Some workers’ compensation cases undergo mediation to discuss the terms of a settlement
When a dispute arises over a workplace accident, injury or illness, the case isn’t automatically taken to court. There are other out-of-court ways to resolve workers’ compensation disputes. These alternative dispute resolution methods can save all parties time and money, since taking cases before a court is time-consuming and expensive.
What is mediation?
Mediation is when 2 or more parties in a disagreement meet with a third party (mediator) who helps both parties reach an agreement. In workers’ compensation mediation, the employee, the employer, or the insurer are the parties that typically meet to discuss the terms of the settlement. The mediation process is forward-looking, meaning the mediator motivates the parties to overlook past faults and focus on how the current situation will affect their needs and interests in the future.
In Georgia, the workers’ compensation mediation process is voluntary, confidential and consensual.
Is workers’ compensation mediation mandatory?
Mediation is not required when appealing a denied workers’ compensation claim in Georgia, unless ordered to do so by the State Board of Workers’ Compensation. If you are ordered to undergo mediation by the State Board, then it’s mandatory that you attend—though you are not required to reach an agreement.
Who is a mediator?
The mediator has to be an independent third party who does not support any party. Whatever the outcome of the negotiation, the mediator must not benefit in any way. In a workers’ compensation mediation, the mediator is usually an attorney who is trained as a mediator and who has experience and knowledge in workers’ compensation claims.
In workers’ compensation mediation, the 2 parties can agree on a private mediator to handle their dispute or the State Board can assign a mediator.
Who attends mediation?
In a workers’ compensation mediation, the parties who generally attend mediation include:
- The mediator
- The injured employee
- The injured employee’s attorney
- The attorney for the employer or insurer
In some cases, a representative of the employer can also attend the mediation. Additionally, as the injured employee, you can bring your spouse, friends, or family member for support.
What does the mediation process involve?
The mediation process begins when all parties are present. The mediator typically opens the meeting by laying out their role in the process. Next, both parties are given a chance to present their case, interests, and expectations. The mediator then shares their opinion on the views of each party, but they do not yet decide on an agreement.
The mediator will usually meet both parties privately to try and understand their needs, terms of a settlement, and the amount needed to settle the case. The mediator will analyze the strengths and weaknesses of each party, maintaining a neutral stand. By meeting with each party, the mediator can gain better insight into how to resolve the dispute.
The mediator can also suggest other options on how to resolve the case and attempt to persuade both parties to come to a mutual agreement.
Your attorney should be present all the time as you speak to the mediator to ensure that your rights are fully represented.
Will the injured worker have to speak during mediation?
Injured workers (claimants) are generally not expected to speak during the workers’ compensation mediation. Typically, the claimant’s attorney will present their client’s wishes and interests, and determine the amount he or she needs for case settlement. Of course, the injured worker should be free to take part if they feel they want.
In most cases, the mediation process is private with no recording.
The mediator cannot document anything apart from the documents presented to them. Regardless of the results, whether the agreement is reached or not, any notes written down will be destroyed after the mediation process.
How long does mediation take?
There is no standard timeline for mediation. The average time taken during the workers’ compensation mediation process depends on several factors:
- How complicated the case is
- The number of matters that need to be addressed
- How well the parties were prepared
- The information that the parties are willing to share
- How motivated either party is to settle
Mediation can take 1 hour, 5 hours, or even the whole day. In a very complex situation, the parties might agree and schedule subsequent mediation sessions.
Where does mediation take place?
Mediation for workers’ compensation cases in Georgia typically takes place in a conference room at the State Board of Workers Compensation. However, there are several free mediation sites in Georgia, and the State Board will select the location, depending on where the injury occurred and where you are located. The State Board usually seeks to select a convenient mediation site for both parties.
Alternatively, private mediation can take place at an attorney’s office, but this may incur some additional costs. The parties involved will have to agree on who will pay the mediation fee before the private mediation begins.
Should I bring anything to workers’ compensation mediation?
Typically, the injured worker will not have to bring anything to mediation — so long as they show up in good faith and are ready to reach an agreement. However, the injured worker should prepare for what to say (and what not to say) with their attorney beforehand and be prepared for what to expect.
What happens after mediation?
At the end of the mediation, the expectation is that both parties will have made it clear what they need and what they will offer to settle the case. If they reach an agreement, the mediator formalizes it in writing, and both parties sign the agreement. The mediator will then send the agreement to the State Board of Workers’ Compensation for final approval.
In cases where the parties fail to reach an agreement during mediation, the case will proceed to a workers’ compensation hearing with the State Board.
Information revealed during mediation should not be used during the court hearing. Likewise, the mediator should not be used as the witness during the hearing. Even when the mediation is not successful, you should not consider it as a waste of time because, at that point, you will know what your employer or insurance company is willing to offer as a settlement for the case.
