Ala. Admin. Code r. 480-5-1-.08
Current through Register Vol. 43, No. 1, October 31, 2024
Section 480-5-1-.08 - Policies And Procedures For Mediation Of Workers' Compensation Disputes By An Ombudsmen(1) Agreement of Parties - Mediation is a process where the parties to a dispute, with the help of an impartial third party (the "mediator"), attempt to work out a mutually satisfactory settlement of the dispute. Mediation is a process whereby either party may terminate the mediation at any time. Neither the Department of Industrial Relations (DIR) nor any mediator has the power of authority to force the parties to mediate or to accept an agreement or settlement.(2) Initiating the Mediation Process - To begin the mediation process, either party should contact the DIR. When all parties have acknowledged a willingness to mediate, they will then enter into an Agreement to Mediate, and an Ombudsmen shall inform all parties of their rights and responsibilities under the Workers' Compensation Act of Alabama.(3) Appointment of a Mediator - Following an agreement of the parties to mediate, DIR will select a mediator from its ombudsmen. No Person shall serve as a mediator in any dispute in which that person has any financial or personal interest in the result of the mediation. Prior to accepting an appointment, the prospective mediator shall disclose any circumstances likely to create a presumption of bias or interest in the outcome of the proceedings, or prevent a prompt meeting with the parties. The fact that the selected mediator may already have some familiarity with the case through work as an ombudsmen shall not disqualify the ombudsmen as a mediator unless either party objects to such mediator. In the event that a mediator is objected to, the DIR will select a new mediator from its ombudsmen. If a mediator is not able to continue the mediation process once started, the DIR will select another mediator from its ombudsmen.(4) Scheduling - Upon appointment, the mediator will work with the parties to establish the time and location of a mediation session. Additional mediation sessions may be scheduled as agreed by the parties and the mediator.(5) Conduct of Mediation Sessions - Prior to the first scheduled session the mediator may require the parties to provide the mediator with a brief memorandum setting forth the party's position with regard to the issues that need to be resolved. At the direction of the mediator, the memorandum may be exchanged by the parties.(a) At the first session, the parties shall produce all information reasonably required for the mediator to understand the issues presented. The mediator may require either party to supplement this information.(b) At the mediation session(s), the mediator will conduct an orderly settlement negotiation. Parties shall be represented by a person with authority to settle the case. The mediator will be impartial in such proceedings and has no authority to force the parties to agree to a settlement. The mediator may conduct separate meetings (caucus) with each party in order to improve the mediator's understanding of the respective positions of each party or to move the mediation process forward. The mediator shall not disclose to the adverse party confidential information provided by a party unless that party authorizes the disclosure.(6) Authority of Mediator - The mediator does not have authority to impose a settlement upon the parties, but shall attempt to help the parties reach a satisfactory resolution of their dispute. The mediator may direct questions to any of the parties or their representatives to supplement or clarify information. Whenever necessary, the mediator may obtain expert advice concerning technical aspects of the dispute. Arrangements for obtaining such advice shall be made by the mediator or by the parties. The mediator is authorized to end the mediation whenever, in the judgment of the mediator, further efforts at mediation would not contribute to a resolution of the dispute between the parties.(7) Privacy - Mediation sessions are private. The parties and their representatives may attend mediation sessions. Other persons may attend only with permission of the parties and with the consent of the mediator.(8) Confidentiality - The mediator shall not divulge information disclosed to the mediator by the parties or by witnesses in the course of mediation. All records, reports, or other documents received by a mediator or prepared by the mediator while serving as a mediator shall be considered confidential. The mediator shall not be compelled in any adversary proceeding or judicial forum to divulge the contents of such documents or the fact that such documents exist or testify in regard to the mediation. (a) The parties recognize that mediation sessions are settlement negotiations and that all offers, promises, conduct and statements, whether written or oral, made in the course of the proceedings are confidential and inadmissible in any litigation or arbitration of their dispute, including, but not limited to: views expressed or settlement suggestions made by the parties or the mediator; admissions made by any party; responsibility for termination or failure of the mediation process; or the fact that one party backed out of a settlement before it became binding on the parties. By participating in the mediation process; or the fact that one party backed out of a settlement before it became binding on the parties. By participating in the mediation process, the parties agree not to subpoena or otherwise require the mediator to testify or produce records, notes or work product in any adversarial proceedings between the parties. Any party that attempts to obtain such confidential information shall, and hereby agrees to, reimburse the mediator and the DIR for all fees and costs associated with resisting said attempts. However, evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation session.(b) In the event the parties do reach a settlement agreement during the mediation which becomes final and binding in accordance with the provisions of Section 39 of Act No. 92-537, that settlement agreement will be admissible in court or arbitration proceedings to enforce it.(9) No record - There shall be no formal record made of the mediation proceedings and no recordings or stenographic records shall be made.(10) Counsel - The parties may be represented by an attorney at any stage of the mediation process. An employee shall be advised at the first mediation session of his or her right to be represented by counsel by a writing which shall be notarized.(11) Settlement - If a dispute is resolved in whole or in part during mediation, the ombudsmen shall reduce the agreement in writing, and the ombudsmen and each party shall sign the agreement. The signed agreement shall be binding on all parties unless within 60 days after the agreement is signed a court of competent jurisdiction relieves all parties of the effect of the agreement because of fraud, newly discovered evidence, or other good cause. At the end of said 60 day period, the agreement shall be final and irrevocable. At any time during the 60 day period, the parties may present the settlement agreement to a court of competent jurisdiction for approval in accordance with the Workers' Compensation Act of Alabama. (a) At the first mediation session the employee shall be advised by the ombudsmen in writing which is notarized that he or she have a right to have any settlement or his or her claim reviewed by a court of competent jurisdiction at any time within 60 days after the date of the settlement and that at the end of 60 days the settlement shall be final and irrevocable.(12) Termination - The mediation shall be terminated by the parties reaching a settlement; by a declaration by the mediator to the effect that, in the opinion of the mediator, further efforts at mediation are no longer worthwhile; or by a declaration by any party, at any time, that the mediation proceedings are terminated. Author: Randy Richie, Workers' Compensation Division
Ala. Admin. Code r. 480-5-1-.08
Emergency Rule effective January 25, 1993. Permanent New Rule: Filed April 13, 1993; effective May 17, 1993.Statutory Authority:Code of Ala. 1975, § 25-2-2(6).