Offices are consolidating, counties are moving, mediation is changing. "Lions, and Tigers, and Bears, Oh My!" (Wizard of Oz, MGM 1939).
I cannot get Carly Simon out of my mind this morning. For some reason, when I think of her, Brittany Murphy comes to mind. I enjoyed her version of Carly's Nobody Does it Better in Little Black Book (Columbia, 2004)(a movie featuring a cameo by Carly). But back to Carly in her Coming Around Again (Coming Around Again, Arista 1987):
I know nothing stays the sameBut if you're willing to play the gameIt's coming around again
So, we know nothing stays the same, and the fact is that those that read this blog tend to already be "playing the game," that is working in the Florida workers' compensation litigation system. So, buckle up, "it's coming around again." change that is, counties moving, offices consolidating, mediation evolving, paradigms shifting. In Florida workers' compensation, these are interesting times.
Change has been a persistence in the OJCC litigation system this century. In 2001, the Department of Labor ceased to exist and the OJCC moved to DOAH. In 2003 the first Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications were adopted (they have been changed and refined since). In 2005, the electronic filing paradigm came quietly to the scene, and in 2006 we began enthusiastically promoting it. In 2011, electronic filing became mandatory. Electronic service of documents through e-JCC came in 2013 for attorneys and evolved to carriers, and in 2019 to employers.
The first two decades of the twenty-first century have been largely about change. We have had some struggles with implementation, and we have all had to be flexible and patient. Who can forget those who swore they would never e-file? Or, all the e-JCC users that ignored our pleas to change their usernames and passwords? After the system transitioned in 2012 without them changing as told, there were hundreds of those users with password issues (our team worked tirelessly to get them back in the swing). In 2020 we were challenged with a pandemic, and this community pulled through that with flying colors. We have eliminated fax machines, adapted to Zoom, and professionally evolved in a multitude of ways.
I recently had an opportunity to speak at an Inn of Court (there are five workers' compensation Inns in Florida: Jacksonville, Orlando, Tampa, Miami, and Treasure Coast). As I told the Inn members, the success of this community through the SARS-CoV-2 pandemic is all on you. The judges, mediators, adjusters, doctors, risk managers, injured workers, and more that kept the litigation moving, adjusted to the challenges, shifted paradigms and persevered. As the world ground to a halt around us, Florida never faltered. As other litigation practices and adjudication systems stalled, locked up, or shut down, the Florida Comp litigation system never paused, faltered, or failed. I am immensely proud of everyone involved.
Yes, there has been change this century. As Carly says, "It's coming around again."
That is not to say that we know or can predict all that is going to change. We are in the process of consolidating offices and this will bring change. Part of that is in process and procedure, and change may persist as the impacts and effects of efforts require tweaks and adjustments. But, the remainder of this post is an attempt to forewarn you of what I do know as we near June, and the process begins in earnest.
New mediators are coming. On June 6, 2022, we welcome Charles Hill (former JCC in MIA) back to the OJCC as a mediator in South Florida (primarily attached to the FTL office). On June 10, 2022, we welcome Kate Marshman as a new mediator in Central Florida (she will be primarily attached to the TPA office). I use "attached" because the location of mediators is going to become less important very soon, read on.
We are offering all State mediators the opportunity to work remotely, and that is part of larger changes in the mediation process. This will mean that the case assignments will default to mediations being conducted by ZOOM. There has traditionally been one mediator per judge in a team process, each team responsible for largely the same case population. That will be ending as we transition. Mediators henceforth may be “in office,” “hybrid,” or “remote,” and that choice will be up to each mediator, not each judge.
The OJCC database program has thus far been assigning mediations by looking at the calendar of the mediator linked to the judge to whom a particular petition is assigned. Soon, the mediator will instead be assigned randomly with each new case (not "petition") assigned to the next mediator in the statewide rotation. Once a "case" is assigned to a mediator, the system will strive to assign future filed petitions to that same mediator, when possible. Once the mediator is assigned, the system will seek a mediation date with the 130 days, as it does now. However, if none is available, the system will strive to find a mediator who is available within that time period. The mediation work will be more equitably distributed among the various state mediators in the process. Lawyers and others will have to adapt to a wider variety of mediators, styles, and practices.
All state mediators will use the same daily schedule paradigm:
9:00
10:00
11:00
12:30
1:30
2:30
3:30
All of these times are in Eastern Time. This is a big adjustment for the Florida Panhandle, all times in those offices will also be in Eastern Time. So, parties, attorneys, and adjusters should all get used to the "one time zone" approach of this new era and be prepared to adjust if their personal ("local") time is Central (or Pacific, Mountain, you get the picture).
Each mediator will have an OJCC phone number that will reach her/him whether in the office or remote. This will assist with contact for the purpose of updating, rescheduling, and more. Mediations, however, will be by ZOOM. That platform has accommodation for attendees to merely dial in instead of using video. Whether a party or attorney is allowed to opt for audio-only (phone in) will remain in the discretion of the assigned mediator. Rule 60Q6.110.
If multiple case numbers are set for the same employee/employer, those should normally be set for one mediation instead of two or more. Practitioners and parties can help with this by being more attentive and consolidating cases whenever possible. When multiple cases are in litigation for the same injured worker, and the parties have not consolidated for convenience, the parties will have to attentive for the potential of multiple mediations scheduled with various mediators. There may be an increase in judges consolidating sua sponte.
Parties may continue to adjust their scheduling during the 40 days after petition filing (by contacting the assigned mediator to move an appointment prior to the notice being sent), Rule 60Q6.110(2)(a). It is important that they remember they ultimately can adjust their schedule early in the life of a PFB and avoid having to file continuance motions. Attorneys have had this option for years, and it is a woefully underutilized tool. You should try it.
Parties may ask for an "in-person" mediation (by motion, 60Q6.115(1)). If such a motion is granted, efforts may be made to transfer that particular mediation to a mediator that is geographically close to the venue (district) to which the case is assigned for trial. If parties do so (ask for live), and it is granted, then all attorneys in that instance will be obligated to attend that mediation live (not telephonically or by Zoom), and the attendance mode of others (employer, employee, adjuster) will remain in the discretion of the mediator. Where a district office is available for such a live mediation, the process will be familiar and simple. If a request is made in an area without a local district office, we will work together on those situations to accommodate all interests.
Some counties are being relocated to new district assignments in the consolidation, and the process has been concise and smooth. The finalization of most of this consolidation will come in June. June 10, 2022 will be the day that District MEL is consolidated into Districts WPB and DAY (the counties involved and thus cases will move before this). June 17, 2022 will be the day that District PSL is consolidated into District WPB (again county/case moves will be before). And, June 17, 2022 will be the day District LKL consolidates into District TPA.
As this occurs, there will no longer be staff in those (LKL, MEL, PSL) offices. There will be signage posted to alert customers to new locations, phone numbers, etc. There will be questions. There will be challenges. There will be opportunities. Direct your concerns and questions to me at david.langham@doah.state.fl.us and we will work through them (if your thought or questions is specific to a case, you must copy all parties appropriately to avoid ex parte communication). I will post in the announcement's post periodically as questions or issues are resolved and thus try to keep the public at large up-to-date on our progress and process.
I am convinced that this community will weather this change, and will thrive. You will adjust, adapt, and persevere as you have through so much change. You will perhaps look back and remember challenges and anxieties, but these are going to rapidly fade into memory as we progress through these changes. I look forward to your thoughts, your criticisms, and your suggestions as we build a better OJCC for you today and tomorrow.