Questions and Answers About Mediation
What is mediation?
Mediation is a process in which a neutral third party (mediator) helps the parties communicate with one another in an attempt to reach an agreement that is acceptable to everyone. Mediation is a forward-looking process in that it encourages the participants to focus on their current and future needs and interests rather than focusing on fault and blame for past actions. Mediation differs from a court proceeding in that the parties maintain control of their dispute. The decision-making power in mediation lies with the parties, not with the mediator.
Do I have to appear when I am ordered to attend a mediation?
When the Board orders you to appear for a mediation, you are required to show up at the scheduled place and time. It is important to the mediation process that the claimant be present. In addition, an insurance company representative, with full authority to resolve the issues at hand, should be present. In cases involving suitable employment, a representative for the employer should also attend. You fulfill your obligation under the order by showing up in good faith to try and mediate your dispute. You are not required to reach an agreement and you still maintain your right to a judicial determination (hearing) if no agreement is reached.
What can I expect when I participate in a mediation?
Mediation is a very informal process and all of the participants will be given the opportunity to contribute to the discussion. The mediator will encourage a discussion of the issues and of possible solutions. Time will also be spent evaluating these solutions so that if an agreement is reached it will address the interests of the parties. The mediator may offer suggestions and assistance in developing options. However, the final decision is left to the parties.
How comfortable should I be about speaking during the mediation?
Mediation is a confidential process. This means that the information that is shared during the mediation cannot be used by any of the participants in any subsequent court proceedings. In addition, the mediator cannot be subpoenaed to appear at any subsequent court proceedings with regard to what went on during the mediation. Any notes that the mediator takes during the mediation are destroyed immediately following the mediation. The only indication that the parties participated in a mediation is a standard form that is included in the board's file subsequent to the mediation. This form simply indicates who was present at the mediation, whether or not an agreement was reached, and if an agreement was reached what the basic terms of that agreement were. Mediations may not be recorded.
Who will my mediator be?
A State Board of Workers' Compensation administrative law judge or staff attorney will mediate your case. These judges and attorneys are certified mediators with experience in workers' compensation law. If an administrative law judge mediates your case, that same judge will be prohibited from hearing your case if the case ends up in court. This restriction is necessary to preserve the mediator's neutrality in the process.
What does the mediator do?
The mediator's job is to try and help clarify the issues and assist the parties in negotiating with one another. At times, the mediator will also serve as the voice of the board by informing the participants how the board might respond if a certain issue were to go to a hearing. Furthermore, the mediator will assist the parties in developing and examining their options. The mediator controls the process; the parties control the result.
What is expected of me at the mediation?
It is expected that all parties will come to the mediation in good faith. The mediator will ask the participants to share their thoughts. You should be prepared to provide the mediator with information you feel is relevant. You are not required to speak, but it is usually helpful for everyone involved if everyone participates openly. Mediation is your opportunity to "have your day."
How long will the mediation take?
It depends. The length of time spent in the mediation depends on a number of factors: the number of issues being addressed in the mediation, complexity of case, amount of information you choose to share, the preparation of the parties. The mediation can be as short as 15 minutes or may last for hours. The mediator may also find it necessary to schedule a subsequent mediation session to address certain issues more thoroughly.
Do I need to bring anything with me to the mediation?
You may wish to bring any documentation with you that you feel is relevant to the issues you will be addressing during the mediation. For example, if the issue involves payment of medical bills, you should bring along copies of your bills.
Why is the board promoting the use of mediation?
Mediation offers the participants an opportunity to meet with one another in person. It also enables the parties to speak with one another and share their interests. The board believes that the parties to a dispute are in the best position to know what is best for themselves. Mediation affords the parties an opportunity to maintain control of their own destiny rather than submit their dispute to a decision-making authority. The mediation process is also assisting in putting the "humanity" back into the system. The board also feels that the use of mediation helps parties address their needs quickly as mediations are scheduled generally within 15 days of receipt of request.
Which issues might I expect to be mediated at the board?
The following issues are subject to mediation at the board:
(1) Settlement conferences where all parties are agreeable to Board assistance with settlement negotiations;
(2) Medical issues including change of physician and payment of bills which involve a compensable medical condition;
(3) Suitable light-duty employment issues and suspension of benefits;
(4) Rehabilitation issues and disputes in compensable cases which have been designated catastrophic;
(5) After a case has been settled, attorney fee liens and disputes involving the reasonable value of services rendered; and
(6) Determination of the correct average weekly wage.
Where will the mediation take place?
The mediations will take place at the State Board of Workers' Compensation. The Board uses 17 mediation sites across the State of Georgia. With regard to which board location, this determination may depend on where the accident occurred or where the parties to the claim are located. The Board attempts to set the mediation at the board location that is most convenient for the participants involved. If special accommodations are needed, please contact the Board at least 24 hours in advance of the scheduled mediation.
Can I request a mediation?
A mediation conference can be requested in a case by filing the appropriate form with the board. For settlement, the parties are required to file a Board Form WC-100 showing all parties are ready to engage in settlement negotiations. For issues other than settlement, mediation may be requested on a Board Form WC-14. In addition, if a request for hearing is submitted to the board and that request deals with one of the issues set out above, the matter may be set for mediation prior to being scheduled for a hearing.
When will the mediation take place?
A mediation is generally scheduled within 30 days of a request. The Board will also schedule emergency mediations in cases where such action is necessary or requested by the parties.
If you still have questions, please call (404) 656-2939 in the Atlanta area or 1-800-533-0682 outside the Atlanta area, and ask for the ADR Unit. Finally, please see the Board's web page at www.sbwc.georgia.gov.