What to Expect at a Workers Compensation Mediation in Virginia


We Use Mediation to Negotiate Workers Compensation Settlements for Injured Employees


The Virginia Workers Compensation Commission offers free mediation services to injured workers, employers, and insurance companies. We have found that workers compensation mediation is a great way to help our clients reach their goals. We use mediation to help injured employees and their families negotiate fair and reasonable Virginia workers compensation settlements that cover past and future wage loss, permanent partial disability, and the need for medical treatment.


This article explains what to expect at a your Virginia workers compensation mediation and how you can use this form of alternative dispute resolution to protect your legal rights and obtain financial stability for your family. After reading this article you will know the answers to the following questions:


  • What is a workers’ compensation mediation?
  • Is it mandatory that I mediate my workers’ compensation case in Virginia?
  • Who will serve as the mediator?
  • What is the mediator’s role in a workers’ compensation mediation?
  • How much does it cost to have a mediation?
  • What are the characteristics of a good workers’ compensation mediation?
  • What happens at the workers’ compensation mediation?
  • What if we don’t reach an agreement at the mediation?
  • How can I increase the likelihood that we reach a settlement at the workers’ compensation mediation?
  • What are the benefits of a workers’ compensation mediation?


Whether you need help filing a workers compensation claim or negotiating a settlement, workers compensation lawyer Corey Pollard is here to help injured workers throughout Virginia. Call, text, or email us for a free consultation.


What is a Workers Compensation 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.


Is Mediation Mandatory in Virginia Workers Compensation Cases?


No. Mediation is voluntary in Virginia workers compensation. Either party can request mediation through the Commission.


The deputy commissioner assigned to your case may recommend that the parties try to mediate the case. But this recommendation is not binding.


Usually attorneys for the parties will discuss whether the case is ready for mediation before requesting the Commission’s services.


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.


Who is the Mediator?


The parties decide who will serve as mediator. You should make sure that your mediator has the experience, training, qualifications, and temperament to help resolve your claim. Workers compensation claims are highly technical. You want a mediator who has handled workers compensation claims in the past and who understands the law’s nuances.


When we use the commission’s mediation service, we always request a current or retired judge. These are former workers comp attorneys who represented injured employees and employers before becoming judges. They know the law. And many of the available mediators still hear cases. This gives you insight into how the judge assigned to your case may rule, and you can adjuster your settlement strategy based on what you learn.


The judge who serves as the mediator is not allowed to preside over your case if a hearing is necessary on the disputed issues.


What is the Mediator’s Role in Your Workplace Injury Case?


The mediator’s role is to help the parties settle the case. The mediator is not there to tell you whether an offer is fair, whether you will win your case at trial, or to tell you how good of a case you have.


The mediator should help the parties find common ground


Unless both parties specifically ask for an exact assessment and valuation of the case, the mediator should not focus on deciding what is fair. That is the judge’s role if the case doesn’t settle. The mediator should instead focus on finding a number that both parties can agree on based on the facts as they exist at the time of the mediation. The mediator will not serve as an advocate for your case when talking with the defendants.


The mediator should point out the weaknesses in your case


After listening to you and the defendants, the mediator will point out the weaknesses in your case and the risks of going to hearing. He or she will tell the defendants the same thing. A good mediator will not sugar coat things for either side and will provide a realistic assessment of what could happen if the parties put their case in the hands of a judge.


How Much Does Mediation Cost?


Mediation with the Virginia Workers’ Compensation Commission is free. The Commission will not charge you for using its services.


If the parties decide to hire a private workers compensation mediator, you may have to split the cost with the employer and the insurance companies. Usually mediators charge by the hour.


What are Characteristics of a Good Workers Compensation Mediation?


There are certain characteristics to look for before deciding to mediate your case. 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.


What Happens at the Virginia Workers Compensation Mediation?


The goal of mediation is to put the parties to a claim together with a neutral party in the middle to help identify the issues in dispute, clarify any misunderstandings between the parties that may be preventing resolution, explore and discuss possible solutions to the disputed issues, and mediate an agreement.


Usually the injured worker and his or her attorney will attend the mediation along with the mediator and the attorney for the employer’s insurance company. Usually a representative from the employer or insurance company will attend the mediation – either in person or by phone.


Before the workers’ compensation mediation, the attorneys may submit memorandums or briefs to the judge so that the judge understands the parties’ positions.


At mediation the judge will meet with each side privately to discuss the strengths and weaknesses of the claim, its value, and whether a compromise can be worked out. The judge will attempt to find out the deal breakers.


If the parties ask, most judges will provide their assessment of how much the case is worth. This is rarely done at the beginning. Most judges want to hear from the parties and try to work out an agreement before giving their opinion on a fair value for the case. And most judges provide a settlement range, not a specific value, when asked to evaluate the case at mediation.


If the parties reach an agreement, then the mediator will bring the sides back together in the same room to make sure everyone is clear on the agreement and the next steps to get the settlement finalized.


What if We Don’t Reach an Agreement at Mediation?


This happens sometimes. Mediation is voluntary. You do not have to accept a deal. Or you may resolve some, but not all, of the disputed issues.


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.


The workers compensation judge who is serving as the mediator will report to the judge assigned to the case. The report is simple and does not contain details. It simply states whether the parties reached an agreement at mediation.


How Can I Increase the Likelihood of Having a Successful Workers’ Compensation Mediation?


You can increase the likelihood of reaching a successful resolution at your workers compensation mediation by giving the mediator facts he or she can take to the other side to keep them moving toward a reasonable settlement figure.


Before mediation you should make a list of all supportive facts. Each of these facts should serve to move the defendants toward a higher settlement figure during each round of negotiation. Discuss how you were in good physical shape prior to the injury and had not experienced problems with the injured body part in the months before the accident. Discuss how your doctors have related your symptoms to the work injury. Discuss how your doctors have limited the type of work you’re capable of doing because of the injury. And discuss how you will have difficulty returning to your pre-injury work because of your permanent limitations. Each of these facts can help you negotiate a better settlement at mediation.


What are the Benefits of Workers Compensation Mediation in Virginia?


There are several benefits to trying to mediate your workers comp claim in Virginia:


  • 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.


An Experienced Workers Compensation Lawyer to Handle Mediation of Your Claim and Get a Top-Dollar Settlement


At the workers compensation 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 Corey Pollard now. We’re here to answer your questions and to help you in your time of need.