Court Tweaks Procedure for Setting Post-discovery ADR

By Chief Judge Kenneth M. Switzer, Nashville

Great news: There’s one less document to file when preparing for trial in the Court of Workers’ Compensation Claims.

As of Oct. 1, you no longer need to file an amended Petition for Benefit Determination (PBD) to get the ball rolling on post-discovery mediation.

For a little background, remember that by statute, the Court obtains its authority to grant or deny temporary or permanent benefits only after a mediator files a Dispute Certification Notice (DCN). When a case is headed toward a compensation hearing, the Court requires post- discovery mediation. This mediation results in either a settlement or the issuance of a final DCN listing the issues the judge must decide.

For the past three years, we have issued scheduling orders requiring the parties to file a second PBD, which provided the impetus for Mediation and Ombudsman Services of Tennessee to assign a local mediator to the case.

But almost from the beginning, we experienced problems with this process. Parties were waiting until the deadline for the mediation to occur to file their PBD, which left little or no time to conduct the mediation and issue a final DCN before the trial date.

To resolve this, we changed our orders to read that a party must file their PBD by a certain date and the mediation must occur by a certain date. I suppose we should’ve anticipated that some would forget this process altogether or think that the case would settle and there would be no need for a mediation. Over the last few months, we’ve had recurring issues with parties not following their scheduling orders on this point.

So, we are adjusting our process a bit to make this easier on all – lawyers, parties and judges.

In all scheduling orders issued after Oct. 1 where the judge sets a trial date, the judge will also set a date and time certain for a post-discovery mediation. This date will be chosen sufficiently in advance of the trial date to allow time to object to the contents of the DCN and have it amended if necessary.

You can help the judge by talking with the MOST scheduler in your local office to find available dates. Or, you can simply wait and let the judge pick the date during the telephone conference.

Now, don’t panic. We understand that unavoidable events might happen while preparing for trial – for example, the mediation date might end up being before the parties can take a crucial deposition. In these or similar circumstances, file a motion and ask to adjust the date of the mediation, explaining the reasons in the motion. But, please don’t ask the mediator to change the date without court approval first.

We think this will make matters run more smoothly. Also, eliminating the second PBD is one less piece of paper to file, saving you a little time.

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