I received a copy of MEAC opinion 2013-001. The mediator who requested that opinion is employed in a court mediation program. She or he asked the Mediator Ethics Advisory Committee (MEAC) about parties or attorneys who attend mediation telephonically. The Mediator explained that she/he experiences situations after such mediations where the mediation agreement is transmitted to the telephonic attendee, with the expectation it will be executed and returned in compliance with the Court order that allowed telephonic appearance.
However, there are instances in which the agreement is not returned as expected. The inquiring Mediator inquired whether this failure to return the agreement could be reported to the Court. The Mediator questioned whether this failure to comply with the Court’s order could be reported to the Court by the Mediator or the “Court mediation unit.” The Committee concluded that the failure to return the documentation is “non-verbal conduct intended to make an assertion” and is protected by the mediation confidentiality.
The context here includes a desire of the Court to know who is not complying with its orders, and thus perhaps a desire of the Court to thereafter use that information in deciding who might receive permission to appear telephonically in the future.
In our system, the Judge of Compensation Claims does not decide who may appear by telephone. Rule 60Q6.110(5) provides “No party shall appear at the mediation conference by telephone unless such appearance is approved in advance by the mediator. Any party appearing by telephone has stipulated to be bound by that party’s attorney of record’s signature on the mediation report.” Thus there is no reason in our system for there to be any communication for the purpose of affecting the outcome of future requests for permission to attend by telephone. This is a marked distinction of our system.
Additionally, we need a mediation report uploaded to our case docket. Our rules provide that the preparation of a report is mandatory, 60Q6.110(7): “Immediately following the conclusion of a mediation conference in an open OJCC case, the mediator, whether state, adjunct, or private, shall prepare a report stating which issues or claims in dispute are resolved and which remain unresolved, and whether the parties completed a pretrial stipulation.” This report shall be uploaded to our case docket, the responsibility therefore being upon the injured worker, 60Q6.110(7): “The claimant shall file with the judge within five business days of the mediation conference the mediator’s report and mediation settlement agreement, if any, together with any pretrial stipulation executed by the parties.”
So, if an agreement is sent to a party or counsel for signature, and not timely returned, an OJCC mediator should file a report of impasse, which is essentially what the MEAC opinion refers to as “no agreement” reported “to the Court.” This report of “no agreement” is all that need be filed. That report should prompt the Judge of Compensation Claims to take other action on the case. If one of the parties alleges that they did have an agreement, despite some other party’s failure to sign the agreement, then the aggrieved party can file their motion to enforce with the Judge and proceed to prove their case.
According to the MEAC opinion, communicating to the JCC that the mediator is “waiting for signature” violates confidentiality as does communication that the “documents were not returned.” Therefore, our mediators will not make these communications, but will simply report that there is “no agreement,” or impasse.
The opinion also encourages that mediators explain this to the parties at the outset of mediation, in the “orientation” stage. In this way, everyone will be conscious of the result which will follow any such failure to sign and return the mediation agreement. It is hoped that having read this blog post you will be better prepared for mediation in this context.
