Sunday, October 4, 2015

Mediation is Growing, it can work in Comp

In 1962, the Beachboys released Surfin' Safari. Expounding on their enthusiasm for the sport, they noted

I tell you surfing's mighty wild
It's getting bigger every day
From Hawaii to the shores of Peru

Catchy tune. 

I remember mediation coming to Florida workers' compensation. Not with a bang or fanfare. It was not popular. I recall some of the sage "old-timers" telling me that it would never work. Mediation was a great tool for civil litigation they allowed, but "it will never work in comp."  Asked naively why, and the best response I ever got was "comp is different, everybody knows that."

The first workers' compensation mediation I ever attended was conducted by Gail Adams. Gail was employed by the state at the time to mediate workers' compensation cases. She later became a workers' compensation judge in Jacksonville, transferred to the Orlando OJCC and eventually was elected to the Circuit bench. I was in Jacksonville at that time and Gail was one of three workers' compensation mediators in the state. Her responsibilities included essentially everything north of Orange County (Orlando), from the Atlantic ocean to Alabama. A considerable geographic area. 

She traveled to Jax for the mediation. We had no state facilities, and so we used the claimant's attorney's office. He was represented by Roger Risk, a true gentleman, from whom I learned a fair bit early in my career. There was a conference room, but no "break-out rooms" per se. I therefore sat in Mr. Risk's office, with the attorney with whom I was attending the mediation, in front of a desk laden with piles of paper. It looked like a recycle center drop-off. 

The claimant and Mr. Risk sat in the firm's conference room. The claimant had brought with him a union representative. Though the date of accident was in the late 1980s, the representative had brought  copy of the workers compensation statute from the early 1970s with him. We were all obliged to listen to him repeatedly recite "what the law says" from this tome as if it were gospel. Gail Adams spent a great deal of time discussing the law with this well-intentioned, though misinformed, gentleman. That day in my first mediation I learned about the patience a mediator must have.

As the afternoon wore on, the union representative retired to the office waiting area. I recall after we reached impasse, we left the office past him. He had removed his shoes and was propped on the waiting area couch. His eyes shaded by his open workers' compensation pamphlet from the 1970s, soft snores emitting from beneath. I envied him his peacefulness after a long day of arguing about the law. 

It was one of those seminal career moments. I soon had a chance to discuss it within a group clustered in the local comp office. Back then we seemed to always be there for some purpose or another. One wise and experienced attorney offered his two cents on why the mediation I described had failed.  "You see," he said "workers' compensation is just too complex for mediation." He said it would never catch on. Too many intricacies, too much statutory complexity and change, it just would never work. That, he explained to us, is why that case had reached impasse that day, a "complete waste of time."

That case later settled. Was it because of something said in that mediation? We will never know. What we do know is that the process does facilitate us talking. Talking may not solve everything, but over time I have learned it is usually a good place to start. 

I have to admit I had my share of unsuccessful mediations. One lawyer I ran into periodically was well-known in Jax for asking for the moon in his openings. Defense lawyers came to expect it. We all resigned ourselves to dealing with it. Unfortunately for us all, his clients were often convinced these demands were achievable and realistic; they were not. It made for slow going, and often ended in impasse. Everyone needs to remember that there is posturing and there is the bottom line, and clients on both sides of the table need to understand that also. 

Another point that is critical for mediation is preparation. The successful party knows their own case, the opponent's case, and is willing to listen to all sides. This work may lead to a resolution of the case. If it does not, this preparation can hone the case that is later presented to the judge. A good mediation, prepared for carefully, will be a benefit to the lawyer that allows it to be. 

I was not many years into the practice when the mediation process was made mandatory. There was discussion about whether one can be forced to do something voluntary. The suggestion being that "mandatory mediation" was akin to "jumbo shrimp," a classic oxymoron. Some scholars made interesting fodder of that conundrum. Eventually they seemed to reach consensus that making us all appear for mediation was not really forcing the issue, merely forcing us to discuss the issue. We adapted, and mediation grew beyond 1994. Yes, without fanfare mandatory mediation in Florida workers' compensation has reached drinking-age this year. 

There have been great strides in workers' compensation mediation across the country. Virginia has jumped in with both feet, as has Washington. Pennsylvania more recently has begun using mediation in its process, following the lead of Georgia and others. We see a growing trend towards the benefits of self-determination and conciliation. Florida is among a small handful of mandatory mediation states, but the trend toward mediation's use is growing nonetheless. 

I was pleased in July to see a story on WorkCompCentral advising that Connecticut is joining the mediation parade. Their program will be voluntary, It will be "available only if both parties agree and a request is submitted through" the chair of the Connecticut Commission. This seems a little redundant. If they agree to mediate, and if settlement/resolution is otherwise allowed, why would they need permission?

Perhaps that answer is simply one of resource allocation, as the Commission is providing the mediator in the form of a Commissioner. Under the proposal, The parties would file their request along with the names of two Commissioners upon whom they can agree. This would presumably put the chair in a position of accommodating the requested. It will be different than Florida's program, but so are many other states' programs. 

Florida does not use judges as mediators, as many states do. We are fortunate to have a great team of state mediators spread across Florida. Next time you are in for a mediation, take a minute to thank them for the job they do. 

Prepare for mediation. Know your objective for mediation. Be prepared to listen in mediation. Learn from the exercise. If it settles the issue or the case, that is great. If it does not, it is still a great benefit if used carefully and thoughfully.

Will mediation work in workers' compensation? The answer to this is that it certainly can work. The "will" is up to those who would use it and if they have that "will" then mediation is certainly a way. 

I tell you mediating's mighty wild
It's getting bigger every day
On compensability and benefits too
. . .

Happy 21st Mandatory Mediation!

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