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Workers' Compensation Judges' Mediation Procedures

Linda Tobin

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

  3. Are you willing to mediate claims that are assigned to you for hearing and decision?

    I prefer not to do so, but will if there is a good reason for an exception to this rule. My responses to these questions assume that the case is not before me. In my own case, I would proceed differently.
  5. Are you willing to mediate claims in which one or both parties are not represented by counsel?

    Yes. I request that unrepresented parties bring a trusted friend or family member, so that they will feel supported and have a reality check.
  7. Do you require the parties to execute an agreement to mediate? If so, please describe briefly the matters addressed by the agreement.

  9. How much time do you typically allow for a mediation session?

    I set aside a morning or an afternoon.
  11. Do you require the parties to submit a pre-mediation memorandum? If so:

    • What information must be contained in the memorandum?

      A brief history of the case, evidence and strengths of their position, and a summary of any offer or demand. The memorandum is confidential, and need not be copied to the other side.
    • What documents, if any, must accompany the memorandum?

      Any evidence obtained but not yet part of the file.
    • How far in advance of the mediation must the parties submit the memorandum and accompanying documents?

      Three (3) days.
  12. Do you conduct a pre-mediation conference? If so, please describe what takes place at that conference.

  14. 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?

    An adjustor with power to bind the carrier must be available by phone. Claimants and employers (if the employer wishes to be involved or is uninsured) must appear in person.
  16. Once you receive a mediation request, what is the usual amount of time elapsed until the mediation takes place?

    We try to schedule them very promptly. This depends on the availability of the parties and counsel, as counsel usually have schedules more complex than mine.
  18. Describe generally how you conduct a mediation session.

    • Describe each step of the process.

      I vary the process somewhat depending on the nature of the case and my initial feeling for the lay participants. If anyone appears emotionally labile, I proceed very slowly. If parties seem fairly detached and crisp, we go through the stages more quickly.
      First I meet with everyone together, introduce all, including myself, and explain that I won't be deciding the case or revealing anything to their judge or the other side without their specific permission. I find out if there has been an offer and demand.
      I then meet with them separately, and ask the lay participants to describe their case and its strengths, and ask the attorneys to do the same. I ask them what is most important to them in an outcome, and give them an opportunity to express their feelings about the situation. I try to ask questions about any areas which seem particularly fraught, to make sure we are not missing something important to a participant. There may be non-monetary issues which must be resolved before a claimant can feel that there is a true settlement. If so, I try to identify them and discuss possible solutions.
      I then tell the parties what I view as the range of possible outcomes (not just on this petition, but of the case as a whole), any weaknesses of their position they many not have considered, and I explain the range of what the case is worth to them or could cost them. If anyone is way off, I tell them so. The parties then go to separate rooms to discuss the case with counsel and family members.
      I them meet with the parties again, discussing specific settlement possibilities. If the matter resolves, we all meet together, and congratulate ourselves for doing a good job. If it is not resolved, or if the parties have to do some research, I reschedule, and we list what everyone will do before the next meeting. If an agreement is reached, I write up my understanding of the agreement after the meeting, and send it to the parties to make sure we all have the same understanding.
    • 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.

      I believe that I use a mixed approach, with the ingredients varying, hopefully with the needs of the particular parties.
  20. Are you willing to conduct more than one session per claim?

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

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