Tuesday, May 31, 2016

Questions about Mediation

I have received several inquiries lately about live versus telephonic appearance at mediation. There are two basic themes to the questions. First, what is the OJCC "policy" on telephonic appearance (phrased as "what are mediators told to do"). The second is in two parts, essentially why mediators have discretion, and why certain judges do not overrule their decisions regarding telephonic appearance. A third question that comes up periodically is why mediations are scheduled as promptly as they are; such as "why can't we have more time after the PFB is filed to do our discovery and gather information." 

All of these are worthy of a response. And the response is perhaps of general interest to the public, beyond just those that inquire (one inquiry recently asserted that "countless" attorneys express similar thoughts and questions). 

There is no "policy" of the Office of Judges of Compensation Claims, other than stated in the statute and the Rules of Procedure. The statute requires that mediation of a petition (PFB) "shall be held within 130 days after the filing of the petition." Fla. Stat. 440.25(1). This seems like a significant time period to some, but it really offers a fairly small window of opportunity. 

The statute says mediation cannot be noticed until 40 days after the PFB filing. Parties need appropriate notice in order to prepare for and attend mediation. That generally means 30 days advance warning. So if a petition is filed today, May 31, 2016, the mediation cannot be noticed until July 10, 2016 (a Sunday, so July 11, 2016). Thirty days after that (the earliest we can hold mediation and give ample notice) is August 10, 2016. And the mediation needs to be set to occur on or before October 8, 2016 (130 days). 

So, essentially, we have 59 days during which to conduct that mediation (when the first date does not fall on a weekend or holiday, the period is generally 60 days). Eighteen of those days are weekends, and two are holidays (July 4 and Labor day). So, really, we have 39 work days on which to set that mediation. And, three days of that period particular period are WCI (hard to schedule). So, the available period is a fairly concise window at which we aim. Our "policy" is to follow the statute, and so this is what we try to accomplish in terms of scheduling. 

The rules (Chapter 60Q) have been in effect for more than a decade. These provided originally that "no one may appear at the mediation conference by telephone unless such appearance is approved in advance by the mediator." The discretion of the mediator regarding telephonic appearance has been longstanding. This rule does not say "unless otherwise ordered by the Judge." However, there are those who have moved a judge to allow telephonic attendance, and there are judges who have granted such motions. Rule 60Q6.110(5)(2006).

That, of course, is up to the judge. Judges have a measure of discretion in making decisionsPeople sometimes are troubled by this; either because a judge declined to do so when they wished it or because a judge did so when they opposed telephonic appearance. But the Rules provide very broadly that "any request for an order or other relief shall be by motion." Rule 60Q6.115(1)(2006). Judges have discretion. A particular judge in a case may intercede on the telephonic appearance question. Another may decline to do so. 

The current version of the rules essentially says the same, although the subparagraph (a) of the rule was changed in 2014 to create a default to telephonic appearance by adjusters:

(a) The adjuster, if represented by counsel, may attend the mediation by phone unless an objection is filed with the mediator on the basis of good cause. The mediator shall have discretion to allow any party and/or that party’s attorney of record to appear at the mediation conference by telephone upon the party’s written request furnished to the mediator and the opposing party or, if represented, the party’s attorney of record no fewer than five days prior to the mediation conference. The expense of telephonic attendance shall be borne by the person or party attending by telephone.

Why does the rule provide for this? There was a great deal of discussion. The proposals for rules are published, workshops are held, hearings are held, committees are listened to, the public is listened to, and eventually rules are adopted that are intended to facilitate effective practice before the OJCC. So, why the Rules say what they say in any instance is a a long process, replete with input and suggestion from the public. 

Although some judges may order or excuse appearance by order, the discretion regarding telephonic appearance expressed in the rule lies primarily with the mediator. This has remained the same for a number of years. The answer to the second question, "why mediators have discretion," is essentially that they have the obligation to mediate the case. They individually have to make decisions about the process they believe is most likely to be effective. The rules have therefore sided with that discretion, and throughout a great many rules workshops and hearings, various positions on this discretion have been discussed. The end result of those discussions has been a general consensus that the individual mediator discretion is overall appropriate.

Several people have asked me recently about "the Governor's policy" on mediation. There was a period, during Governor Crist's term, when he directed that state agencies be cognizant of the cost of travel to do state business. This was couched in terms of financial cost, time, and resources (including emission of greenhouse gas). That was a suggestion or encouragement of consciousness and consideration. There was never a specific Gubernatorial mandate for telephonic attendance at state mediation in workers' compensation, and this suggestion or encouragement was several years ago. 

Finally, the third question is fairly well addressed in the discussion above. Why are mediations scheduled so rapidly? The mediations are set as quickly as practical. The window of opportunity is somewhat brief, and the calendar days available within that window are limited. In order to effectively pursue compliance with the law as it has been provided to us, the OJCC attempts to stay on top of the process and get the mediations set as promptly as practical. 

But, can the parties affect this? Absolutely! During that 40 day window following the PFB filing, counsel can cooperate, call each other and call the assigned judge's staff, and coordinate a date that is acceptable to all. Then, when the notice issues on the 40th day (or close thereafter), the parties receive a date they selected, without conflicts, prearranged. This will not always work with calendar congestion and limited availability, but I always encourage folks to try. 

It is well worth it and much more likely to be effective than a similar search for a coordinated date after the 40 days has passed and a notice has been served. The earlier one looks at the calendar, the less congested it is likely to be. It is logical that looking three days after the PFB filing the calendar will be more clear than looking 50 or 60 days after filing. 

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