Okla. Stat. tit. 85 § 53

Current through Laws 2024, c. 453.

Rule 53 - MEDIATION PROCESS AND FEES

A. General: Mediation in workers' compensation is governed by 85 O.S., Section 321, Rule 52, and this rule. Mediation refers to the process of resolving disputes with the assistance of a mediator, outside of a formal court proceeding. All workers' compensation issues may be mediated except for disputes related to medical care under a certified workplace medical plan or claims against the Multiple Injury Trust Fund. Mediation may be by mutual agreement of the parties or pursuant to Court order. Recommendations of a mediator are not binding unless the parties enter into a settlement agreement. General information about mediation in workers' compensation may be obtained from the Workers' Compensation Court Counselor (Ombudsman) Department.

B. Mediation Without Court Order: Unless ordered by the Workers' Compensation Court, mediation shall be voluntary, and shall not be conducted without the consent of the parties. Parties to a workers' compensation dispute subject to mediation may mutually agree to mediation by a mediator certified by the Workers' Compensation Court, or may schedule and proceed with mediation independent of the Court's processes and with a mediator of their choice. A party may initiate voluntary mediation with a Court certified mediator by submitting a request for mediation in writing to the Court Administrator. The Administrator shall contact the opposing party to ascertain whether or not there is an agreement to mediate. Failure of the opposing party to respond to a request for mediation within fifteen (15) days of notification thereof shall be deemed a refusal to mediate. If mediation is agreed to, the parties shall enter into and submit to the Administrator a signed, written consent to mediate. If the parties are unable to agree upon a mediator from the Court's list of certified mediators, the Administrator shall assign a certified mediator.

C. Mediation Pursuant to Court Order: The Court may order mediation on its own motion, upon a party's Form 13 request for mediation order, or by agreement of the parties. If mediation is determined to be beneficial to a prompt and efficient resolution of the claim, the Court shall appoint the mediator by Court order.

D. Effect on Claim: A mediation conference shall not be cause for the delay of other proceedings in a case pending before the Workers' Compensation Court, including the completion of discovery, and the filing or hearing of motions, except by order of the Court. Mediation does not toll any limitations period found in 85 O.S., Section 318.

E. Scheduling: The mediator shall contact the parties and schedule a mediation session within thirty (30) days of the order of appointment, unless otherwise agreed to by the parties. The purpose of the initial mediation session shall be for exchanging preliminary information, setting further scheduling, and possible settlement. A mediator must schedule mediations for a minimum two (2) hour block of time, and may not schedule more than one mediation to take place at a time. Unless the parties and the mediator agree otherwise, the mediation conference shall be held at a time and location specified by the mediator. The mediator shall be responsible for reserving a place and making arrangements for the conference and for giving timely notice to all attorneys and unrepresented parties of the time and location of the conference. The mediator may recess the conference at any time and may set times for reconvening. No further notification is required for persons present at the recessed conference.

F. Pre-mediation Statement: Prior to the scheduled mediation session, the mediator may require each party to provide the mediator with a brief statement setting forth each party's position with regard to the issues that need to be resolved. At the direction of the mediator, the parties shall exchange the statements submitted to the mediator.

G. Conduct at Mediation: The mediator will conduct an orderly session. Parties, if represented, will give the representative attending the mediation session full settlement authority. Failure of a party to have full settlement authority or to participate in good faith in the mediation process shall be reported by the mediator to the assigned trial judge who may for good cause shown assess costs, attorney fees, and sanctions against the offending party. The mediator will be impartial in any mediation session, shall not coerce any party to resolve the dispute or disputes, or to settle the claim and shall avoid the appearance of coercing any party to do so.

H. Mediator Powers and Responsibilities: The mediator:

1. has a duty to be impartial and to advise all parties of any circumstances bearing on possible bias, prejudice or partiality;

2. does not have the authority to impose a settlement upon the parties, but shall assist the parties to reach a satisfactory resolution of their dispute;

3. may direct questions to any of the parties or their respective representatives to supplement or clarify information;

4. may obtain expert advice concerning technical aspects of a claim, whenever necessary and with the consent of the parties;

5. may conduct separate meetings ("caucuses") with each party, but shall not use these meetings as a time to coerce any party to settle. No information from a caucus may be divulged without permission of the party participating in the caucus; and

6. immediately following conclusion of mediation proceedings per subsection J of this rule, shall report the results of the mediation to the Court Administrator on a form prescribed by the Administrator. The report is required for all cases mediated by mutual agreement of the parties or pursuant to Court order, whether or not the parties reached an agreement.

I. Confidentiality of Proceedings:

1. Mediation sessions are private and shall not be recorded or transcribed in any way. Those in attendance may take notes during the mediation but all notes shall be collected by the mediator at the end of each session and held in a confidential file until the mediation process is completed. When the mediation process is completed, whether or not an agreement is reached, all notes and other writings produced while a mediation is in session, except the written agreement or memorandum of understanding, shall be destroyed.

2. The parties and one representative may attend mediation sessions. The claimant shall be in attendance unless all parties agree otherwise. A claimant may participate in mediation without counsel. Other persons may attend only with the consent of all parties and the mediator. Non-parties to the claim shall be advised by the mediator regarding confidentiality and are not allowed to participate in the mediation but may confer privately with their sponsoring party. All persons attending a mediation session shall respect and maintain the total confidentiality of the session. Attendance at a mediation session shall be in person, except as otherwise authorized in advance by the assigned trial judge, if any, or by agreement of the parties and the mediator.

3. Evidence of statements made and conduct occurring in a mediation conference shall not be subject to discovery and shall be inadmissible in any proceeding in the action or other actions on the same claim. However, no evidence otherwise discoverable shall be inadmissible merely because it is presented or discussed in a mediation conference.

4. No mediator shall be compelled to testify or produce evidence concerning statements made and conduct occurring in a mediation conference in any civil proceeding for any purpose, except for proceedings of the State Bar Association, disciplinary proceedings of any agency established to enforce standards of conduct for mediators, and proceedings to enforce laws concerning juvenile or elder care.

5. Statistical information regarding use of mediation in workers' compensation is subject to public disclosure.

J. Concluding Mediation: During the mediation conference, the parties may agree to resolve a particular issue, settle the entire claim or conclude the mediation without reaching an agreement or settlement. A mediation conference may be concluded by any party at any time, by the mediator if in the mediator's discretion it is necessary or an impasse exists, or upon an agreement being reached by the parties. If an agreement is reached, the agreement shall be reduced to writing by the mediator, then read and signed by the parties and their counsel, if any, and the mediator. If the agreement requires a Court order, the order must be presented for approval. Whether or not the parties reached an agreement or mediated by mutual agreement or pursuant to Court order, the mediator shall report the results of the mediation as provided in subsection H of this rule.

K. Fees: A certified mediator shall be entitled to a fee that does not exceed One Hundred Dollars ($100.00) per hour, or portion thereof, for mediation conferences, not to exceed a total fee of Eight Hundred Dollars ($800.00) for any mediation conference, even though the conference may recess and reconvene subsequently on one or more dates. The respondent shall pay the mediator Two Hundred Dollars ($200.00) on or before the initial mediation session. This payment shall be applied against the Eight Hundred Dollars ($800.00) owed for the mediation conference. If the mediation is concluded at the initial mediation session, the mediator shall bill the respondent the remaining balance of the total fee. If the mediation conference is recessed and reconvened by the mediator, the respondent shall pay the remaining balance to the mediator on or before the first reconvened date. The mediator shall disclose the mediator's fees to the parties when scheduling the initial mediation session. Mediators shall be entitled to reimbursement for mileage and necessary lodging expenses, limited to the provisions of the State Travel Reimbursement Act, 74 O.S. Section 500.1 et. seq. These reimbursements shall be in addition to the fees set forth in this subsection. Nothing in this subsection shall prohibit a mediator from charging a flat fee for a mediation conference, subject to the limits specified in this subsection.

Okla. Stat. tit. 85, § 53

Adopted by order of the Supreme Court, 1997 OK 130, eff. 11/1/1997; Renumbered from former Rule 49 by order of the Supreme Court, 2002 OK 6, eff. 3/1/2002; Renumbered from former Rule 38A and amended by order of the Supreme Court, 2006 OK 6, eff. 1/30/2006. Amended by order of the Supreme Court, 2012 OK 19, eff. 3/6/2012 .