Department of Labor and Regulation

Title - Workers' Compensation

What to Expect in Mediation

If you are thinking about mediating a South Dakota workers' compensation claim or have already requested mediation, the information below explains how mediation works and provides suggestions to help you prepare for the process.

What is mediation?

Mediation is an informal, voluntary meeting between parties to help settle workers' compensation disputes. The Department of Labor and Regulation (DLR) provides this service at no cost to you. The mediator does not take sides, and does not control the terms of any agreement that might be made. The meetings are by phone, face to face at a DLR local office, or a blend of both. Find a DLR local office near you.

How do I get a mediation set up?

Either party can request mediation. Print, complete and send us a Mediation Request Form found on our Workers' Compensation Forms page or available at any DLR local office. We cannot make anyone mediate, but most parties do. If the other party agrees to mediate, a DLR staff person will contact you and the other side to schedule the meeting with the mediator. The meeting usually happens within two to four weeks after you request it.

How do I get ready for mediation?

Before your mediation, you will want to gather some documents and other important information.

Medical Reports/Opinions. Most parties to mediations provide too much or too little information. We are not doctors – showing us a stack of medical test results, treatment notes, x-rays, etc. will not help. If the claim was denied because it was not work-related, we need to see any medical report or opinion directly talking about that. If the other side has not seen it, get them a copy before the mediation (and talk to them about it – you may not need us after that).

Bills. If medical bills are not being paid, be able to tell us the dollar amount unpaid. If other insurance has paid part of the claim, the workers' compensation insurer will need to know how much. The worker must provide this because the insurer cannot get it directly. (The best way to do this is to give the workers' compensation insurer a copy of the other insurance company's Explanation of Benefits (EOB) form.)

Other people, if you think they will be helpful. Anyone can participate in mediation; we have had doctors, lawyers, clergy, relatives, friends, private investigators and consultants. The only rules are they must be courteous and helpful in resolving the issues.

Be able to answer some basic questions. What are you and the other side arguing about? Pretend a person with no direct interest in your problem is talking to you – can you explain to that person not only your side of the issues, but the other side's? Can you come up with a way to resolve the problem that is different from what you are currently asking? (You would not be getting us involved if the other side could accept what you have already asked.) Is it fair for you to think that new idea has a chance of being accepted by the other side? Why do you need whatever you are asking for? What is the best thing that could happen if the other side were not to agree to your proposals? Knowing and sharing these things can help you communicate what you need and find ways to solve your problems.

What happens in mediation?

The meeting takes an average of 45 minutes. The DLR mediator will begin by explaining the process and having the parties identify the issues. If legal issues are involved, the mediator will explain his or her understanding of DLR's interpretation of those laws, and point out the strengths and weaknesses of each side's position based on that interpretation. The mediator's explanation is not an official DLR opinion. The parties then explore settlement options. Parties are given the opportunity to speak without interruptions. Any comments are to air out and help resolve issues, not engage in personal attacks. A party may discuss issues with the mediator privately. Those discussions are not shared with the other side unless the party allows it.

Mediation is not a hearing. There are no evidence rules or required procedures, and the mediator is not called upon to give opinions about who is telling the truth, which doctors are better than others are, and who is right or wrong. Because mediation works best when parties communicate freely, these kinds of things get in the way of the mediation process and are discouraged.

What happens if we do not reach agreement?

DLR sends out a form letter with an explanation of what happened (for example, "The parties' dispute remains unresolved."). State law prohibits the mediator from revealing details mentioned in the meeting. The parties can ask DLR to conduct additional meetings if they feel it would lead to settlement.

What happens if we reach agreement?

The parties write the agreement, sign it and send it to DLR for final approval. If the parties have questions about the meaning of agreement language, the mediator can explain (without giving advice about whether the party should agree to the language). There is no binding bargain until DLR approves the deal. Once it is approved, it has the same effect as DLR issuing an order after a hearing.

back to top

Disclaimer

The information provided on this Web page should in no way be considered legal advice. For specific information about your legal rights, you should consult your personal attorney. If you have a general question, contact us.

South Dakota Department of Labor and Regulation
Division of Labor and Management
700 Governors Drive
Pierre, SD 57501
Phone: 605.773.3681
email

 


Marcia Hultman, Secretary
700 Governors Drive
Pierre, SD 57501-2291
Tel. 605.773.3101
Fax. 605.773.6184