The Virginia Workers’ Compensation Commission offers free mediation and alternative dispute resolution services. We’ve found these services are great for helping our clients obtain their goals. We often use them to help our clients negotiate fair and reasonable Virginia workers compensation settlements that cover their future wage loss, permanent disability, and medical treatment.

This articles talks about workers compensation mediations and how you can use alternative dispute resolution to protect your legal rights and resolve your VA work comp claim. If you have a question that isn’t answered by our article, call or email us to get the answer you need.

What is Mediation?

Let’s start with a definition. Black’s Law Dictionary defines mediation as a:

Private, informal dispute resolution process in which a neutral third person, the mediator, helps disputing parties to reach an agreement. The mediation has no power to impose a decision on the parties.

Mediation is a type of assisted negotiation. When they mediate, the parties to a workers’ compensation claim – the employer, the insurance company, and the injured worker – attempt to reach a resolution of the claim or disputed issue with the help of a third-party who does not have the power to force a decision. It is possible to mediate almost any type of case, including personal injury actions, medical malpractice claims, suits for wrongful death, and claims for long term disability insurance benefits.

There are certain characteristics to look for before deciding to mediate. A quality workers compensation mediation process will have the following qualities:

  • Voluntary: The parties must agree to the process. Anyone can leave the mediation conference for any reason, or no reason at all. The process is not binding. This allows the parties the freedom to look out for themselves. You get to make the decisions.
  • Confidential: A workers compensation settlement mediation must be confidential to work. You want to be able to discuss the strengths and weaknesses of your case without repercussion. Discussions held and materials used during the conference are not admissible in court or in any proceeding before the commission. There are a few exceptions: 1) if someone threatens bodily harm to another participant and 2) any documents stating that the mediation took place and whether the parties reached a resolution. It is rare for the first exception to apply to a workers’ comp conference.
  • An experienced, knowledgeable, and impartial mediator: The mediator must remain neutral and treat the parties equally. She cannot favor one side over the other, but should not be afraid to tell one side that they are being unreasonable if it is true. To do so, however, the mediator must have knowledge of the underlying case law and proceedings.
  • Collaborative: Mediation works only if the injured employee, the employer, and the work comp claims adjuster are motivated to work toward resolving the disputed issues. If someone doesn’t want to be there, or is not interested in resolving the claim, the mediation will fail. Only participate if you are interested in getting a result. You will be more invested in the process and more pleased with the outcome. Don’t waste your time unless you’re serious about the process.
  • Quality Legal Representation: You should retain a workers compensation lawyer to represent your interests at the mediation conference. Your attorney can argue the nuances of your case and make sure the agreement is in your best interests if one is reached. As discussed below, you must have counsel to participate in the commission’s full and final mediation style.

Virginia Workers Compensation Mediation Process

Our court systems are crowded. For example there is a one million claim back log for Social Security Disability cases. It takes years for most claimants to get a resolution of their case. Though the Virginia workers compensation system isn’t as crowded, it still takes a long time to get a hearing on claims. And every day you have to wait matters when you’re injured and do not have any sources of income. You want and need a fair resolution – fast.

To reduce this backlog and make the workers’ comp system more efficient, the commission has established an Alternative Dispute Resolution (ADR) department whose goal is to facilitate the exchange of information between the parties and resolve disputes without litigation. The ADR department has more than fifteen mediators conducting mediations at nine locations across Virginia. The ADR program has been successful.

In workers comp claims the purpose of mediation is to identify the issues in dispute, clarify any misunderstandings the parties may have that are preventing resolution, explore and discuss possible solutions, and mediate an agreement.

Below are answers to common questions about workers’ comp mediations in Virginia.

Who can request mediation?

Any party to a claim may request mediation through the Virginia Workers’ Compensation Commission. Usually the attorneys for both parties will speak and discuss whether they think mediation is a good idea for their clients. If so, then one of the attorneys will file a formal request for mediation using WebFile.

A hearing on my claim is scheduled but I want to mediate. What do I do?

You may have to wait three to four months for an available mediation conference. If your case is set for hearing before your scheduled mediation, you should ask the deputy commissioner assigned to your case for a continuance. Continuances are granted at the deputy commissioner’s decision. In our experience deputy commissioners will continue a hearing so that the parties can try to resolve the claim through mediation. This frees up the deputy commissioner’s case load – something most welcome.

What happens if the parties do not reach a settlement agreement at mediation?

This happens sometimes. Mediation is voluntary. You do not have to accept a deal. You still have the right to a hearing before the commission if mediation is unsuccessful. If the parties are close to settlement, but not quite there, you may also schedule a follow-up mediation conference.

How much does mediation cost?

Mediation services through the commission are free. If you hire a private mediator, you may have to split the cost with the other parties. Usually mediators charge by the hour.

Who chooses the mediator?
What are the benefits of workers compensation mediation?

There are several benefits to trying to mediate your VA work comp claim:

  • The mediator, who is an experienced judge and attorney, can help the parties understand the issues in dispute, explain how they would apply the law to the facts if they were presiding over the case, and give their opinion on how another judge would decide the case.
  • Often mediation allows the parties to reach a resolution and settlement more quickly than the traditional litigation process, which can drag on for years.
  • The parties can resolve their problems in private, rather than in a public courtroom.
  • The parties and neutral mediator can present creative approaches to resolving the disputed issues – solutions that are not allowed in the courtroom.
  • The parties get to have a say in how the dispute is resolved, rather than having to leave everything up to a judge, jury, or appellate court.
What exactly happens at a Virginia Workers’ Compensation Commission mediation?

First, the parties will meet in a conference room. Each side will give a summary of the issues in dispute and their position on those disputes. This will allow the mediator to understand what is going on. I usually provide a pre-mediation brief that lays out the facts, procedural history, and our arguments.

Next, the parties will split into separate conference rooms. The mediator will go back and forth between the parties and try to identify areas of agreement and ways to negotiate agreement. If the parties are able to reach a final agreement, the mediator will help the parties lay out the final settlement terms.

Are there different types of work comp mediations?

Yes. The commission offers two types: issue mediation and full and final mediation.

Issue mediation can take place in person or by telephone. They are scheduled for 90 minutes, though they usually are shorter.

The following disputes are usually handled through issue mediation:.

  • Medical treatment
  • Unpaid medical bills
  • The correct average weekly wage
  • Mileage reimbursement
  • Cost of living adjustments
  • Closed periods of wage loss benefits
  • Appropriate temporary partial disability rates
  • Vocational rehabilitation

The second type of mediation is called full and final mediation. You must be represented by a workers compensation attorney if you want to participate in full and final mediation. The goal of these mediations is to settle the entire claim. They are scheduled for three hours, but you may request additional time.

Will the mediator tell the parties how much the case is worth?

Either party can ask the mediator to provide a reasonable settlement range. This range is not binding, but it can help the parties determine whether they are acting reasonably. Most mediators will not provide a settlement range until the end of the conference because they want to hear the parties make their arguments over the course of the three-hour mediation. This is called an evaluative approach – and it is not binding.

An Experienced Richmond Workers Comp Attorney Can Help You Get a Top Dollar Settlement at Mediation

At mediation you will have to make some difficult decisions. Decisions that will affect you and your family for years. Get an experienced attorney in your corner to make sure you make the right decisions for you and your family. Call or email us now. We’re here to answer your questions and help you in your time of need.