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September 25, 2017

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Mandatory Mediation

Under Section 401.1 of the Pennsylvania Workers’ Compensation Act, workers’ compensation judges are directed to schedule a mediation to take place, on every petition, unless the judge determines that a mediation would be "futile".  This section further directs that such mediation will take place no later than thirty days before the deadline for the filing of Briefs and Findings in each case.  Further discussion on the procedures for such mandatory mediations is contained in Rule 131.59 of the Rules of Procedure before Workers’ Compensation Judges.  We note that neither the Act nor any of the Bureaus Rules and Regulations specifically define what "futile" means.  However, we recently spoke with the Bureau about this issue and they advised us that the purpose of mandatory mediation is not limited to financial settlement of the case but may include an attempt to resolve other issues in litigations such as average weekly wage, scope of employment and so forth. 

In the past when Workers’ Compensation Judges discussed mandatory mediation at a first hearing, defense counsel would generally advise the judge that they did not have settlement authority.  The judge would immediately make a finding, on the record that mandatory mediation was "futile" and drop the issue.  However, recently some Workers’ Compensation Judges have been ordering mandatory mediation to be scheduled even when defense counsel state that they do not have authority (either settlement authority or authority to go to a mediation).  We have found, however that other judges are not ordering a mediation where defense counsel does not have authority. 

Where a judge does order a mediation on a matter that parties are not otherwise ready to settle, it does raise some problems such as the cost of having an attorney prepare, travel to and attend a mediation where the employer or the claimant, for that matter, has no interest in settling the case at that particular time.  Mandatory mediations are always assigned to judges other than the judge hearing the pending petition. 

Even after a mandatory mediation has been scheduled your counsel may send a written request, to the assigned judge (that is the judge hearing the petition), with a copy to the mediating judge, a request that the mediation be canceled on the basis that it is "futile" and an explanation of why the mediation would be futile.  You may wish to consider such a request given the fact that if you do not have settlement authority at mediation you will still incur the cost of counsel’s travel to and attendance at the mediation.  Generally speaking, mediations may last upwards of two hours or more. 

As we obtain more information on this issue, we will update this article and provide further guidance on how to handle this issue.  Contact our offices for more information. 

The articles posted at this site have been written by William H. Lynch, Jr., Esquire.  They are for informational purposes only and do not constitute legal advice or suggestions.  Any copying, reproduction, or use of this article, in whole or in part, without the written express permission of the Law Offices of William H. Lynch, Jr. is strictly prohibited.  For a specific legal question or case referral, kindly call or email Bill

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