In Christian Petrucci’s latest article in The Legal Intelligencer, he tackles Mandatory Worker’s Compensation Mediations. Mandatory Mediations are a relatively new process when it comes to Worker’s Compensation. Was this a good good idea to put into practice? Christian explains his answer. Read more of the story in the excerpt below and read the whole story at The Legal Intelligencer’s website.

Christian Petrucci, The Legal Intelligencer

While it may be hard to believe, the mandatory mediation process has been with us for almost 10 years. Act 147 of 2006, which amended the Workers’ Compensation Act, originally codified the program. Given that there was initially some apprehension with the concept of making mediations mandatory, revisiting some of the concerns originally raised is warranted. It is also important to review some issues that can arise with both mandatory and voluntary meditations and recall some basic principles that will assist either type of mediation in being a success.

Prior to 2006, the Workers’ Compensation Bureau’s mediation program was voluntary. It offered the parties an opportunity to have a discussion on an informal basis, facilitated by a neutral workers’ compensation judge or attorney examiner who was willing to conduct the mediation. Obviously, the allure of a mediation was to allow both parties (injured workers and self-insured employers in particular) to have some control over the outcome of the case, instead of leaving their fates in the hands of a workers’ compensation judge. Since the limited program had been extremely successful, it was included in Act 147 and made mandatory, despite the fact that most of those who testified before the legislature on the topic discouraged making the process mandatory. It was thought that the voluntariness of the process is what had made it so successful.

Now that the jury has returned, the question must be asked: Was making the mediation process mandatory a good idea? It would seem that the answer is an unequivocal “yes.” While the legislature’s attempt at fostering a utopian “culture of cooperation” that would end workers’ compensation litigation as we know it has not come to fruition, anecdotally, litigation has been reduced across the state and parties are generally happier with outcomes. Immediately following the passage of Act 147, most mandatory mediations were not even scheduled since they were often deemed “futile” at the discretion of the workers’ compensation judge at the first hearing. Usually, this was done merely due to the unwillingness of the employer to provide authority. The Office of Adjudication pushed back, suggesting that lack of authority was not ample justification for finding a mediation futile. Now, it seems every case is scheduled for a mediation, unless both parties agree that it would not be helpful. Overall, one would be hard-pressed to find a practitioner on either side of the aisle who does not agree on the success of the mandatory mediation process.

Given the continued efficacy of the bureau’s mediation program, it warrants revisiting ways to make the process more rewarding. While seemingly obvious, it is important to recall that mediations can be effective, even if only to assist the parties in understanding one another in finding common ground for devising an agreement. The case need not immediately settle for the mediation to be beneficial. There are certainly cases that will simply not settle for various reasons. Some claimants may confuse workers’ compensation outcomes with personal injury ones. Unfortunately, pain and suffering will never be a component of workers’ compensation damages. Likewise, some self-insured employers have a standing policy to fight almost every case in order to discourage some sort of “culture of compensation” that might arise if workers hear about the settlements achieved by their peers. Even so, mediation should be attempted prior to misallocating precious financial and judicial resources on litigation.

When a mediation is certain, practical considerations should be taken into account. The first rule is to know your judge. Each judge has his or her own unique style. It is important to learn the style of each neutral mediator in order to maximize the utility of the process. No style is perfect. However, each is ultimately geared toward a particular result. Some judges are, for lack of a better term, “hammers.” They will figure out which party is weaker in its position and “turn the screws” on that party to achieve a result, irrespective of the fundamentals of the case. While this method may seem unhelpful on most occasions, there does come a time when either a claimant or a self-insured employer is being entirely unreasonable. Sometimes a fresh perspective from an independent judge who will not mix words can be very beneficial. Someone can hear an attorney say something repeatedly, but until it comes from a neutral source, it sometimes does not sink in.

In contrast to the hammer, some judges operate like water. They take the “path of least resistance” approach to mediation. Essentially, this style allows the parties to interact for as long as they want with almost no intervention. As strange as it sounds, this can sometimes be effective, as the parties ultimately know what is important to them and often only need a forum to communicate it. However, if there is a party that is being unreasonable, this method is doomed to failure.

While the number of mediation styles is probably as large as the pool of mediators, the third basic manner of conducting a mediation is for the judge to consider every aspect of the case, including the prospect of success on the merits of any pending petitions, the description of injury, the nature of the employment and the average weekly wage. While one might think all mediators take each of these factors into consideration, that is not the case. Some judges simply care about the numbers. This final method can be most effective for those attorneys who do their homework and have an elaborate case to be made. After all, the value of any case should really focus on how long the injured workers can reasonably be expected to remain on workers’ compensation.

Since only the mediating judge can push a recalcitrant client off of an unreasonable “bottom line,” knowing what style the mediating judge implements is paramount. If the mediation is mandatory, then it is advisable to gear the presentation to the audience. If the mediation is voluntary, then the mediator should be selected based on the needs of the client.

Equal in importance to knowing the mediator’s style, in order to have a successful mediation, one must be prepared. As any Boy Scout will tell you, this may sound obvious. However, after participating in countless mediations, the temptation is to believe that one can simply walk into a mediation and achieve the settlement value previously determined just through the power of personality and persuasion. This is a very naive way of looking at a mediation. While it is true that one’s reputation and past performance can impact negotiations, ultimately, the attorney who is better prepared and, in turn, has prepared his or her client accordingly will be the most successful in any mediation.

Preparation, as alluded to above, is not simply having a mastery over the facts and numbers of a particular case. It involves preparing the client as to what might be expected and perhaps agreeing on a bottom-line number before the mediation begins. The client has never done this before. An awkward situation can arise when something is presented to an injured worker for the first time during a mediation, especially if it comes from opposing counsel or the judge. The client’s own attorney can quickly be perceived as the adversary without an adequate foundation being laid through preparing the client for what to expect.

While knowing the mediator and properly preparing are paramount to success in a mediation, having patience will bear dividends in the final analysis. Never rush a result. Settling the case may enable you to move on to the next one. Always remember that the client has to move on with his life. Even when one has a “hammer” for a mediator, the case should not be settled until the client is comfortable. While it is often said that one achieves a great result if neither party is happy, patience, care and attention to detail will ultimately leave your client happy, even if the numbers fall short of what was expected.

In this age of nine-month trial schedules and ever-increasing pressure on judges to issue decisions in timeframes that were unthinkable only a few years ago, the mediation will only take on greater significance as time goes by. Honing one’s mediation skills can dramatically ensure a much healthier practice.

Christian Petrucci is a solo practitioner. He is past co-chairman of the Philadelphia Bar Association’s workers’ compensation section and member of the bar association’s board of governors. He concentrates his practice in workers’ compensation litigation and Social Security disability law. He can be reached at 215-592-1120.