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Workers' Compensation Judges' Mediation Procedures

Paul E. Baker

Office: Pottsville District: Central
  1. Please list the offices at which you will mediate a claim.

    Pottsville and Harrisburg.
     
  2. Are you willing to mediate claims that are assigned to you for hearing and decision?

    Yes, but I use a facilitative approach rather than an evaluative approach when mediating my own cases.
     
  3. Are you willing to mediate claims in which one or both parties are not represented by counsel?

    I would be willing to try. At the time the mediation is scheduled, I would provide all parties with some type of a "disclaimer" concerning my role and would at that time strongly recommend that the unrepresented party retain counsel. I would also insist that the unrepresented party sign a form indicating that he/she has read and understands the role of the mediator as set forth on the "disclaimer." If the mediation results in a tentative agreement, I would again advise the unrepresented party to strongly consider seeking the advice of counsel prior the hearing to approve the Compromise and Release.
     
  4. Do you require the parties to execute an agreement to mediate? If so, please describe briefly the matters addressed by the agreement.

    Only when I am mediating a case that is not assigned to me. The agreement to mediate includes provisions dealing with mediator impartiality, disclosures, confidentiality, and the role of the mediator.
     
  5. How much time do you typically allow for a mediation session?

    Three (3) hours.
     
  6. Do you require the parties to submit a pre-mediation memorandum? If so:

    Only when I am mediating another judge's case.
     
    • What information must be contained in the memorandum?

      I send a form to counsel that is termed a "Confidential Information Form."
       
    • What documents, if any, must accompany the memorandum?

      None.
       
    • How far in advance of the mediation must the parties submit the memorandum and accompanying documents?

      Ten (10) days.
     
  7. Do you conduct a pre-mediation conference? If so, please describe what takes place at that conference.

    Where the case is assigned to another judge, I will have a phone discussion with each attorney after I receive the Confidential Information Form.
     
  8. Do you require all participants (claimant, adjustor/employer representative, counsel) to attend the mediation personally? Under what circumstances do you permit a participant to attend by telephone?

    I will permit the adjuster/employer representative to participate by phone.
     
  9. Once you receive a mediation request, what is the usual amount of time elapsed until the mediation takes place?

    Thirty (30) days.
     
  10. Describe generally how you conduct a mediation session.

    • Describe each step of the process.

      The process is different depending on whether it is my case or another judge's case. Because I seldom mediate my own cases, the steps set forth below apply where I mediate another judge's case.
       
      1. I give an introductory statement emphasizing how my role as a mediator differs from my responsibilities as a workers’ compensation judge. I also explain how the mediation process will proceed.

         
      2. The moving party (where a petition is pending) makes an opening statement setting forth that party’s “interests.” I encourage the actual party to make the opening “interests” statement, but in most cases they defer to their attorney. In most cases, however, I do succeed in getting the claimant and adjuster/employer representative to contribute to the opening statement.

         
      3. The other party, normally the attorney for that party, then presents that party’s “interests” statement.

         
      4. I then ask each party to explain how that party arrived at their “demand,” in the case of the claimant, and the “offer” or “counter-offer”, in the case of the employer/insurer.

         
      5. I then discuss the areas in which there are common interests/agreement before turning to the areas where there remain conflicting interests, i.e., disagreement.

         
      6. I will then meet individually with each party and their attorney to discuss what that party considers to be the strengths and weaknesses of his/her/its position. Naturally I will "test" the validity of that party's beliefs by asking appropriate questions and expressing my thoughts as a type of "reality check."
       
    • Indicate whether you use a facilitative (i.e., helping the parties to communicate and generate their own solutions), evaluative (i.e., discussing the strengths and weaknesses of each party's case and/or offering an opinion as to the settlement value), or mixed approach.

      If I am mediating my own case, I will use a facilitative approach. When I mediate another judge's case, I initially use a facilitative approach. If that method does not result in an agreement, I will shift to a more evaluative approach in an effort to facilitate an agreement.
     
  11. Are you willing to conduct more than one session per claim?

    Yes.
     
  12. Is there anything else the parties should know or do in advance of the mediation?

    No.
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