While it may be hard to believe, the mandatory mediation process has been with us for almost 10 years. Act 147 of 2006, which amended the Workers’ Compensation Act, originally codified the program. Given that there was initially some apprehension with the concept of making mediations mandatory, revisiting some of the concerns originally raised is warranted. It is also important to review some issues that can arise with both mandatory and voluntary mediations and recall some basic principles that will assist either type of mediation in being a success.
Prior to 2006, the Workers’ Compensation Bureau’s mediation program was voluntary. It offered the parties an opportunity to have a discussion on an informal basis, facilitated by a neutral workers’ compensation judge or attorney examiner who was willing to conduct the mediation. Obviously, the allure of a mediation was to allow both parties (injured workers and self-insured employers in particular) to have some control over the outcome of the case, instead of leaving their fates in the hands of a workers’ compensation judge. Since the limited program had been extremely successful, it was included in Act 147 and made mandatory, despite the fact that most of those who testified before the legislature on the topic discouraged making the process mandatory. It was thought that the voluntariness of the process is what had made it so successful.
