by Frank C. Laney, Mediation Coordinator, NC Industrial Commission
The Mediated Settlement Conference program of the North Carolina Industrial Commission is a relatively new program, so people have questions about its operation and procedures. I will try to lay out in as much detail as possible the life of a mediated case, as we are currently managing the program.
In the first week of each month, I send out orders in about 100-125 cases, requiring the parties to attend a mediated settlement conference. During the previous month I collect cases that are brought to my attention via a Consent Order for mediation, a Petition, or a simple letter requesting that I consider a particular case. If a party brings a case to my attention, I will always order it to mediation unless that opposing party objects or I determine the case to be inappropriate. Therefore, any letter (or a copy of it) that comes into the Commission that mentions mediation in any way should be brought to my attention.
To get the rest of the cases needed to make 125, I randomly select them from the cases that are pending on the hearing docket. During the night after the first work day of each month, the SIPS computer generates a list of all cases in which:
This yields a list of about 1000 cases or more in which mediation can be carried out without delaying a hearing before a Deputy Commissioner, should a hearing be necessary. The cases are listed by insurance carrier. I then select every tenth or thirteenth case, or what ever number will give me about 150 to screen. In this manner the cases are evenly spread between the carriers, with each carrier getting roughly the same proportion of the mediated cases as they have of the cases on the hearing docket. Screened out at this time are all cases in which the employer is uninsured, as those cases may involve a penalty, and are not appropriate for mediation.
Once I select the files I will be considering for mediation, Cindy Shockley, my paralegal and I fill out the file request cards and get them to the file room about late morning on the second workday of the month. That afternoon I start getting the files from the file room. I review them, looking for several things. I try to determine what the claimant would win if the claimant gets everything s/he is seeking. If the total claim is not worth at least $2000 to the claimant, it is screened out of mediation as being too small. This lower limit is used because the Commission currently feels that it is unfair to require a claimant, who often has no income or only their disability payments, to pay a share of the mediator's fee if the claimant is not going to realize any personal financial benefit from the case. Some of those screened out are cases where the sole issue is a medical payment to the doctor, and occupational diseases when there is a dispute as to who all of the defendants are.
Under a two year IOLTA grant funded program, these small cases may still be referred to a mediator, with the mediator's fee being paid out of the grant funds.
While I am doing the review, Cindy is entering the file numbers into an Excel spreadsheet, which is E-mailed to Chet at SIPS. That evening, he runs a program which downloads the relevant data for the cases we have selected for review. This data is then loaded the next day into our FileMaker Pro mediation database. This simplifies the process of entering the names of the parties and their attorneys, plus addresses, telephone and fax numbers. This data entry used to take two days and is now done in under one. Cindy begins the data entry on the third workday of the month and generally is finished by the morning of the fourth.
The afternoon of the fourth work day, I take the data from Cindy and merge it into the Order form, also creating envelopes. The computer prints the front side of each order, which has the specific case data on it. I then photo copy onto the back of each Order the second page, including my signature. Once the Orders are complete, I then make two additional two-sided copies to be mailed to the parties. One copy goes into the case files, which are then returned to the file room. Therefore, I keep the files for cases which I order to mediation for only a few days at the beginning of the month, and otherwise, I rarely have any files checked out to me. There is a status code that is put in the SIPS computer to indicate that the case has been ordered to mediation and the month in which the order was entered. This status code remains "Laney 102" until someone else pulls the cases for setting on a calendar or it is settled. The status code on all mediation cases remain status code 102, which should be treated the same as a status code 100, (not set, available for hearing), as mediation is not to delay the setting of a case for hearing.
The other two copies of the order are mailed to the parties or their representatives. The orders are assembled and mailed on the fifth or sixth workday, assuming no problems. I no longer mail lists of mediators to all parties, as it is a substantial cost and use of paper. Copies of the list are always available by contacting me with your name and address, or, it may be downloaded from the Commission's internet bulletin board or its new World Wide Web site. Also, sending copies of the rules with each order is redundant in many cases, so I have copies of the rules that I will mail to any person upon request..
Once the Order for mediation has been entered, the parties have 21 days to select a mediator of their choice. From the beginning, about half the mediators have been chosen by the parties. We hope the selection rate may go up to nearly 90% as attorneys become familiar with the process. The parties may choose a mediator from the list that the Commission provides to them, or they may choose any other person that has some minimal experience or training that qualifies them to help settle the case. The minimum training standard would be met by any attorney or mediator with at least 20 hours of training. If the parties agree to use a particular person as a mediator, it is unlikely that the Commission is going to deny the request. If the parties cannot decide on a mediator in the specified time, but desire to choose one, then one party should write a brief letter to me asking for an extension of time to select a mediator, saying how long it will take to choose one, and send a copy to the other side. If the other side does not object, the motion will be granted. But if I am not informed of the parties choice and no one asks for more time, at about the end of the month (21 days after the Order, plus a day or two for the mail) I will appoint a mediator.
After I have appointed a mediator, I will consider a request to change mediators. This is an effort to make the program as user friendly as possible. But, it is important that the parties do designate the mediator that they have selected in a timely fashion, as the unappointments are a significant waste of Commission time and resources, as well as being unfair to the unappointed mediator who may have already started trying to schedule the conference. Therefore I usually expect the requesting party to notify the mediator immediately of the pending request for change of mediator and I will require compensation of mediators who have already spent time on the case.
In the mediator selection process, the parties should contact the mediator first to determine if that mediator is in fact available and willing to mediate that particular case. The mediator may not have any time available, may have a conflict of interest or may not feel comfortable with that particular case. Also, a selected mediator may negotiate for a fee different from the one set by the Commission for appointed mediators. Several mediators on our list regularly charge more than the standard $100 per hour fee. So it would be best for the parties to check with them before making a selection. If this process takes more than the allotted 21 days, please request an extension of time.
The mediators are appointed from the appointment list, with each mediator getting one appointed case before the list is recycled. However, due to an abundance of mediators in the Raleigh area and an abundance of cases in Charlotte, mediators who have indicated a willingness to travel will be given more of the Charlotte and other far flung cases. Within these restrictions, I match mediators with cases that are as close to their homes as possible.
The mediator may charge whatever fee is negotiated between the mediator and the parties if the parties select the mediator. If the mediator is appointed, the Commission will order the same fee as the Superior Court: $100 per hour, to be billed in quarter hour segments or any part of a quarter hour. So if the mediation runs from 1:00 PM to 3:20, then the mediators hourly fee would be $200 for the two hours, $25 for a quarter hour and another $25 for the part of a quarter hour. In addition there is a $100 administrative fee to cover the time spent setting up the conference and travel time to and from the conference.
The fee is to be paid in full by the defendant at the end of the mediated settlement conference, or within 30 days if the defendant is the State. The defendant may then withhold the claimant's share for the mediator's fee from future payments made to the claimant, subject to the approval of the Commission. Therefore, a defendant cannot withhold the claimant's share without notifying the Commission of the intention to do so and specifying out of which payment, and then receive the Commission's approval. If the fee is to be withheld from a sum to be paid under a clincher, then the clincher must spell out the deduction for the Commission to approve it.
As the Orders generally go out at the end of the first week of a month, the parties have until the end of that month (21 days) plus the next two months(60 days) to complete mediation. This is a shorter time frame than participants are used to in the Superior Court system. However, in an effort to not interfere with or delay the setting of any case for hearing, it is necessary to set mediations on a fast track. On a case by case basis, where an extension will not interfere with a hearing, or the parties decide to continue a hearing because they want to mediate, then extensions are granted.
If the case is not quite ready for mediation (i.e. certain records or information have not been obtained), or mediation is not appropriate at this time (i.e. the case has already settled, or the claimant has not reached maximum improvement, so disability cannot be determined) or the conference cannot be scheduled within the time allotted, the parties or the mediator merely need to submit a motion, in the form of a letter, carbon copy to all others involved, explaining the situation. If the parties agree (or the opposing party does not object within ten days of the letter), then an extension of time or dispensing with the mediated settlement conference is usually granted, so long as there is a reason given to support the motion.
Motions to Dispense with Mediation are to be filed within 21 days of the Order to mediate. Thus, the parties have 21 days within which to either select a mediator or to decide that mediation is not appropriate. If the Motion to dispense is filed after the mediator is appointed, the Commission may order compensation to the mediator.
The Commission has the authority to require that any party seeking to dispense with mediation select a case from their files which that party deems appropriate to be mediated in its place. At this time the Commission is not requiring this to be done as requests to dispense are not unreasonable so far. However, if a particular law firm, employer or insurance carrier is deemed to be abusing the liberal granting of motions to dispense, then that group will be asked to suggest substitutes before a motion to dispense is granted.
Extensions of Time to Complete Mediation If it appears to the parties that a mediated settlement Conference cannot reasonably be set in the time specified in the Order, then the preferred method is to go ahead and set the conference for the earliest possible date, then write me a brief letter indicating the situation, and stating the date set for the conference. As the conference date will obviously be by the consent of all parties, I will automatically extend the date to complete the mediation to a week to 10 days after the date of the conference.
The Rules provide that the conference is to be held in the county in which the claim was filed, unless the parties and the mediator agree otherwise. What this means in practice is, that the first issue to be resolved by the mediator and the parties is when and where the conference will be. Most experienced mediators find that the best location is in the offices of one of the attorneys involved. Thus, access is no problem. Telephones, fax machines and word processors are available if needed. There are many amenities, which generally outweigh any concern about home turf issues. Once the mediation starts, few people ever think about whose office they are in. But it is up to the parties and mediator to work this out.
Also at issue may be in which county the mediation will take place. Unless ALL PARTIES agree otherwise, it will be in the county in which the claim was filed. Therefore, if a Raleigh mediator is appointed to a Charlotte case, the mediator has to go to Charlotte, unless the parties want to come to Raleigh.
To be handled at the same time is the issue of date and time. If the parties cannot or will not agree, the mediator has the authority to set the time and date. A good mediator will make every effort to accommodate the parties schedules, rather than simply dictate when the conference will be held. Also, as indicated above, the Commission is granting liberal extensions of time to complete mediation if a convenient time cannot be found within the initial deadline.
The mediator is required to report to the Commission the results of the mediation. The report indicates that the mediation conference was held, when and where, any parties that were absent (in case there is a subsequent motion for sanctions for failure to attend), whether the case or any issues in the case were settled, and whether the mediators fee has been paid.
The mediator does not and will not indicate who negotiated how, whether some one was naughty or nice, or anything about the substance of the mediation. The Commission simply needs to know that the conference was held, and once it has been, whether to put the case on for hearing or has it settled and we hold it for an agreement to be submitted.
When I receive the mediator's report, I will mark my file as closed, also indicating the final result of the mediation. The report will be placed in the case file. I do not change to case status code. Once the parties have submitted their settlement agreement for approval, the Executive Secretary will change the status code to 110, indicating that settlement is pending. In cases where no settlement was reached, the case simply remains a status code 102.
Frank C. Laney is an attorney/ certified mediator and presently serves as the Mediation Coordinator of the North Carolina Industrial Commission. His telephone number is 919-715-2791. Please call if you have any question.