- Commissioners would have the power to order parties to mediate prior to a single commissioner hearing;
- If a mediation fails, the claim would return to the judicial department and be reset for a hearing;
- Costs would be split between the parties for mediation unless either party volunteered to pay the costs; and
- If the parties cannot agree on a mediator, the Commission would have the power to appoint one.
I attended the general membership meeting on Thursday, November 3, 2011 for the South Carolina Self Insurers Association (SCSIA). During the meeting, South Carolina Workers’ Compensation Commissioner Derrick Williams spoke about the status of the Mediation Advisory Committee. The Advisory Committee is discussing a mediation program for workers’ compensation at the Commission level, which is different from the Voluntary Mediation Pilot Program established by the Supreme Court in October 2011. (See Suzy Cole’s blog post.) The Advisory Committee has not finalized its recommendations, but it intends to present the proposed regulation in early 2012 to the Commission for review. At this time, the Committee is reviewing the following procedure:
The Advisory Committee recognizes not all claims would benefit from mediation. Based on its research, the following types of cases would lend themselves to mediation:
· Lifetime indemnity cases under § 42-9-10 (paraplegia, quadriplegia and physical brain injury);
· Post July 1, 2007 back injuries with likely awards greater than 50 percent to the back;
· Mass exposure claims featuring large numbers of claimants;
· Third-party lien issues;
· Cases with multiple employers and carriers;
· Contested death cases; and
· Mental-mental cases.
The Advisory Committee is also reviewing proper mechanisms for parties to consent to mediation. For example, in North Carolina, parties have the ability to opt out of mediation.
Be on the lookout for the proposed regulations in January or February 2012.