Rules for the Mediation of Low Indemnity
Workers' Compensation Claims

September 20, 1995

Minutes of the N.C. Industrial Commission

Adoption of Rules for the Mediation
of Low Indemnity Workers' Compensation Claims

Pursuant to the authority vested in the Commission by NCGS 97-80(c) to "determine the manner in which payment of the costs of the mediated settlement conference is assessed", the Commission hereby adopts the attached Rules for the Mediation of Low Indemnity Workers' Compensation Claims, which provides for the use of grant funds to pay the costs of mediation in those cases designated by the Commission as low indemnity cases.

J. HOWARD BUNN, JR	J. RANDOLPH WARD	COY M. VANCE

DIANNE C. SELLERS	THOMAS J. BOLCH  	BERNADINE S. BALLANCE

Rules for the Mediation of Low Indemnity Workers' Compensation Claims

In an effort to effectively and efficiently implement the use of mediated settlement conference in Workers' Compensation Claims, the Commission has been screening cases before ordering them to mediation. The review is to make certain that at issue in the case is at least $2000.00 in indemnity payment to the claimant. This screening is not required by the Rules for Mediated Settlement Conference, adopted by the Commission on July 29, 1994. However, it is being used to prevent a claimant, who cannot under any circumstances receive a significant indemnity award, from having to pay a several hundred dollar mediator's fee.

The argument can be made, and has been by at least one writer, that these "small" cases may in fact be the best candidates for a simple expedited procedure such as mediation. To investigate this possibility, the Commission was granted funds by the IOLTA Board of Trustees out of which mediators could be paid for handling these cases in which the claimant is asserting a claim for under $2000.00 of indemnity.

In addition, the Commission will try to determine if allowing parties to attend a mediated settlement conference by telephone can be effective. Nationally, a concern in most court related mediation programs is the logistical burden of bring all the parties together. The cost of getting the parties together could be particularly disproportionate in cases where the amounts in controversy are relatively small. Therefore, the Commission will give mediators the discretion to conduct any or all of the mediation in Low Indemnity cases by telephone in order to see if relaxed attendance requirements effect the discussion of issues and settlement of cases.

To implement this pilot program, the Commission adopts these Rules for the Mediation of Low Indemnity Workers' Compensation Claims.

1. In cases which are determined by the Commission to meet the designation of Low Indemnity Case, as set forth below, the Commission may order the parties to participate in a mediated settlement conference, conducted by a mediator whose fees shall be paid from funds held by the Commission for that purpose.
2. A Low Indemnity Case shall be defined as a Workers' Compensation claim in which the claimant asserts or the Commission determines after a review of the file that the total indemnity claim being made by the claimant and which could be awarded by the Commission to the claimant is no more than $2000.00. Such determination by the Commission is in no way binding on the parties or Commission and shall not limit any subsequent settlement or award as may be otherwise allowed by law.
3. The mediator's fee shall be paid by the Commission, out of funds held for such purpose and only to the extent such funds are available, in a case designated by the Commission as a Low Indemnity Case and in which the Commission has entered an Order indicating that the Commission will make such payment. Payment to the mediator will be made upon the delivery to the Commission of the completed, signed Mediator's Report, containing a statement of the time spent in mediation, the total fee for the mediation, and a simple verification signed by the attorney or other representative of each party that the Mediator's Fee statement accurately reflects the time spent in mediation.
4. To further enhance efficiency and flexibility, the mediator in cases designated as Low Indemnity Cases, may conduct any or all of the mediation process by telephone, or may allow any or all parties to attend a mediated settlement conference by telephone, conference call or speaker telephone, provided that the person(s) so attending shall bear all costs of such telephone calls.