Use of an Arbitrator to Resolve Difficult Cases
Many times it is useful for the parties to step outside the Workers’ Compensation Appeals Board and come up with a resolution utilizing either arbitration or mediation.
The Labor Code specifically states that there are several disputes which shall be submitted for arbitration. These include insurance coverage and right of contribution in accordance with Labor Code section 5500.5. Under Labor Code section 5275, those disputes must be submitted to an arbitrator. However, under Labor Code section 5275(b) by the agreement of the parties, any dispute can be submitted to an arbitrator. An arbitrator can be a less costly method of resolving things. You can also use an arbitrator as a mediator to help the parties come to an agreement in a matter.
Many times it is helpful for a mediator to be involved to help point out to the parties, the strengths and weaknesses of their case and help negotiate a reasonable resolution of the claim to the satisfaction of both parties.
This is especially beneficial when there are client control issues whereas the client does not trust or believe their attorney but is willing to listen to somebody acting as a Judge in a legal proceeding.
Sometimes there are cases where there can be large dollar swings depending upon how the issues are resolved. These lend themselves to a mediation so that you can avoid the risks and hazards of litigation. Also complex cases between multiple parties or situations where there is a personal injury claim ongoing as part of the workers’ compensation matter are best for mediation. Personal injury claims are quite often submitted to mediation and when that occurs it is generally beneficial to have the workers’ compensation matter resolved at the same time that the third party claim is.
It is important that your workers’ compensation attorneys be advised of this mediation process and be ready to participate in a meaningful fashion in order to reduce defense exposure and obtain successful resolutions. I think it would be a good practice to take a look at some of these complex cases which seem to be dragging on for years with no end in sight and getting those to an early resolution process such as an arbitration or mediation.