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Mediation Within the Workers Compensation System

Resolve your disputes in a non-adversarial atmosphere

History
Mediation within the workers compensation system was legislatively created in 1996 (K.S.A. 44-5,117). Initially, the mediation process required that all parties participate in person. Due to the burden created by this requirement, K.S.A. 44-5,117 was amended in 1998 to allow mediation by video conferencing.

What is mediation?
Mediation is a means of resolving disputes in an informal and non-adversarial atmosphere. The issues that can be mediated are not restricted to medical or temporary total disability benefits.

The parties to a dispute use a neutral third party to facilitate discussion. The mediator’s job is to assist the parties in identifying the issues in dispute and establishing common goals. The mediator has no decision-making authority or interest in the outcome of the dispute.

The key to mediation is self-determination or allowing the parties to work through their dispute and create their own agreements.

Who are the mediators?
The mediators are employees of the Division of Workers Compensation who have received special training in the mediation process. These mediators meet or exceed the requirements established by Kansas law and the Kansas Supreme Court. Mediators receive training in conflict resolution techniques, neutrality, agreement writing, ethics, role playing, communication skills, case evaluation and the laws governing mediation.

How does mediation work?
Mediation is not mandatory or a prerequisite to a hearing but can be utilized at any point during the workers compensation process. Mediation works only if the parties are willing to participate and discuss the issues in good faith. Without full participation and good faith intentions by the parties, success through the mediation process is limited.

The mediation conference begins with the parties in a joint session. The parties are introduced and the rules of mediation are explained. Workers Compensation mediation conferences are conducted pursuant to the Dispute Resolution Act, K.S.A. 5-501, and amendments thereto.

To begin the mediation conference, the mediator gives one party the opportunity to speak without any interruptions. The other party is shown the same courtesy.

Upon completion of this initial phase, the parties, with the assistance of the mediator, will begin identifying issues and exploring all possible options to resolve their dispute. At times, the parties may be separated by the mediator or by the request of either party to discuss their respective case. This technique is known as caucusing. Although caucusing is not used in every mediation conference, it is available to all the parties. The purpose of caucusing is to gather or share additional information which the party may be reluctant to express in front of the other party, or perhaps to discuss possible resolution options.

What happens if no agreement is reached?
Mediation does not promise to resolve all disputes, but it does provide a forum for sincere and meaningful discussion on the issues. If no agreement is reached, only that fact is made part of the docket file. Thus, neither party is prejudiced in later hearings.

What happens if an agreement is reached?
If an agreement is reached, the mediator will put the agreement in writing. Thereafter, the agreement may be forwarded to an administrative law judge (ALJ) for approval. If so, upon approval by the ALJ, the agreement will have the same force and effect as an agreed order or award.

What does mediation cost?
The Division of Workers Compensation promotes and encourages mediation in workers compensation cases by offering professional mediation free of charge.

Professional mediators elsewhere charge an hourly fee that can be in excess of $100, depending on the complexity of the dispute.

With nothing to lose and much to gain, mediation through the Division of Workers Compensation is a cost effective way of resolving disputes within the workers compensation system.

For additional information or to request or schedule a mediation conference, write or call:

Public Resource Section: Mediation Unit
Kansas Department of Labor
Division of Workers Compensation
401 SW Topeka Blvd., Suite 2
Topeka, KS 66603-3105

Phone: (785) 296-4000 option 8, then 6 or (800) 332-0353, option 5
Email: wc@dol.ks.gov