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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.

Benefits of Mediation

Mediation is a confidential and binding alternative to a hearing. It is much more informal and efficient, as well as less expensive. It is more conversational and less adversarial. Each side has a chance to provide input and help forge a mutually workable resolution.

  • Informality: Mediation is much more relaxed than litigation. As a result, it usually is less stressful than a courtroom with its sometimes-stifling rules and procedures.
  • Confidentiality: Nothing discussed during the process can be used later. The vast majority of cases settle at mediation. However, if a case doesn’t settle, none of the participants can be called to testify in court about anything they said or heard, nor about any amounts of money that were discussed. The mediator is required by law to keep all conversations confidential.
  • Efficiency: Court proceedings can drag on for many years. Mediations typically are completed in one day, unless the case is extremely complicated, the parties can’t reach a settlement or additional information needs to be gathered before an agreement can be reached. If that happens, the parties can reconvene later (sometimes by conference call) to resume negotiations. Mediation also can be a much more effective way to resolve cases involving multiple areas of the law. For example, if an employee gets into an accident while driving a company car, mediation can resolve all workers’ compensation and liability claims simultaneously.
  • Less expensive: If a mediation is scheduled early in the claims process, the costs can be drastically reduced. Parties often see substantial savings in the costs of discovery including depositions, costs of medical records, costs of IMEs, etc., as well as employee and attorney time. If settled, there can be savings in future medical costs and weekly benefits for the employer. Conversely, the claimant (and their attorneys) receive the award faster and can resume their life’s activities quicker.
  • Finality: Unlike commission hearings, mediation agreements can’t be appealed. The parties sign an agreement before they leave their session so that settlement terms are clear to everyone, and it typically takes just a week or two to deliver the paperwork and check to the claimant. There is a huge psychological benefit to being able to move on with one’s life and business.

Tips: Prepare and Participate

  • Get involved: Employers and claimants often feel alienated while a workers’ compensation claim is pending. Employers turn the “matter” over to their insurance company and claimants surrender to the knowledge of their attorney or hope for help from the Commission. In mediation, all who have been affected by the injury are urged to participate. Mediation is more effective when all parties desire to resolve the issues in a timely manner. Your input along the way is welcome and invaluable. Come to the session with an open mind and take part in the process. It is a great way for you to understand the factors that come into play and help to shape the outcome.
  • Come prepared: Bring the employee file, any communications you’ve had with the insurance adjuster, medical notes and records, and anything else that may come into question. Often, the employee/claimant will ask questions that relate to broader issues such as benefits (e.g. impact on their health insurance, long-term/short-term disability coverage, vacation days, 401(k), etc.), so bring that information, too.
  • Assessing potential exposure: Just as claimants’ attorneys sometimes use mediation to help clients understand the true value of their cases, defense attorneys can use it to gauge potential business exposure and how the case might play out before a commissioner. This can be especially valuable with tough clients who can’t see a large award as a real possibility.

Cindy Dooley is a shareholder at Turner Padget who has been helping to resolve workers’ compensation cases for more than 30 years. After starting out as an adjuster, Cindy became a lawyer and defended employers before the South Carolina Workers’ Compensation Commission and higher courts. She became a certified circuit court mediator in 2008. She may be reached at (803) 227-4209 or by email at cdooley@turnerpadget.com.

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