One key advantage of workers’ compensation claims is that they generally avoid the need to go to court to receive compensation if you are injured in a work-related accident or develop a work-related chronic medical condition.

Sometimes, however, during settlement negotiations with your employer’s insurance company, disputes can arise that can lead you to seek a hearing through the Industrial Commission of Arizona (the ICA).

Before a formal hearing, many times a workers’ compensation insurer and an injured worker can resolve their differences through workers’ compensation mediation. The Matt Fendon Law Group can represent you during mediation proceedings, so you can receive the workers’ compensation benefits you deserve through a fair settlement, without the need for a formal hearing.

If you need help settling your Arizona workers’ comp claim with an insurance company, then call us at (800) 229-3880 to talk with one of our dedicated workers’ compensation attorneys. We can advise you on your settlement options, including mediation, in a free initial consultation.

When Can Mediation Help in a Workers’ Compensation Claim?

Most of the time settling your workers’ comp claim with an insurance company is an informal back-and-forth negotiation process between you, your workers’ compensation lawyer, and an insurance adjuster. Typically you will work out the details of your claim until both sides agree to the terms of your settlement, either in a scheduled payout or in a full and final lump sum payment.

Occasionally, though, you and the insurance adjuster may reach an impasse on one or more of the details of your claim. These sticking points can be relatively minor, like:

• What kind of medical treatment you will need in the future.
• What kind of work you might still be able to perform if you cannot go back to your old job.
• The value of your lost wages when you could not work because of your work-related injury or condition.

In more serious situations, the insurer may decide that your injury or medical condition is unrelated to your work, such as a natural progression of a pre-existing injury or an accident unrelated to your employment, and attempt to deny your claim. On rare occasions, the insurance adjuster may even conclude that your claim is fraudulent.

When you reach a point where informal settlement negotiations break down, Arizona workers’ compensation law gives you the option to request a formal hearing before an ICA Administrative Law Judge (ALJ).

Before this formal hearing takes place, the ALJ may encourage you and the insurance company to try to solve your differences through alternative dispute resolution. Mediation, which is sometimes referred to as a settlement conference, is one form of alternative dispute resolution the ICA encourages.

What Does Mediation Involve?

Mediation is a voluntary dispute resolution mechanism. If you and the insurance company agree to mediation, then this informal process will follow a procedure that usually consists of the following steps.

Preparing for Mediation

You will have the opportunity to exchange information with the insurance company before the mediation takes place. This information will help to specifically identify the matters in dispute, and allow you and your attorney to gather the relevant documentation and other evidence you will need and to request from the insurance company information it has and vice-versa.

Mediation preparation is a good opportunity for you to work closely with your workers’ compensation lawyer to do the following as needed:

• Collect evidence linking your injury or medical condition to your employment and any correspondence you have already exchanged with the insurance company.
• Gather your medical records of treatment for your injury or condition, including medical diagnoses and opinions, treatment plans, and prescriptions.
• Calculate your lost wages and the non-medical bills you will have to pay while you cannot work.

Attending Mediation Sessions

The mediation itself will usually take place in the Phoenix or Tucson offices of the ICA before an ALJ who is also a trained mediator. The mediator’s goal is to facilitate discussions between you and your workers’ compensation attorney, the insurance adjustor, and any attorney the insurance company may hire to represent it.

The following people are common participants in the mediation sessions:

• You, and your workers’ comp lawyer if you have one.
• The adjuster for your employer’s insurance company, and possibly an attorney for the insurer.
• The mediator.

Others who may attend the mediation but who are not always present include a representative of your employer, your spouse, another family member, or a close friend.

Conduct of the Mediation

The parties participating in mediation must agree to participate in good faith and have the authority to resolve disputes. By agreeing to mediation, both sides must agree to maintain the confidentiality of the mediation and will be required to sign or otherwise consent to an agreement to mediate that includes disclosures and confidentiality provisions.

Before the mediation starts, the mediator will set the rules for the mediation hearings. These include:

• Allow the ALJ mediator to direct the flow of the session.
• Be respectful and courteous to all participants, including the ALJ mediator.
• Actively listen to others, without planning a response while they are speaking. Do not interrupt others while they are speaking.
• Talk openly and honestly. Speak in a civil manner to everyone in the session (no screaming or shouting, and no name-calling or personal attacks).
• Focus on future actions rather than past events, and think of solutions that will be acceptable to all parties.
• Allow the ALJ mediator to decide when to end the mediation.

Mediation usually begins with a joint session involving you and the insurer. After opening statements by the two parties, the mediator may choose to keep everyone together in the same room or separate the parties and work with them in separate caucuses. Information that each side shares with the mediator will not be shared with the other side unless the disclosing party permits the mediator to do so.

The neutral mediator does not take sides during these discussions, nor offer any legal advice to either side. The mediator cannot, and will not, decide who is right or wrong in the dispute or attempt to impose any agreement on you and the insurance carrier.

The mediator will continue to work with both sides, shuttling between caucuses to seek common ground until the disputing parties agree or it becomes apparent that mediation will not result in a settlement.

What Happens When Mediation Leads to a Settlement?

If you and the insurance company can reach an agreement during the mediation, or afterward because of the mediation, then the next step in a successful mediation is the drafting of a settlement agreement.

The settlement agreement usually comes in two stages: a generalized draft that both parties sign, and then a formal settlement agreement the parties file for formal approval with the workers’ compensation judge.

What Happens if Mediation Does Not Lead to Settlement?

If mediation fails to lead to settlement, then the matter will be referred to the presiding ALJ to proceed with a formal hearing and to issue a decision.

If this happens, then communications made during mediation remain confidential. The ALJ mediator cannot be called to testify in the ALJ hearing, or in any subsequent court proceeding, if any.

The parties involved in the mediation are similarly prohibited from testifying about matters discussed during the mediation. Mediation statements will not be added to the ICA Claims Division files, or otherwise become a part of the record.

Note that just because the mediation process did not result in a workers’ comp settlement does not mean that settlement still cannot happen. Workers’ comp cases settle at any point before a final hearing decision. You and the insurance company can still reach a settlement on your own at any time during the hearing process.

Prepare for Workers’ Comp Mediation with an Experienced Attorney

At the Matt Fendon Law Group, our highly skilled and compassionate workers’ compensation lawyers have the negotiation skills to help you with the legal representation of your workers’ compensation claim, including dealing with your employer, working with the insurance carrier, and representing you in mediation.

If you need a workers’ compensation lawyer in Arizona, contact our law firm at (800) 229-3880 or reach out to us online to schedule a free consultation about your workers’ compensation case.