In 2013, the South Carolina General Assembly approved the Mediation Regulations to resolve disputes without needing to proceed to a full formal hearing. Once these regulations came into effect, cases brought under particular acts were required to be mediated prior to a hearing being set. Specifically, among other claims, these regulations apply to third party lien reduction claims, occupational disease claims, mental-mental injury claims, and, as this article will discuss, certain other claims brought under the South Carolina Workers’ Compensation Act.
Since the South Carolina Workers’ Compensation Commission adopted these regulations, certain workers’ compensation claims now must be mediated before a hearing can be scheduled. These regulations also allow a commissioner to order mediation regarding a claim. If you are initiating a workers’ compensation claim in South Carolina, it is important to understand the basics of what mediation is and how the process unfolds.
What Is Mediation?
Mediation is a process wherein a neutral third party helps parties to reach a mutually satisfactory resolution of the disputed issues prior to hearing. In a workers’ compensation claim, mediation occurs between you, your employer’s representative, and a certified mediator. A mediator must be certified and accredited by the South Carolina bar. The mediator’s role is to try to outline and clarify the issues and to help the parties negotiate by facilitating discussion regarding the same.
How Is Mediation Initiated?
Once you file the initial pleading in your workers’ compensation claim (typically, a Form 50 Hearing Request) and your employer files a response (typically a Form 51 Response to Request for Hearing), personnel from the South Carolina Workers’ Compensation Commission will review your file and determine whether mediation is required. If the Commission determines mediation is required, they will notify both parties and the parties will need to inform the Commission of a selected mediator within 10 days of receiving the notice. If the parties cannot agree on a mediator, the Commission will choose one for them.
Even if mediation is not required, a party has the option of requesting mediation in any case when filing for hearing or when filing a response.
When Is Mediation Mandatory for a Workers’ Compensation Claim?
Mediation Regulation 67-1802.A provides that mediation is mandatory for two major categories of workers’ compensation claims:
- All admitted cases involving total disability or lifetime benefits under S.C. Code § 42-9-10; and
- All admitted cases alleging total disability for a 50 percent or greater loss of the back under S.C. Code § 42-9-30(21).
As indicated above, admitted claims that involve occupational diseases, mental/mental injuries, third-party lien reductions, and cases of concurrent jurisdiction with the Federal Longshore and Harbor Workers’ Act must also be mediated.
Is There a Time Period to Complete Mediation?
In a case mediated by the mediation regulations, the parties have sixty days after the filing of the Form 51 Employer’s Request for Hearing or a Form 22 Claimant’s response to Employer’s Request for Hearing to complete the mediation.
What Happens During Mediation?
Overall, mediation is an informal process. The mediator will begin by providing an overview of the mediation procedure. The mediator will then likely start the mediation by asking both parties to summarize their positions to each other as a starting place. The mediator will then take turns meeting with each side separately. These separate meetings serve to help the mediator understand the nuances and motives behind each party’s stance and enable to mediator to guide the parties towards a mutual agreement that satisfies both sides’ needs and interests.
In order for mediation to be successful and result in an agreement, both parties will need to compromise. A mediator will promote discussion of possible solutions and encourage both sides to evaluate these solutions in relation to their respective needs and interests. Although a mediator will help facilitate this discussion between the parties, the ultimate decision of whether an agreement is reached is up to the parties.
How Should I Prepare For Mediation?
You should gather and bring any and all documentation you believe may be relevant to your claim. For example, if your claim involves an injury or disability, you should bring medical records to support your claims. It may also be a good idea to be prepared to go through the essential facts of your claim. Parties are expected to attend mediation in good faith. Part of this good faith is providing a mediator with pertinent helpful information to make sure issues are fleshed out for both parties.
What if I Cannot Resolve My Claim Through Mediation?
If mediation proves unsuccessful, you may then set your case for a full hearing before a commissioner. It should be noted here that mediations are completely confidential so any proposal or theory one party explores during mediation cannot later be used against them if the mediation is unsuccessful.
Can What I Say in Mediation Be Used Against Me?
No. Everything that you discuss with the opposing party and the mediator during the mediation, including any evidence you present, is confidential. The mediator will not make any record of what is said or offered and no information about what was discussed during the mediation will be presented to the commissioner if mediation is unsuccessful. This means that if your mediation is unsuccessful, a commissioner who ultimately hears your case will only take into consideration arguments and evidence presented at the hearing.
Contact an Experienced Workers’ Compensation Lawyer Today
If you are initiating a workers’ compensation claim, you have the choice to have a lawyer with you during the mediation. It is best to hire a lawyer to evaluate your claim and determine the range of benefits to which you might be entitled and whether there is any information that you may not want to reveal right away during mediation. The determined Greenville workers’ compensation lawyers at David R. Price Jr., P.A. can help ensure you are comfortable during the mediation process and that your rights are protected during mediation and after if your case is not resolved during mediation. Contact us today for a free consultation!