Much of the time, litigation may seem inevitable.  However, there is an alternative to litigation in certain situations, if both parties agree.  This alternative is mediation. There are two types of mediation that can happen during the course of your workers’ compensation case: Issue Mediation and Full and Final Mediation.

What Is Issue Mediation?

Issue Mediation is the type of mediation you use when you, as the claimant, have made a claim that the insurance company disagrees with, so there is a dispute, but you are not quite ready to give up your entire claim against the insurance company.   Some types of disputes are better resolved by Issue Mediation than others.

Issue Mediation works best in cases where the compensability of the underlying accident has been accepted.   The reason for this is because determination of the compensability of the accident is all or nothing. There is no room to negotiate on the issues.  The accident is either compensable and the insurance carrier has to pay for the medical treatment or it is not compensable and the insurance carrier does not pay for treatment.  That leaves nothing really to discuss in the mediation because there is no middle ground to reach.

Types of Issues That Qualify for Issue Mediation

The types of issues that typically lend themselves well to Issue Mediation are things like denied claims for mileage, calculation of average weekly wage, determination of periods of disability, and the calculation of the wages you are owed.   These are the types of issues that have “wiggle room” or middle ground for negotiation.

For example, you have claimed that you traveled 40 miles to your doctor’s appointment but the insurance carrier says that MapQuest says the drive should only be 30 miles round trip.  In Issue Mediation, you have an opportunity to explain that there was road construction that required a 10 mile round trip detour so there are extenuating circumstances. In this case, maybe you can compromise on the additional five miles.

Another example would be if you missed a medical appointment because one of your children was sick but rescheduled it as soon as you could.  Technically, the insurance company can argue that you “refused medical treatment” by not attending the medical appointment but you went later, so you “cured” any potential refusal of medical treatment.  Rather than wait three to six months to get to a hearing, you can possibly compromise and agree to give up your claim for ½ of the weeks you were without income and the insurance company can agree to give up their defense to the other half of the weeks, thus, reaching a middle ground.        

Do I Need an Attorney?

An attorney is not required to represent you in Issue Mediation, but that does not mean you do not need one.  It does not mean that you would not benefit from having one. It only means that the Commission does not require that you be represented by an attorney to participate in Issue Mediation.  It is always best to have at least consulted with an attorney before appearing at Issue Mediation. If you have questions about whether you need an attorney, you are welcome to call our office and ask.

Issue Mediation & Orientation Session

While participation in Issue Mediation itself is voluntary, if the Deputy Commissioner that the case is set to be heard by feels that the issues lend themselves to Issue Mediation, the Deputy Commissioner can require that the parties attend what is called and “Orientation Session.”  In an Orientation Session, the mediator explains to both parties what Issue Mediation is and what the benefits of Issue Mediation are. Often, since the parties are on the phone with the mediator anyway, the orientation becomes actual Issue Mediation. However, again, Issue Mediation is voluntary and you are not required to participate in the mediation itself, only the orientation.

The Issue Mediation Process & Where It Takes Place

Issue Mediations usually take place over the phone. That means that you call in to a conference line from the comfort of your own home.  (If you are represented by counsel, then your attorney can tell you whether they prefer you to come to his or her office). The adjuster, or the attorney for the insurance company, will then do the same thing.

The mediator will then go over his or her role in the mediation, that the mediation is confidential, what the exceptions to confidentiality are, and ensure that all the parties have signed the confidentiality statement.  If not, then whomever has not already done so, will have to fax or electronically upload the signed consent form or the mediation will be rescheduled.

Once the Issue Mediation starts, the party making the claim, (typically the claimant), explains his or her position and why the claim is being made.  Then, the party denying the claim, (typically the insurance carrier), explains their position and why the claim is being denied or what additional information they need to make a decision.  The mediator then makes suggestions as to alternatives regarding how the issue can be resolved or points out any areas in which compromises can be made.

In Issue Mediation, the parties typically all stay on the phone but, if necessary, the call can be placed on hold so that you can have a private conversation with your attorney if you have one.  That way, the mediator and the insurance company are not privy to all your conversations. Sometimes, Issue Mediations have to be scheduled for a second day, normally a few weeks after the first, because additional information is needed and time is required to get the additional information.  If a second day is scheduled, the mediator’s explanation of their role is skipped on the second day and the parties just jump into the discussions. If all goes well, then a resolution that satisfies all parties is reached and written stipulations will be prepared to make the resolution official.   

What Happens if the Parties Do Not Agree During the Issue Mediation?

If the parties do not agree, then the issues proceed to hearing and you get your day in court and let the Deputy Commissioner decide the issues.  Hopefully, Issue Mediation has allowed you and the insurance carrier to narrow down what everyone really disagrees on. This typically gives your attorney an idea of exactly what is needed to prove your case at the hearing, which in turn makes the Deputy Commissioner’s job in making a decision that much easier.    

What Is Full and Final Mediation?

The purpose of a full and final mediation is to try to resolve all of the issues in the matter- past and future wage loss, past and future medical treatment, reimbursements for mileage and co-pays, etc.  In general, a full and final settlement is typically the only time that a claimant will get a lump sum of money like plaintiffs in personal injury cases do.

Most full and final settlements will end the relationship between the claimant and the workers’ compensation insurance carrier completely.  There are exceptions, though, and these usually apply in accepted cases.  For example, in order to settle a case when the claimant is a Medicare recipient, the Commission typically requires Medicare’s approval of the settlement amount for future medical treatment.  If, for any reason, Medicare wants the settlement of the future medicals to be for an amount that is greater than what the workers’ compensation insurance carrier is willing to pay, then the workers’ compensation insurance carrier may ask that the settlement of future medical treatment be left open (meaning not settled) and only the future lost wages be settled.  

Full and Final Mediation: Costs, Commission Mediators, and More

Full and final mediation is voluntary, so both parties have to agree to both mediate and settle the case.  Any mediations performed through the Virginia Workers’ Compensation Commission are performed free of charge by Deputy Commissioners who have not been assigned to your case.  

If you choose to use the mediation program  at the Virginia Workers’ Compensation Commission, both parties have to be represented by counsel.   You are not required to use Commission mediators but, if you do not, the mediator will probably charge the parties by the hour and mediations usually take several hours to complete.  Also, if you choose this option,  be sure that you know that the mediator you are using is knowledgeable about workers’ compensation in Virginia.   Not all mediators are knowledgeable about workers’ compensation. 

Facilitative and Evaluative Mediation

There are two types of mediation in this instance. One is a facilitative approach, in which the mediator passes messages and helps the parties consider things they may not have considered before.  The second is an evaluative approach in which the mediator tells both sides what he or she thinks the issues are worth.  Most workers’ compensation mediations are a hybrid of both types, so you get the best of both worlds.

What Is the Full and Final Mediation Process Like?

The mediation process is very informal.  Typically, what happens is that both parties start in the same room with the mediator.  The mediator explains the mediation process and the consent form and everyone signs it.   The claimant’s attorney then gives a brief statement of his or her side, explaining the case and the issues.  The claimants themselves are allowed to speak.  The defendants then give a statement of their defenses and their position.   The adjuster and the employer (if the employer is in attendance) are allowed to speak.  This is different than a hearing and usually more cathartic.

At a hearing, the claimant is only allowed to answer questions put to him or her by either attorney or the Deputy Commissioner. Since the time allowed for a hearing is limited, these questions are limited to pertinent facts.   However, in a full and final mediation, the claimant can say whatever he or she wants to say.  (I do recommend you discuss what you are going to say with your attorney first, though).  The claimant is allowed to explain how the injury, the treatment by the carrier, and the entire process has made him or her feel, how this has affected the claimant’s family, basically all the things that a claimant would never be allowed to say in a hearing. 

Once the statements are given, the parties split into different rooms, and the mediator goes back and forth between rooms.   At that point, it will feel like a conversation with the mediator.  The mediator tells you what the other side says and you tell the mediator why you disagree with what the other side is arguing.  The mediator may then play devil’s advocate and point out the weaknesses in your position (this is the facilitative portion).   At some point, either when negotiations stall, or, when the parties want to request an evaluation, the mediator can then perform his or her own evaluation of the matter (this is the evaluative portion).

The mediator then gives each side a range of what he or she thinks the value of the case is.   If the claimant has not already reached the top number, the claimant can then decide whether to come down to the top number in the range the mediator provided.  The employer/carrier then does the same with the bottom number.  If both agree, then it is a matter of reaching a number in the middle that both parties can agree on.     

It is always going to be the parties’ decision as to whether to settle or not.  The attorney can only give you advice, alternative options, and an opinion. The decision to settle has to be made by the claimant.    

How Long Does Full and Final Mediation Take?

Mediation usually takes about three hours.  It will be a long, emotional, and exhausting three hours for the claimant because so much of his or her life changes are included in the decisions made in mediation.   Having said this, mediation is usually always a good idea, even if the case does not settle.

Mediation can give the parties a better understanding of their case, flesh out the strengths and weaknesses, and determine what actions need to be taken next if settlement is not reached.    If settlement is reached, then, once the paperwork is done and the money is paid, the claimant can get on with his or her life having resolved the issues with the workers’ compensation insurance carrier.  This is the best result.