Mediating Workers' Compensation Disputes in Virginia

August 16, 2012 (Press-News.org) Through the Virginia Workers' Compensation Commission, injured employees may seek benefits to compensate them for on-the-job injuries or work-related illnesses that prevent them from working. While sometimes employers do not contest workers' comp claims, a considerable number are disputed. Workers' comp litigation can be costly, expensive and very troublesome for injured employees struggling to make ends meet without consistent income. However, the Commission offers mediation services to help streamline the process and allow parties to forge agreements. This article highlights the mediation process and the benefits of working towards mutual resolutions.

What Is Mediation?

At its core, mediation is a form of alternative dispute resolution, often referred to as ADR: a voluntary process where the employer and the injured employee work with an impartial party (the mediator) to generate their own solutions to their conflict. Unlike contested proceedings where an administrative law judge decides who wins and loses, mediation is genuinely about finding workable solutions for both parties. The process is completely voluntary, confidential and informal. The mediator helps the parties identify issues, clarify misunderstandings and explore possible solutions.

Mediation is available to all employees seeking compensation benefits as well as to employers contesting such requests. Sessions are generally scheduled for two-hour meetings, but the parties are free to spend additional time crafting agreements. Neither party waives any rights by opting for mediation. If no resolution is reached, the parties retain their rights to a hearing before the Commission.

Pros and Cons to Mediation

Mediation has several benefits. Aside from the confidentiality and relaxed nature of the process, mediation offers the opportunity for both parties to explain the nature of their cases from their own perspectives without the constraints of court rules. With this in mind, the parties have a chance to hear from each other in a nonconfrontational setting, which also works to preserve the relationship between employer and employee.

Mediating parties also maintain control of their proceedings. They are not beholden to court-imposed deadlines controlling discovery, motions and other legal procedures. Finally, they must agree to any settlement reached. Neither party can impose its will and force the other to accept an agreement.

Mediation also has some drawbacks. While the process is geared toward compromise, one party may be completely unwilling to do so. After all, mediation requires both parties to be open to solutions that will benefit both parties. When the dispute involves an issue of law (e.g., whether an exception to the "coming and going rule" applies to the particular situation), a binding legal decision may be necessary and mediation cannot provide this. Also, there may be concerns about whether a mediated agreement is legally enforceable, and what steps may be taken to hold the parties to their agreement. When these issues arise, mediation may be inappropriate.

What Cases Are Best for Mediation?

Mediation was first introduced for Virginia workers' comp disputes in 1999, and the program's initial mediators included three staff attorneys, the Commission's ombudsman and claims director, as well as the claims manager. As the program has grown, judges have noted that nearly 80 percent of contested claims have been resolved through mediation. In essence, people recognize the benefits of mediation in light of the time and expense of seeking remedies through contested proceedings.

Nevertheless, no set criteria dictate which workers' comp cases will benefit from mediation. Some may involve payment of large medical bills or disputes over compensable injuries. Ultimately, mediation works if the parties are patient, open to re-evaluating their respective positions and receptive to the mediator's suggestions. If you have questions about the mediation process and whether your case is ripe for alternative dispute resolution, an experienced workers' compensation attorney can advise you.

Article provided by Gammon & Grange, P.C.
Visit us at www.gg-legal.com