An interesting conflict can arise with private mediation. As the volume of petitions increases, the availability of state mediators will become increasingly scarce. The state mediators all have discretion in scheduling their calendars. The 28 mediator calendars will become more congested with PFB Volumes Increasing. At the annual Workers' Compensation Institute recently, I was again asked why the employer/carrier is faced with the bill when a case has to be referred to private mediation.
The simple answer to this question is "because the law says so." I am consistently surprised when this question comes from experienced attorneys and adjusters. For over 20 years, Fla. Stat. 440.25(3)(b) has provided (italics are direct quote):
if the parties agree or if mediators are not available under paragraph (a), pursuant to notice from the judge of compensation claims, to conduct the required mediation within the period specified in this section, the parties shall hold a mediation conference at the carrier’s expense within the 130-day period set for mediation.
Not a great deal of discretion in that language, "shall hold a mediation at the carrier's expense." I have never heard anyone raise the point, but have always wondered "what if the employer has no carrier?" Self insured employers do not have carriers. In fact, the way the Florida workers' compensation law is written, the employer is the party responsible for workers' compensation benefits. That is in Fla. Stat. 440.09, which says (italics are direct quote):
The employer must pay compensation or furnish benefits required by this chapter if the employee suffers an accidental compensable injury or death arising out of work performed in the course and the scope of employment.
The choices on how to "secure compensation" are found in Fla. Stat. 440.38, which states (italics are direct quote):
(1) Every employer shall secure the payment of compensation under this chapter:
(a) By insuring and keeping insured the payment of such compensation with any stock company or mutual company or association or exchange, authorized to do business in the state;
(b) By furnishing satisfactory proof to the Florida Self-Insurers Guaranty Association, Incorporated, created in s. 440.385, that it has the financial strength necessary to ensure timely payment of all current and future claims . . ..
So, the legislature has (1) mandated the employer is responsible for workers compensation, (2) allowed employers to insure against that liability, and (3) specifically made the private mediation payment mandate applicable to carriers, at "carrier's expense" not employers expense.
The market has to suspect that the volume of private mediation orders may increase in days to come. The OJCC is currently studying how to more efficiently and effectively use existing resources, as described in PFB Volumes Increasing.
There are already solutions available. I was surprised at the WCI to be reminded that there are some who either do not know of the "voluntary mediation" solution, or who have forgotten it. Rule 60Q6-110(2)(d) allows the parties to a Florida workers' compensation to mediate whenever they wish, with or without a pending petition. The Rule says (italics are direct quote):
(d) Parties to a workers’ compensation claim may jointly request voluntary mediation services from the OJCC. Such requests will be considered as individual state mediator calendars permit. Any voluntary mediation will be conducted only if all parties so stipulate. Any voluntary mediation will be governed by these rules. Failure to appear at a voluntary mediation shall not be a basis for the imposition of sanctions.
So, the parties may elect to mediate voluntarily with any State Mediator in the OJCC. And they may elect to do so at any time, with or without a petition pending. All they have to do is ask. Using this rule, the parties to a case may substitute a "voluntary mediation" for the mandatory state mediation. But, how does this alleviate calendar congestion? Well, it may not. As volumes increase, litigants may find State Mediators unavailable for voluntary mediations. As mandatory mediations increase with the volumes of petitions, there may simply not be availability for voluntary. But, why would parties assume so, and not ask?
Certainly, scheduling a voluntary mediation could require travel. That may be less of a concern in urban areas. For example, travel from Orlando to either Daytona or Lakeland might not be a great imposition. Travel between Tampa and St. Petersburg and Sarasota and Lakeland might be acceptable to the parties. And travel between Miami and Ft. Lauderdale or Ft. Lauderdale and West Palm Beach might not be a huge imposition.
But, the parties might decide instead schedule a voluntary mediation and to ask to mediate telephonically. Rule 60Q6-110(5)(a) affords the mediator discretion regarding telephonic attendance. It says (italics are direct quote):
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.
This detail could easily be dealt with much earlier than the "five days." The parties, seeking an appointment for a voluntary mediation, could easily ask for this accommodation up-front, at the time of scheduling. Something like "the parties would like to schedule a voluntary mediation with mediator ___________, with the parties appearing telephonically."
If a case does get ordered to private mediation, the expense will fall to "the carrier." In the event there is no carrier, there may be questions raised, and those will be for the assigned judge. A series of questions that a voluntary OJCC mediation might alleviate efficiently and effectively.
But recently, I had an attorney raise the question "what if the carrier does not schedule" after the "private" order is issued? This has occurred. It could be a miscommunication. It could be a mix-up or inadvertence. Or, it could occur when the wrong carrier is named in the petition for benefits, and the carrier that is served has no responsibility for anything because it is not really involved in the case at all.
Recently. I was told of such an instance in which the "carrier" has elected to hire assistance with its case(s). The carrier in this example hired a "servicing agent" to manage the day to day issues with its claims in Florida. And the first question, who is responsible to pay for the private mediator? The statute does not seem to address this, and would suggest that there will nonetheless be a "mediation conference at the carrier’s expense." The statute does not say "unless the carrier hires a servicing agent."
But, if the carrier does not, then what? In that instance, it is possible that the assigned judge might enter an order to show cause. That order might suggest the potential of sanctions for either or both or all parties to the case. Everyone should remember that an order to show cause is merely a method for the judge to ask a quesion(s). Something is not as it should be, and the judge is asking why. If the mediation has not been scheduled, that is what the judge knows. Why it has not been scheduled may be the fault of one party, multiple parties, or all parties. The order to show cause is the judge asking "who" is responsible and "why" the mediation is not set. An order to show cause provides an opportunity to explain, and should be seen as such an opportunity not a criticism.
What is an injured worker to do when a case is ordered to private mediation because of the time limitations and the appointment volumes? First, the worker might consider seeking a voluntary mediation solution with an OJCC mediator in a less busy District or division. If the case must be privately mediated, the effective counsel will communicate early and often with either the carrier or their counsel, if represented. If communication fails to produce a mediation appointment, then the injured worker might want to point out the issue and seek relief from the assigned judge (file a motion instead of await the order to show cause).
Any request for relief should be in a motion. Why? Because the rules say so. Rule 60Q6-115(1) says (italics are direct quote):
Any request for an order or for other relief shall be by motion and shall have a title describing the relief requested. The judge may treat any request for relief from an unrepresented party as a motion. All motions shall be in writing unless made on the record during a hearing and shall fully state the relief requested and the grounds relied upon.
So, should the carrier fail to cooperate in scheduling the private mediation, perhaps a Motion to Compel? Or perhaps a Motion to Enforce the order that required private mediation to begin with? A great many of the questions that I encounter can be answered with the simple provisions of Rule 60Q6-115(1). File a motion, describe the problem, conflict, or situation, and ask the judge to provide relief.
The congestion of state mediation calendars may potentially increase as more petitions are filed. Florida's economy is growing. Employment is increasing. And, unfortunately that may mean more accidents and more petitions. That may mean cases ordered to private mediation. That may provide opportunities for voluntary mediation. And it may cause conflicts and issues that judges will need to resolve. Proactive attorneys may seek those resolutions by motion, rather than waiting for the order to show cause.