Using Mediation in Workers' Compensation Appeals

Mediation is a method of alternative dispute resolution. A mediator or neutral third party helps the litigants resolve their dispute through an informal process. The mediator facilitates negotiations and helps the litigants identify issues, problem solve, and explore settlement possibilities. The mediator has no authority to make a decision about the case. Mediation is increasingly being used to resolve appeals in workers' compensation cases.

State Administrative Agency Makes Initial Decision in Workers' Compensation Cases

Workers' compensation cases are initially filed in a state administrative agency such as a state industrial commission or bureau of workers' compensation. The administrative agency hears disputes between employees and employers that involve workers' compensation benefits. Workers' compensation benefits pay an employee for job-related injuries and diseases, medical expenses, and lost wages. Employers buy workers' compensation insurance from a state fund that makes such payments or, in some cases, employers become self-insurers, assuming liability for paying benefits directly to an employee.

State Administrative Agency's Decision Can Be Appealed

If either the employee or the employer is dissatisfied with the administrative agency's decision, the case can be appealed to a state court. In some states, the appeal is made to a trial level court. In other states, the appeal is brought in an intermediate appellate court or in the state's highest court.

Mediation of Workers' Compensation Appeals in Ohio

Mediation is being used by some states to expedite resolution of workers' compensation appeals and shorten the appeal process. Pilot programs have been implemented in Ohio and West Virginia. In one Ohio appellate district, mediation was introduced early in the appeal process. Cases were randomly assigned for mediation, and an attorney in private practice served as the mediator. Mediation resulted in a significantly higher rate of settlements before appellate review by the court.

Mediation of Workers' Compensation Appeals in West Virginia

In West Virginia, workers' compensation appeals go directly from the state administrative agency to the state's highest court. In 1998, the state's highest court (the Supreme Court of Appeals of West Virginia) implemented a pilot project using mediation to resolve workers' compensation appeals. The court selected some cases for mandatory mediation. Mediation took place in about half of the selected cases, and settlement occurred in more than half of the mediated cases. The West Virginia pilot project has become an ongoing mediation program.

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