How Does It Work?
First, there are two kinds of mediation under the Pennsylvania workers’ comp law- mandatory and voluntary. At the first hearing on a petition, the workers compensation judge will schedule the matter for a mandatory mediation unless deemed futile. A mediation can be deemed futile in various circumstances- a common one is that the attorney for the insurer/employer has no authority to settle the case.
However, the parties can agree to a voluntary mediation with a workman’s compensation judge at any time- whether a petition is pending or not. This allows the parties to choose which particular judge they want to mediate the case.
Who attends a mediation?
The injured worker, his or her attorney, and the attorney for the insurer/employer. Sometimes, the claims representative appears in person but often times they attend via phone.
What happens at the mediation?
The attorneys, judge, and claims rep discuss settlement of the case. Most judges will have memos from the opposing attorneys, before the mediation, outlining the issues pending, the amount demanded for settlement, the amount offered to date, etc. Then, once the judge has a handle on the pending issues, he or she meets with each side privately to discuss the case and what he or she thinks is a fair resolution. In most cases, the opposing sides will go back and forth with numbers until a deal is reached.
How long does a mediation take?
That depends. Sometimes a deal is reached in five minutes. Other times, it takes three hours. Sometimes, the case doesn’t settle at the mediation. I would say the average mediation, at least from my experience, is approximately 1 to 1.5 hours.
Are mediations effective?
Usually. If both sides have a sincere interest in resolving the case and prepare properly, the mediations tend to result in a deal. If they don’t result in a deal, most help streamline the issues.
My clients- injured workers in Pennsylvania, find the mediations to be productive- if not therapeutic as well. In a mediation, which is not recorded like testimony is at a hearing, the parties can speak more freely than in court at a formal proceeding/hearing. My clients can talk to the judges without the fear of being cross examined on an issue in a hostile manner.
Can the Judge who is deciding the case also be the mediating Judge?
Yes, but all parties have to agree to this. Most mediations, however, do not involve the judge who is presiding over the pending petitions. One of the benefits of a mediation with a judge who is not deciding the pending litigation, is that the parties can talk more openly. The mediating judge will not disclose anything that is said at the mediations. The only thing the mediation judge will disclose to the presiding judge is whether the case settled or not.
What issues are mediated?
The typical mediation involves discussion about a global settlement which is to say a settlement that disposes of all benefits available under the Pennsylvania Workers’ Compensation Act in exchange for a lump sum, and a parting of the ways. Some mediations solely deal with a particular petition. But most involve the global settlement structure.
If the Judge recommends a particular figure for settlement, do I have to accept that?
No. The Judge is merely there to provide a suggestion. If you are an injured worker, no one can force you to settle- not even the judge. Settlements are always voluntary. The attorneys and the Judge are there to help with recommendations only.
Must I have an attorney present on my behalf?
It’s not a technical requirement but it’s strongly suggested. Injured workers who are represented tend to obtain more substantial settlements. PA workers’ compensation matters are complicated. Injured workers who represent themselves do so at great risk.
If I settle my case at the mediation, what happens next?
All workers compensation lump sum settlements have to be approved by a judge at a hearing. So, if you reach an agreement with your insurer/employer, a hearing will be scheduled for the judge to approve the agreement- which is called a Compromise & Release Agreement. This is a requirement under Pennsylvania’s workers’ compensation law to make sure the injured worker understands the full legal significance of the settlement, and the effects on their rights under the law.
If I don’t settle my case at the mediation, will I be able to settle my case at a later time?
Yes. The mediation is simply an attempt to settle a case. I’ve had cases that settled a day later, two weeks later, or years later. Each case is different.
For more info about the Pennsylvania workers’ compensation Mediation Process, call experienced work injury lawyer Michael W. Cardamone of Cardamone Law directly at (215) 206-9068 (All Communications Remain Confidential) for a free and prompt consultation. Or email Michael@CardamoneLaw.com
Attorney Cardamone limits his practice strictly to the representation of injured workers and he is a Certified Pennsylvania Work Comp Specialist.