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Workers' Compensation Judges' Mediation Procedures

Michael E. Koll

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Office: Clearfield District: Western

  1. Please list the offices at which you will mediate a claim.
    Mediations for Cameron, Clearfield, Elk, McKean, and Potter counties are typically held in the Clearfield office. Schedule permitting, and with the approval of the assigned judge, I have held mediations for other offices. Such are normally conducted at the Clearfield office, but on occasion are held at other available locations.

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

  3. Are you willing to mediate claims in which one or both parties are not represented by counsel?
    I do not recall having specifically done such, as of 7/28/04, but depending upon the individual circumstances, I would not foreclose the possibility.

  4. Do you require the parties to execute an agreement to mediate? If so, please describe briefly the matters addressed by the agreement.
    No, but counsel are provided with a standard scheduling letter, indicating the potential need for ex parte communications between counsel and myself occurring, limited solely to the Settlement Conference Disclosure Report, and communications relating to the mediation. If any party has any objections to so proceeding, such objections are to be raised immediately.

  5. How much time do you typically allow for a mediation session?
    Although hoping not to require such, typically an entire morning or afternoon will be set aside for each mediation.

  6. Do you require the parties to submit a pre-mediation memorandum? If so:

    • What information must be contained in the memorandum?
      With the mediation scheduling letter, counsel are provided a form "Settlement Conference Disclosure Report" to be completed and returned at least seven days prior to the mediation. The letter requests information regarding whether settlement negotiations have occurred, and if not why not, or if so, the present results. Counsel are also to provide their analysis of the merits of the case; perceived strengths and weakness of each party's case; factors or issues viewed as impediments to reaching a negotiated settlement; whether they believe a negotiated settlement is possible; an outline of that party's settlement proposal, ranked numerically in order of importance; a listing of which parts of such proposal are negotiable, and which are not; and the vehicle by which settlement is to be documented (i.e., C&R/stipulated decision/Bureau filings).

    • What documents, if any, must accompany the memorandum?
      No additional documents must be filed.

    • How far in advance of the mediation must the parties submit the memorandum and accompanying documents?
      Seven days.

  7. Do you conduct a pre-mediation conference? If so, please describe what takes place at that conference.
    Not formally. Although, at the request of counsel, or on occasion sua sponte but with the agreement of counsel, such manner of informal discussions may arise in the context, and at the time of, regularly scheduled hearings.

  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?
    Counsel are strongly urged to have all parties, including any claims adjusters or individuals with settlement authority, present. If such is not possible, individuals with settlement authority must be available by telephone during the time period the mediation is scheduled to occur.

  9. Once you receive a mediation request, what is the usual amount of time elapsed until the mediation takes place?
    Typically, following a request, counsel are provided with a list of available dates from which to choose. Consistently, barring conflicts with counsels’ schedules, the mediation occurs within thirty days, frequently earlier.

  10. Describe generally how you conduct a mediation session.

    • Describe each step of the process.
      I try to conduct such in a fairly informal free flowing nature. Counsel and the parties are brought into the hearing room, where I sit down at the same table with them, answer any questions, and further explain to them the nature of the mediation process. I attempt to elicit information as to the status of any prior negotiations, any roadblocks arising, and general information such as outstanding liens/costs/ ongoing medical costs and the like which may likely have to be addressed as part of any potential resolution, which may not have been fully addressed in the pre-mediation submission.

      I will attempt to elicit discussion between counsel and their clients as to proposals either past or potential in the future. Usually relatively quickly thereafter, I will then break off with one side or the other, in order that such party may feel more at ease in disclosing authority, priorities of demands and the like. Attempting to avoid actual discussion of the merits of any underlying petitions, I will point out best case/worst case scenarios, in an attempt to enable the parties to understand the parameters of how the other party may be viewing the case, and to enable them to establish their own reasonable parameters, which may ultimately fall within the other party’s parameters. Without setting dollar amounts, I may also suggest alternative potential solutions to a global resolution, if it appears that negotiations are breaking down. Typically, I will attempt to obtain modified demands/offers from each, passing such along between the parties as authorized, until hopefully a resolution is reached.

    • 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.
      Facilitative, particularly on the cases assigned to me. I may involve some mixed approach, when I can openly acknowledge not having reviewed or had access as yet to the medical evidence, or if the case is not assigned to me. But even under such circumstances, I openly advise the parties that I am doing so in a "Devil's Advocate's" role, to highlight matters they may not have considered, or indicate why the other party may not be as receptive to a particular proposal. I strongly avoid attempting to provide, either directly or indirectly, my own opinion as to a value for settlement.

  11. Are you willing to conduct more than one session per claim?

  12. Is there anything else the parties should know or do in advance of the mediation?
    The biggest impediment to a successful mediation that I have seen is when counsel have not spent enough time in advance with their respective clients, advising them as to the highs and lows/pros and cons of a potential resolution, as well as obtaining as detailed information as possible on outstanding liens/ongoing medical costs and like matters which may impede resolution. Counsel should be in a position, prior to the mediation, of knowing their client's bottom line. Personal meetings or telephone discussions between counsel, as opposed to simply exchanging demand/offer correspondence with each other prior to the mediation, can also have a very valuable impact upon the process.