Posted on Wednesday, December 7th, 2016 at 2:00 pm
Settlement rates at IC mediation conferences have historically been at or above 70%.
Under the automatic referral procedures commenced during the 1996-97 fiscal year, whenever a party files a request for hearing in a workers’ compensation claim, the Clerk’s Office sends an Order for Mediated Settlement Conference to all parties along with the Commission’s acknowledgment letter.
The only cases that are not automatically referred to mediation are claims against the state brought by prison inmates, which are excluded by law, expedited medical motions and administrative appeals.
Cases involving injured workers who are not represented by counsel are generally mediated only if all parties agree to mediate
Cases involving non-insured employers are generally mediated only if all parties agree to mediate and the Deputy Commissioner responsible for the adjudication of non-insured cases approves the parties’ request to refer such cases to mediation.
The parties have the right to select a mediator certified by the Dispute Resolution Commission on their own and may do so within the time periods specified by the ICSMC Rules. If the parties do not have a specific mediator in mind, they can select one from a list of mediators available on the Commission’s web site or from the Dispute Resolution Coordinator’s office. Our office has our ‘favorites’ who we feel do a good job for our clients and will typically select those mediators if we can, barring some major objection from the defense.
To be appointed by the Industrial Commission, a mediator must be certified by the North Carolina Dispute Resolution Commission to mediate cases in North Carolina’s Superior Courts through the court’s mediated settlement conference program. The mediator also must have a Declaration of Interest and Qualifications form on file with the Commission. The declaration must state that the mediator, if an attorney, is a member in good standing of the North Carolina State Bar; that the declarant agrees to accept and perform mediations of disputes before the Commission with reasonable frequency when called upon for the fees and at the rates of payment specified by the Commission.
After a mediation conference is scheduled to convene on a specific date, it may not be postponed unless the requesting party first notifies all other parties of the grounds for the requested postponement, or without the consent and approval of the mediator or the Dispute Resolution Coordinator.
Generally, the worker and the employer split the mediator’s fee though sometimes payment of the fee can be adjusted as part of any overall settlement.
All mediators must adhere to the Standards of Professional Conduct for Mediators adopted by the North Carolina Dispute Resolution Commission.
Motions related to the ICMSC (Industrial Commission Mediated Settlement Conference) Rules should always be addressed to the Dispute Resolution Coordinator, but all other motions should be addressed to the Industrial Commission’s Executive Secretary, unless the case has already been assigned to a Deputy Commissioner or a Full Commission panel, or the motion is otherwise subject to the Commission’s expedited medical motions procedures.
An experienced North Carolina workers’ compensation lawyer will prepare your case for mediation by making sure all the appropriate medical reports, bills, and future cost estimates are available. The attorney should also have ready any vocational reports or other documents. Additionally, the attorney will review what happens at the mediation, and what the worker’s negotiating points are in advance, and the best way for the injured worker to conduct him or herself at the mediation. The employee is not required to speak or testify at the mediation. With an experienced work injury attorney, such as Joe Miller, the mediation should run smoothly with minimal surprises.
Mediation is an attempt to resolve a dispute. If either party does not think the mediator is working towards a fair resolution, the party (including the employee) can request a full hearing. The worker, or the worker’s lawyer, may also seek to have a clearly biased mediator disqualified and request that a new fair mediator be appointed.
Generally, no. The parties should be prepared to discuss all the relevant issues at the assigned mediation. If any issues cannot be resolved, then the mediator will report that there was an impasse and the case will then proceed to a hearing before a North Carolina worker’s compensation Deputy Commissioner.
It varies. Some mediations can take a very short time – less than an hour. Usually those are the ones that do not settle. Most mediations several hours to make sure all the issues are addressed and all the details are addressed. A lot of mediation comes down to getting the math right – making sure all the future medical bills and all the lost wages are addressed. Other issues such as discounts for lump sum payments and any moneys that might be owed to other government agencies who advanced money may also need to be finalized. Once an agreement is reached, you can’t reopen the process. So, it is important to be prepared and get all the details right. That is also a big advantage in North Carolina. If an agreement is reached, the Mediator will draw it up on a special form. That form carries the weight of a Court Order. This is so that if anything should ever happen to the injured worker, the money is still required to be paid on the claim by the insurance company. That’s a major reason for hiring a North Carolina workers’ compensation lawyer who has successfully negotiated many mediations.
The mediation topics are going to vary depending on whether the claim is accepted or denied. We obviously prefer to mediate accepted claims, as we are in a stronger position. This is because the employer and insurance company have obligated themselves to pay the injured worker on an ongoing basis and cover the ongoing medical bills. Therefore, the only issues typically will relate to the degree of impairment of the worker and his or her ability to return to work, as well as future medicals.
When the claim is denied, them many more issues may come into play, just as they would at a hearing. Some common mediation topics are:
Many other issues get discussed. Your North Carolina work injury lawyers will address all the ones that apply to your situation.
Mediation is a negotiation. The employer and the employer’s insurance company will have an experienced attorney fighting for them. You need a North Carolina work injury lawyer who understands mediation and has a track-record of success, with a team behind him that knows how to put you in the best position to successfully resolve your claim at mediation. Attorney Joe Miller, Esq. has been helping injured workers for over a quarter century get justice. He will fight to get you every dollar you deserve and will only work towards a settlement when you know your medical condition. Call now at (888) 694-1671 to get answers to your questions. You can also fill out my contact form to make an appointment.