Virginia's Judicial System

The Virginia Workers' Compensation Commission's Mediation Program

In the fall of 1998, the Virginia Workers' Compensation Commission conducted an intensive audit of its primary business processes. The objective of the audit was to enhance internal efficiency by identifying processes and process components that unnecessarily increase claims handling time. The study focused on the Commission's claims examination and adjudication practices, two core functions.

These two business functions are intimately connected. The claims examination unit processes applications and initially identifies contested issues that may form a basis for adjudication. Following examination of these functions, the Commission recognized that increasing claim volume was leading to docket congestion and concomitant delays in the claims department and on the adjudication dockets. The Commission's self-study identified a number of options for addressing these concerns. At the top of the list of possible solutions was creating a mediation program.

In evaluating this possibility, we surveyed workers' compensation mediation programs in a number of other states. We concluded that voluntary mediation using a primarily facilitative model of mediation was best suited to our needs. This model was selected as most consistent with the three program goals we identified:

  • Increasing customer satisfaction by expediently resolving contested issues with solutions that are pleasing to all parties;
  • Alleviating docket congestion by removing appropriate cases early in the adjudication process; and
  • Improving communication among the parties and between the parties and the Commission.

Initially, six Commission employees received mediation training. The Commission's mediators are currently three staff attorneys, the commission's ombudsman and the claims director, both of whom are also attorneys, and the claims manager. The ombudsman coordinates the mediation program. Each mediator contributes his or her own style in the evolution of a unique mediation technique specially tailored to meet the needs of parties before the Commission.

Our model relies heavily upon the parties' right to self-determination and the mediator's specialized knowledge of workers' compensation law. Accordingly, the mediator's role is primarily to initiate and facilitate dialogue between the parties on the contested issue. However, because parties perceive the Commission mediator as having expertise in the applicable substantive law, the parties may occasionally ask the mediator's opinion on a legal issue. Similarly, the parties may look to the mediator for guidance in formulating potential solutions most consistent with Commission precedent. Our mediators attempt to augment the resolution process by providing guidance where appropriate while ensuring that the parties are creating their own solutions and voluntarily agreeing to them.

This model has proven to be highly effective in meeting the needs of parties appearing before the Commission. In all of the cases that the Commission mediated in the first quarter of 2000, at least one of the pending issues was resolved. The end result in all cases was either removal of the entire matter from the hearing docket, or a dramatic streamlining of cases continuing on for adjudication. Additionally, all parties responding to the Commission's post-mediation survey indicated that they were satisfied with the process and that they would use mediation again. This empirical data strongly supports our belief that the mediation program is responsive to the needs of our customers, and that it is effective in achieving its goals.

The mediation process is intended to dovetail with the dispute resolution services provided by the Commission's ombudsman, a position created in October 1999. One of the primary functions of the ombudsman is to work with the parties to help them informally resolve their disputes. Files are brought to the ombudsman's attention either by Commission personnel or by communication from the parties. Frequently, the ombudsman's first encounter with a particular dispute is through a request for mediation. The ombudsman attempts to work with the parties to resolve the dispute throughout the process of setting up the mediation.

This may consist of something as simple as facilitating an exchange of information. Many contested issues are resolved in this way before the mediation is even scheduled. The result is a synergistic joining of services that has proven to be highly effective in early resolution of disputes.

The Commission continues to define and hone its mediation program as the program matures. In doing so, we have deemed it best to take a flexible approach to assure responsiveness to the changing needs of our customers. We look forward to further enhancements in our dispute resolution services in the near future.

Sam Lupica, VWC Ombudsman, graduated from University of Richmond Law School. After graduation, he served as law clerk to one of the judges on the Virginia Court of Appeals. He was in a subsequent private practice until joining the Commission in 1998. (804) 367-8269

This page last modified: February 26, 2001