By Deborah Wood Blevins
Managing Deputy Commissioner of the Virginia Workers Compensation Commission
Alternative Dispute Resolution Department
In January 2020 the International Association of Industrial Accident Boards and Commissions (IAIABC) published a comparative study of dispute resolution systems in workers compensation agencies in six states. Pennsylvania, Tennessee, Wisconsin, Kansas, Oregon, and the state of Washington participated, allowing in-depth study of their dispute resolution systems. Although the primary focus of the study was on the adjudicatory process, at both the trial and appellate level, the report sheds light on Alternative Dispute Resolution (ADR) in those states as well. The entire report may be found here.
At a high level, the study found that most claims in all states studied were resolved by agreement of the parties through some method of self-execution. Where disagreements do occur, states encourage the parties to discuss the issues in an attempt to resolve them. Some offer informal conferences. Some offer formal mediation programs. Some offer a combination of both. Two states, Tennessee, and Washington, mandate mediation prior to going to a hearing. In Pennsylvania, judges often mandate mediation at the close of a full hearing, which must be convened within 35 days of the request of either the employer or insurer[i]. A fourth, Wisconsin, offers a service like mediation for pro se claimants. The study found that the success rates in these programs “vary greatly but it is clear that mediation substantially reduces cases going to hearing.”
All of these programs focus on ADR early in the litigation proceedings. They often occur in conjunction with pre-trial discovery, preliminary hearings, and/or conferences. Judges sometimes use the pre-hearing conference as a vehicle to encourage settlement.
The report found that while use of mediation or ADR was common, reporting on it varied widely. Some states (Tennessee and Kansas) mention mediation prominently in their Annual Reports, while others (Washington) do not. The authors of the study argue that states should report on ADR, both to show the effectiveness of mediation in reducing the volume of cases litigated, and also to target the types of disputes in which ADR is most effective so that it might be encouraged in those areas.
Not addressed by the study are some issues particular to reporting in ADR. In most jurisdictions, mediation carries with it some degree of confidentiality. The ability to report may be limited by statute or administrative rule. Philosophically, some follow the goals of self-determination and expression of interests in mediation. For them, a successful mediation may not result in settlement of the case if the parties have freely exchanged information and determined for themselves that litigation is the best alternative. Ethical mandates in some jurisdictions dictate this philosophy.
The IAIABC study urges all states to adopt and report metrics on mediation so that states can learn from each other. The authors found that mediation is embraced by the bar in some jurisdictions and not in others. Perhaps by identifying and reporting metrics in ADR, it argues, successful practices may be found. As jurisdictions consider reporting metrics, multiple factors come into play, defining which metrics might be reported, and in what ways.
[i] The report incorrectly states that Pennsylvania mandates mediation prior to a hearing. See: Penna.WC.newsltr_143Aug2020, pp. 73-74. David B. Torrey, Recent Articles of Interest, in PBA Work Comp Law Section Newsletter, Vol. VI, #143 (Aug. 2020).