Mediation

What are the settlement rates at IC mediation conferences?

Settlement rates at IC mediation conferences have historically been at or above 70%, and at or above 75% when settlements of cases at or before scheduled mediation conferences are included.

Does the Commission order all workers’ compensation cases to mediation?

Under the automatic referral procedures commenced during the 1996-97 fiscal year, whenever a party files a request for hearing in a workers’ compensation claim, the Clerk’s Office sends an Order for Mediated Settlement Conference to all parties along with the Commission's acknowledgment letter. The only cases that are not automatically referred to mediation are claims against the state brought by prison inmates, which are excluded by law, expedited medical motions and administrative appeals. In addition, cases involving injured workers who are not represented by counsel are generally mediated only if all parties agree to mediate, and cases involving non-insured employers are generally mediated only if all parties agree to mediate and the Deputy Commissioner responsible for the adjudication of non-insured cases approves the parties’ request to refer such cases to mediation.

How are mediators selected or appointed?

The parties have the right to select a mediator certified by the Dispute Resolution Commission on their own and may do so within the time periods specified by the ICSMC Rules. If the parties do not have a specific mediator in mind, they can select one from a list of mediators available on the Commission's web site or from the Dispute Resolution Coordinator's office. If the parties want to select a mediator, but need more time, an extension of the selection deadline may be requested from the Dispute Resolution Coordinator (Deputy Commissioner Kevin Howell). Requests for extensions of time to select a mediator and to complete mediation are liberally granted when there is no objection to such requests. If the parties have agreed or have been ordered to mediate, and cannot agree on the selection of a mediator, the Commission will appoint a mediator from its list of mediators eligible for appointment.

How does a person become eligible to be appointed by the Commission?

To be appointed by the Industrial Commission, a mediator must be certified by the North Carolina Dispute Resolution Commission to mediate cases in North Carolina’s superior courts through the court’s mediated settlement conference program. The mediator also must have a Declaration of Interest and Qualifications form on file with the Commission. The declaration must state that the mediator, if an attorney, is a member in good standing of the North Carolina State Bar; that the declarant agrees to accept and perform mediations of disputes before the Commission with reasonable frequency when called upon for the fees and at the rates of payment specified by the Commission.

Can any party submit suggestions concerning the appointment of a mediator?

Yes, if a party sends a letter to the opposing party and to the Dispute Resolution Coordinator suggesting one or more mediators for consideration, and the Dispute Resolution Coordinator receives no response to the suggestion(s) from the opposing party, then the Dispute Resolution Coordinator usually appoints a mediator suggested by a party. However, if the opposing party objects to a suggested mediator, that mediator generally will not be appointed. To be eligible for appointment when not selected by the parties, the suggested mediator must be on the Commission’s list of mediators available for appointment, and must have agreed to travel to the county where the case is pending. Certain mediators are not on the Commission’s list because they do not accept the appointed rate, or otherwise set compensation terms that are different from the Commission's terms. Those mediators may nevertheless be selected by the parties since a selected mediator may charge any amount that is agreed upon by the parties.

Can a mediation conference be postponed after it has been scheduled?

After a mediation conference is scheduled to convene on a specific date, it may not be postponed unless the requesting party first notifies all other parties of the grounds for the requested postponement, or without the consent and approval of the mediator or the Dispute Resolution Coordinator.

What are the current mediation fees in IC cases?

When the mediator is agreed to by the parties, compensation will be as agreed upon between the parties and the mediator. Our firm's current mediation fees are $320/hour (2 hour minimum) and an Administration fee of $320. If mediation is canceled within 14 days or less, a fee of $320 will apply in addition to the administration fee. There are no applicable fees for rescheduling mediation.

If the mediator is not agreed to by the parties, and is then appointed by the Commission, the mediator will be paid by the parties at the rate of $150.00 per hour for mediation services at the conference. In addition, the parties will pay to the mediator a one time, per case administrative fee of $150.00. The mediator’s administrative fee will be paid in full unless, within 10 days after the date that the mediator has been appointed, written notice is given to the mediator and the Dispute Resolution Coordinator that the issues for which a request for hearing had been filed have been fully resolved or the hearing request has been withdrawn. In cases involving appointed mediators postponement fees are set at $300.00 if a mediation conference is postponed without good cause within seven days of a scheduled conference, and $150.00 if a mediation conference is postponed more than seven calendar days prior to the scheduled date.

Which party is responsible for paying the mediation fees?

Unless otherwise agreed to by the parties or ordered by the Commission, costs of the mediated settlement conference are allocated to the parties as follows: one share by plaintiff(s); one share by the workers’ compensation defendant-employer or its insurer, or if more than one employer or carrier is involved, or if there is a dispute between employer(s) or carrier(s), one share by each separately represented entity; one share by participating third-party tort defendants or their carrier, or if there are conflicting interests among them, one share from each such defendant or group of defendants having shared interests; and one share by the defendant State agency in a State Tort Claims Act case. Parties obligated to pay a share of the costs will be responsible for equal shares; provided, however, that in workers’ compensation claims the defendant will pay the plaintiff’s share, as well as its own, and the defendant will be reimbursed for the plaintiff’s share when the case is concluded from benefits that may be determined to be due to the plaintiff, and the defendant may withhold funds from any award for this purpose.

Are the parties obligated to pay a fee if they request a substitution of mediators after the Commission has already appointed someone to mediate the case?

If the parties request the approval of a selected mediator after the appointment of another mediator by the Commission, and the substitution of mediators is allowed, the Commission will generally require the parties to pay the administration fee owed to the mediator initially appointed by the Commission.

Is the mediator required to file a report of mediator in all cases?

The mediator must file a report of mediator with the Dispute Resolution Coordinator in all cases, even if no conference is held. The mediator should not attach a copy of the parties' memorandum of agreement to the report.

Other than the ICMSC Rules are there any standards of conduct applicable to mediators who are mediating IC cases?

All mediators conducting mediation conferences pursuant to the ICMSC Rules must adhere to the Standards of Professional Conduct for Mediators adopted by the North Carolina Dispute Resolution Commission.

To what person should a party address motions while a case is in the process of being mediated?

Motions related to the ICMSC Rules should always be addressed to the Dispute Resolution Coordinator, but all other motions (including motions related to discovery, Form 24 matters and medical issues) should be addressed to the Industrial Commission's Executive Secretary, unless the case has already been assigned to a Deputy Commissioner or a Full Commission panel, or the motion is otherwise subject to the Commission’s expedited medical motions procedures.