Alternative dispute resolution provides a voluntary option for settling a workers’ compensation claim without a hearing. The Virginia Workers’ Compensation Commission ADR program includes mediation, which is a common type of alternative dispute resolution in civil matters. While mediation in a workers’ compensation case sometimes can be beneficial, you should never agree to submit your claim to ADR before talking with an experienced workers’ compensation attorney.
Mediation is defined in Virginia law as “a process in which a mediator facilitates communication between the parties and, without deciding the issues or imposing a solution on the parties, enables them to understand and to reach a mutually agreeable resolution to their dispute.” The mediator is a neutral third party who assists in discussions between the parties , in order to identify areas for potential resolution or settlement in the case.
If you have a workers’ comp claim, ADR is completely voluntary. You are not required to agree to it, and both parties must agree for it to occur. A mediation session is not a hearing — the mediator does not decide issues for the parties. The mediator’s role is solely to facilitate discussions between the parties and endeavor to find mutually agreeable resolutions. Even if you agree to it, you do not need to accept the results that come out of the session.
The Virginia Workers’ Compensation Commission provides ADR services at no cost to the parties. The Commission offers both issue mediation, which resolves only specifically identified issues in a claim, as well as full and final mediation for reaching a compromise settlement. Representation by legal counsel is not required for issue mediation. It is required for a full and final mediation.
Instead of using the Commission’s ADR process, the parties can agree to use a private mediator who charges for their services. In that case, the parties agree on how the mediator is paid.
In some cases, the deputy commissioner assigned to your case may recommend ADR. The insurance company also may suggest it. However, you should never agree to ADR in your workers’ compensation case before you discuss your claim with a knowledgeable workers’ comp attorney. You also should always be represented by a lawyer in the ADR process, even if it is not required.
Mediation can be beneficial in some cases. It may result in more expeditious negotiation of a settlement agreement and avoid the time and stress of going through a hearing. Whether it advisable in a particular case depends entirely on all the facts and circumstances relating to the claim, which is one important reason to discuss your claim with a lawyer before you even consider agreeing to ADR.
Mediation is not formal like a hearing. But it does provide you and your lawyer with the opportunity to present the elements of your case to the insurance company. They also give you and your lawyer insight into the insurance company’s position on your claim. Through the facilitated back-and-forth discussions, both parties can discover whether there is a basis for reaching a mutually agreeable resolution. Even if the session is not completely successful, mediation can put the case in a better position going forward than it was previously.
You completely control the outcome of a mediation, because you are not required to agree to terms proposed by the insurance company or accept suggestions from the mediator. However, any agreements that are reached in the process must be submitted to the Commission for approval, even if only some issues in the case are resolved. If the parties do not resolve the case in mediation, it proceeds through the normal process to a hearing.
The discussion above addresses what you should do if ADR is recommended in your case or if you’re considering it on your own initiative. This advice is so important that we are willing to risk repeating it one too many times: If you have a workers’ comp claim, you should never agree to mediation before you talk with an experienced workers’ compensation lawyer. While ADR can be beneficial in some cases, it is not the best strategy for every Virginia workers’ compensation claim. Your lawyer helps you determine whether it would be a good strategy for your case.
At the Richmond law firm of Renfro & Renfro, our dedicated workers’ compensation lawyers help clients with all types of Virginia workers’ comp claims, including claims that go through the ADR process. We welcome you to contact us for a free consultation.