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Workers' Compensation Judges' Mediation Procedures

David W. Henry

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

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

    No.
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  5. Are you willing to mediate claims in which one or both parties are not represented by counsel?

    Yes, but I prefer not to do so. I do not feel as if I can advise an unrepresented claimant, and he or she may need advice as to whether the proposed settlement is not only fair, but in his best interests.
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  7. Do you require the parties to execute an agreement to mediate? If so, please describe briefly the matters addressed by the agreement.

    No, I never have, as I do not do my own cases.
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  9. How much time do you typically allow for a mediation session?

    If it is a "regular" session, I generally will do one in the morning and one in the afternoon. I have held "special" sessions where each case is given only one hour.
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  11. Do you require the parties to submit a pre-mediation memorandum? If so:

    Yes, in fact if they do not provide them within the time limit I set, there will be no session.
     
    • What information must be contained in the memorandum?

      I ask that they set out their position on the issues and what evidence they are relying on to support their position. I also want to know if any demands or offers have been made. They are also asked to tell me what they believe would be a fair settlement. Counsel is advised that they need not copy this to the other side. Again, I feel this is permissible as they are not my cases.
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    • What documents, if any, must accompany the memorandum?

      If this is a "regular" session, I need the evidence they will be relying on in the underlying litigation. If those documents have already been provided to the judge who is hearing the matter, they do not need to send me copies. I will get the file from the judge hearing the case if it is assigned to the Pittsburgh office. If it is assigned somewhere else, I will work something out. Either the judge can send me copies, or the parties can.
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    • How far in advance of the mediation must the parties submit the memorandum and accompanying documents?

      I generally require that I receive everything at least one week before the scheduled session.
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  12. Do you conduct a pre-mediation conference? If so, please describe what takes place at that conference.

    No.
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  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?

    I prefer to have everyone there, including the adjuster. However, I will conduct sessions without certain parties if there is a good excuse why they cannot be present. On the "special" sessions, the cases have been from outside offices, and the claimant would be required to travel a great distance. In those cases, I have allowed just the attorney to be at the session, as long as claimant understands they must be available during the time the session is scheduled. In most cases, the adjuster will not be there, and that is permitted. Again, they must be available if we need them during the session.
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  16. Once you receive a mediation request, what is the usual amount of time elapsed until the mediation takes place?

    I try to get these scheduled within four weeks. This allows the parties to get their memos together, and also allows time for me to review the file.
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  18. Describe generally how you conduct a mediation session.

     
    • Describe each step of the process.

      I generally start by bringing the parties together in the biggest room available to me that day. I explain the general process we will be following that day. I explain to the claimant that anything that is said that day remains within that room, unless they want it conveyed to the other side, or the judge hearing the case. I also explain that as the session goes on, I may want to speak alone to one side or the other. I also may wish to speak to just the attorneys or just the claimant. I let the claimant know that I will not be speaking to the judge who is going to be deciding his case if we are unable to settle. I also tell the claimant that many in the system feel frustrated, and if he or she needs to vent on someone involved with the system, he can do so within reason. After a discussion of the general issues, such as injury date and type, average weekly wage, and current status of the case, I will then start discussing matters with each side. How things proceed after that depends on how those discussions go. I really do not have one game plan that I could set forth. I basically try to get the parties to bring themselves closer to an agreement, step by step.
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    • 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 would have to say a mixed approach, but I have found that within our system, it is weighted toward the evaluative side.
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  19. Are you willing to conduct more than one session per claim?

    Yes, if I think it would be productive. If I feel the parties are not really interested in reaching a settlement, but might just be looking for an “advisory” opinion based on their evidence, then the sessions are over.
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  21. Is there anything else the parties should know or do in advance of the mediation?

    Counsel should prepare their clients for these sessions. They should understand what the session is for, and if that is not the goal they wish to achieve, then this is not the route for them. Other than that, participants should be on time.
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