Mediation, Generally

(1) All petitions and claims pending at the time a mediation conference is held are deemed consolidated and shall be mediated at that conference.

(2) Parties who have agreed to private mediation or to re-schedule private mediation shall file with the judge at least 30 days prior to any scheduled mediation a notice substituting private mediation for state mediation or re-scheduling private mediation. If such notice is filed less than 30 days prior, it shall be treated as a motion, and attendance and participation at the scheduled state mediation shall not be excused, absent an order finding good cause to excuse this time requirement. The notice shall include the name of the private mediator, along with the date and time of the private mediation and shall state that the private mediation meets the statutory deadline, unless the deadline is waived by all parties.

(a) The Deputy Chief Judge shall assign a mediator and mediation date for each petition filed. The state mediation conference may be rescheduled, within the 130-day statutory period, upon mutual request of the parties and agreement of the assigned mediator. The parties shall jointly review the mediator’s calendar online to identify potential alternative dates and times before contacting the mediator with a request to reschedule. Any such change in date shall be considered a rescheduling and not a continuance of the mediation. Upon agreement of the parties, and approval by an alternate state mediator, mediation for the case may be transferred to the alternate state mediator provided any pending mediation is held within the 130-day statutory period. Permission of the mediator from whom it is transferred is not necessary. The alternate state mediator shall be responsible for placing the mediation on the alternate state mediator’s calendar.

(b) The state mediation shall not be continued, or transferred by the parties to an alternate state mediator, for a mediation beyond the 130-day statutory period, unless first granted by the judge upon agreement of the parties or upon proper motion demonstrating that the basis for the continuance, or transfer, arises from circumstances beyond the movant’s control or for other good cause shown. The motion shall be filed no later than 30 days before the date of the scheduled state mediation absent an emergency, unless the mediation notice is sent to the parties less than 30 days prior to the noticed mediation.

(c) Any party that moves for, or stipulates to, reassignment to an alternate mediator for the purpose of effectuating a live mediation shall attend that mediation live or the party’s attorney shall attend live. No mediator shall allow telephonic attendance for any lawyer or party that has stipulated or moved for reassignment on the basis of facilitating a live mediation.

(d) Digital signature software may be used to execute mediation documents, including mediation conference reports and settlement agreements.

(e) Parties to a workers’ compensation claim may jointly request voluntary mediation services from the OJCC. Such requests will be considered as individual state mediator calendars permit. Any voluntary mediation will be conducted only if all parties so stipulate. Any voluntary mediation will be governed by these rules. Failure to appear at a voluntary mediation shall not be a basis for the imposition of sanctions.

(3) The parties and private mediator shall be bound by the rules and statutes applicable to state mediation. If a notice and order regarding state mediation has been entered in the cause, the terms and requirements of the notice and order shall remain in full force and effect as to the substituted private mediation.

(4) If the parties resolve all issues, or all issues except for attorney’s fees, prior to the scheduled mediation conference, the attorney or unrepresented claimant who has filed a petition for benefits shall file a pleading in order to cancel the corresponding mediation. The pleading must be filed prior to the scheduled mediation and shall indicate the manner in which each issue was resolved. The preparation and filing of this pleading are not the responsibility of the mediator.

(5) State mediations shall presumptively be conducted virtually on a video platform. The assigned mediator shall appear by video for video mediations. Unless the notice of mediation includes the login or call in information for the mediation, the assigned mediator is responsible for providing that information to all parties or counsel. The assigned mediator may allow telephonic appearance at any video mediation. The following persons shall attend the mediation conference: the claimant; the claims representative of the carrier/servicing agent, which representative must have full authority to resolve all the issues and/or settle the case; the employer, if uninsured; the insured or self-insured employer, if the employer/servicing agent does not have full authority to settle the issues; and the attorneys for the parties. The appearance of an attorney for a party does not dispense with the required video or live attendance of the party. No party shall appear at the mediation conference by telephone, whether mediation is live or virtual, unless such appearance is approved in advance by the mediator. Any party appearing by telephone has stipulated to be bound by that party’s attorney of record’s signature on the mediation report.

(a) The adjuster, if represented by counsel, may attend the live or virtual mediation by phone unless an objection is filed with the mediator on the basis of good cause. The parties may agree, in writing, that any party may appear telephonically. In the absence of such agreement, the mediator shall have discretion to allow any party and/or that party’s attorney of record to appear at the live or virtual mediation conference by telephone, except as provided in paragraph (2)(c). The party requesting an appearance by telephone must furnish a written request to the mediator and the opposing party or, if represented, the party’s attorney of record no fewer than five days prior to the mediation conference. The expense of telephonic attendance shall be borne by the person or party attending by telephone. Each party and attorney attending a virtual mediation is responsible to have adequate computer hardware, signal strength, internet bandwidth, and premises with/from which to attend mediation.

(b) Any person attending mediation virtually shall provide an e-mail address for use in exchanging documents during the mediation. Any mediation, except when the outcome is an impasse, is not concluded until the signed agreement report is returned to the mediator. The signed agreement report shall be returned within 72 hours unless excused by the mediator.

(c) Any party appearing virtually has stipulated to be bound by that party’s attorney of record’s signature on the mediation report. The parties may not object to the enforceability of a mediation agreement on the ground that communication technology was used for participation in the mediation.

(6) Failure to attend the mediation conference without a showing of good cause, or the failure to appear at the mediation conference with full authority to resolve the issues, shall subject the party or the attorney to sanctions.

(7) Immediately following the conclusion of a mediation conference in an open OJCC case, the mediator, whether state, adjunct, or private, shall prepare a mediation agreement report stating which issues or claims in dispute are resolved and which remain unresolved. The mediation agreement report shall identify by filing date each petition mediated. In the case of private mediation, the claimant shall file with the judge within five business days of the mediation conference the mediator’s mediation agreement report. Signatures of the parties on the signed mediation report may be an original, electronic signature by means approved by the Deputy Chief Judge, or facsimile and signatures may be on different copies of the agreement report.