal case is scheduled to last from one to two hours. Once docketed, on average the case may take at least three months to actually be heard. After the hearing, commissioners often must review reams of evidence before a ruling is made. Although the ruling is binding on the parties, there is always the potential for appeal, thus extending the process and increasing costs. The hearing also submits all issues to the interpretation of one person. By contrast, mediations often last for an entire day giving the parties time to fully explore and present their respective positions.

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Mediation is key to efficient, cost-effective e-discovery

Nearly everything we do leaves a trail of data, and the abundance of electronic evidence has transformed the way legal disputes are handled from beginning through resolution.

Think of all the different ways we communicate with others – either directly, with text messages or emails, or passively, where social media posts may be viewed by friends or connections. Before electronic evidence became the norm, printed documents relevant to a case were placed in a file, boxed and stored along with countless others to be turned over to opposing counsel, who had to sort through it all by hand. Now, the realm of discoverable digital data has grown exponentially, making the ability to search efficiently even more important. The Radicati Group, a technology market research firm, estimated that 269 billion emails were sent per day in 2017. That’s a lot of data.

Each piece of data helps tell a story, and that data can be used as evidence in a lawsuit. Preservation, retrieval, review, and production of electronic data can dramatically affect the expense of litigation, and controlling those costs through careful management of the discovery process is the key benefit of employing a mediator to assist with discovery.

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Court Comes Down Hard On Bank That Didn’t Satisfy Open-Ended Mortgage in 90 Days

The South Carolina Supreme Court recently sent a clear message to banks: all mortgages – including those with a home equity line of credit (HELOC) – must be satisfied within 90 days of receiving a payoff. Banks that don't have a procedure for timely execution of payoffs where there is a line of credit should implement one immediately or risk certain liability.

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Arbitration:  Should I Stay (in Court) or Should I Go (to Arbitration)?

In South Carolina, 33 out of 46 counties are “mandatory mediation” counties, and circuit court litigants in these counties are required to participate in mediation of their lawsuits prior to trial (with certain limited exceptions).

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