"Follow the law" or "Follow the rules." It is somewhat uncommon to receive a suggestion for a blog post that says "follow the law" or "follow the rules." For whatever reason, some lawyers resist the law and rules, seek relief inappropriately, and frustrate the litigation process.
"if additional petitions are filed after the scheduling of a mediation, the judge of compensation claims shall consolidate all petitions into one mediation."
The rules effectuate this statutory requirement in 60Q6.110(1):
"All petitions and claims pending at the time a mediation conference is held are deemed consolidated and will be mediated at that conference."
Nonetheless, there appear to be questions and concerns about the statutory and rule provisions. To be clear, the "shall" in section 440.25(1) means "shall." It is plain language.
This does not mean that the petitions will be consolidated if the parties agree, if it is convenient, or merely "if." The petitions filed prior to the mediation "shall" be consolidated "into one mediation."
The petitions that are "pending at the time a mediation conference is held ... will be mediated at that conference." This is not permissive - not "may"; it is a clear "will" be mediated. This means that the mediator has no alternative. Asking the mediator to ignore the law or rule is inappropriate and improper. Asking the mediator for relief is not supported by any statute or rule.
In one intriguing instance, a lawyer reportedly filed a petition during mediation. This is not a "best practice" and may be disruptive of the process. Nonetheless, if that occurs, the petition is "pending at the time a mediation conference is held."
The outcome? There is no statutory or rule mandate that any party agree to anything in mediation. Mediation is mandated by section 440.25, but that extends to (1) attending the mediation, (2) turning on the camera so the participant is visible, and (3) hearing the mediator out regarding the process and purpose of mediation. Mediator Ethics Advisory Opinion 2021-010.
No party is compelled to reach an agreement or to concede to any degree in mediation. Certainly, the process is incredibly effective and the chances of resolution diminish when any party is afforded limited or no time to consider claims, defenses, evidence, arguments, or implications. Short-notice PFB filing may fail to achieve resolution or progress, as could a short-notice Response or other addition of defenses.
The outcome of a short-notice effort may be an impasse. Unfortunate, but true.
Or, the parties may find ground worthy of their attention and make progress on issues that have pended longer. They may agree to reconvene on unresolved issues, short-noticed or not.
In other instances, the short notice may not derail or delay, and the mediation may lead to an overall resolution, despite the challenges. The potential outcomes do not change because of short notice, but the probabilities may.
In short, the potential outcomes remain on the table in any event. The appearance of an unexpected issue(s) or perspective is not novel, and it does not bind or compel agreement. Nonetheless, the statute and rules require that the issues be mediated despite the short notice.
Questions of professionalism, zealousness, and good faith are for another day and may have implications beyond this case or this mediation.
That said, there are no exceptions stated in the statute or rules. The provisions are clear and unequivocal. If there is some reason or circumstance that requires adjustment or change, the parties can seek "relief" from the assigned judge under Rule 60Q6.115(1)("Any request for an order or for other relief shall be by motion.").
Nonetheless, it is inappropriate to seek relief from the mediator. There is no rule that allows a party to seek an order or relief from a mediator. This is true in the context of ignoring this statute and rule. It remains so in other contexts, such as exceeding the 130-day statutory requirement. Rule 60Q6-110(2)(a).
The path is reasonably simple. Follow the law, follow the rule, or both. Mediate the pending petitions. Don't ask mediators to exceed their role, to ignore the law, or to break the rules.
