1. Introduction
If an injured worker is in a dispute with his or her Oregon Workers’ Compensation carrier, mediation is one way to explore resolution and settlement of the case. However, there are some key factors to consider when approaching mediation.
A “mediation” is simply a formal settlement conference, usually involving an Administrative Law Judge that acts as a “diplomat” for settlement discussions. Mediations are voluntary, and even after beginning a mediation session, one or both parties may decide that the case cannot be resolved.
If the mediation is successful, the case is settled, and the parties enter into a settlement agreement. Workers' Compensation law is specific about what kinds of settlements employers and injured workers can make. However, in many cases, the settlement is an agreement that the injured worker will give up certain rights in exchange for money.
Here are some key considerations when approaching a mediation in an Oregon Workers’ Compensation case.
2. Who is Mediating This Case?
Mediation is a skill. Some attorneys and Judges will actually go to school to learn the ends an ounce of mediation. Some mediators are more effective than others. Even among the most effective mediators, some mediators are better for certain kinds of cases. When we decide to mediate a case, we research the proposed mediators, and make sure that we agree to a mediator that is the best fit for our client.
In the Oregon Workers’ compensation world, most of the mediators are active Administrative Law Judges. However, some retired Administrative Law Judges offer private mediation services. The private mediator’s will charge a fee for their time, but the Workers’ Compensation Board offers mediation services free of charge.
3. What Issues Are We Mediating?
Another way of asking this question is, “what’s is on the table?” Typically, a mediation will involve a denied claim. However, there also may be accepted medical conditions, and an employer or an injured worker may want to explore resolution of an accepted claim as well.
And frequent years, some insurance carriers insist on negotiating a severance of employment, or what is commonly referred to as an “employment release.” This is an agreement that the injured worker will not pursue any other remedies outside of the workers’ compensation claim against the employer, and will and the employment relationship.
4. Why Mediate?
There are a couple of reasons we may recommend our client pursue mediation. First, there is a lot to be set for convenience. All of the decision makers are in one place at the same time, and what may take several days, or even a number of weeks can be accomplished in a few hours.
Mediation also offers an opportunity to learn the complex issues that often times surround a workers’ compensation claim. The injured worker is able to participate in the process, and learn about the issues at stake, and all possible outcomes. Simply stated, mediation allows an injured worker to make an informed decision.
Many people, including some Judges, feel that the Oregon Workers’ Compensation system is broken. As result, injured workers are often mistreated, and resentment builds. The mediation process allows an injured worker to “vent” their frustrations, and get everything out on the table. This allows the injured worker to get past the emotional part of the claim, and make a decision based on the legal issues.
If you are in the middle of a workers’ compensation claim in Oregon, and have questions about whether mediation or other resolution a makes sense on your case, call us at 503-325-8600. We have mediated complex cases over the years, I can answer your questions.
