Mediation is meeting between all the parties to a claim to discuss its value with an unbiased third party known as a certified mediator. The goal of every mediation is to settle the claim before a hearing. Mediation is required in some SC claims and can voluntarily be agreed to in all. Some actions where mediation is mandatory include permanent disability claims arising under §42-9-10 and §42-9-30(21) as well as mental-mental and occupational disease claims. Alternatively, parties are not required to mediate denied claims, regardless of the extent of the injuries, and pro se claimant’s are not required to mediate.
Recently, regulations were enacted by the legislature to govern the mediation process in an effort to ensure it does not unduly delay adjudication of a claim. SC Code Ann. Regs. 67-1801-1809 Regulations require parties to choose a mediator within 10 days of Form 50, 21, or 51 requesting mediation being filed. If parties cannot agree to a specific mediator, the Commission will appoint one to the claim. Mediation should be held within 60 days, but an extension can be requested, as they are often difficult to schedule.
At a mediation, every party (claimant and defendants) must have a representative available, besides their attorneys. An appearance can occur via phone. Party participation is important so that the mediation can achieve its purpose of advancing parties understanding the claim and the ultimate goal of settlement. There are even penalties available if one party fails to mediate in good faith.
Mediation is an informal meeting where parties can speak freely. Therefore, it is often a time where some closure can occur after an accident. All negotiations and communications are confidential. Ultimately, the mediator cannot force the parties to agree to settle or make any binding decision in the claim.
I have mediated claims in the past and realize the process can be emotional for the injured worker. It often feels like the carrier is taking too long or does not understand the pain associated with the underlying accident. But I trust the mediation process because I have seen it yield results that would not have been possible to achieve at a hearing.