By Judge Thomas Wyatt, Chattanooga
Did you know that television’s beloved Fred Rogers, a/k/a Mr. Rogers, was a Navy SEAL sniper in an earlier career? Or if you lose a tooth and place it in a glass of Coca-Cola at bedtime, by morning it will be dissolved? And if you go to New York City, beware of alligators living in the sewers.
These are three old yet popular urban legends. They’re (mostly) untrue, yet they proliferate.
How do urban legends like this get started? Someone says it; others repeat it; somebody challenges it; and the defense to the challenge has more conviction than the original statement. As we see over and over, if we hear something enough times, some people will believe it’s true. Sometimes, they’re just told in fun. But other times, urban legends can be dangerous.
Case in point: We in the Court of Workers’ Compensation Claims have begun hearing the urban legend that the purpose of post-discovery mediation is solely to certify issues for a compensation hearing.
Let me state this as clearly as I can: this legend is not true. I have never heard any judge or Bureau representative say or write such a thing. This is contrary to the clear language of the enabling law. Tennessee Code Annotated section 50-6-236(d)(1) (2019) reads, “[I]f the parties are unable to reach settlement of any disputed issues, the mediator shall issue a written dispute certification notice setting forth all unresolved issues for hearing before a workers’ compensation judge.” (Emphasis added.) This statutory enactment makes it clear that the primary purpose of post-discovery mediation is to give the parties and their attorneys a free and effective opportunity to resolve a case without bearing the risks, stress, and expense of trial. The certification of issues occurs only when the primary purpose of the statute doesn’t occur.
I wonder if the thought that post-discovery mediation is primarily for certifying issues is fueled by closed-mindedness of the parties or poor preparation by attorneys? The party or attorney operating under this misconception probably ignores the mediator’s pre-mediation request for information. Maybe the attorney has failed to properly prepare his or her client on the issues in the case and the benefit (and requirement) of good-faith participation in mediation. This attorney might want to blow through the mediation as quickly as possible by, for example, failing to be sufficiently prepared to participate during the important joint opening session. Finally, a party might think mediation is unnecessary because they’re right, and nothing can change their mind.
Before embarking on this type of conduct, the parties and their lawyers should consider Tennessee Code Annotated section 50-6-236(c)(1), which provides that a person representing both parties shall attend the mediation and “be prepared to mediate all disputed issues at the beginning of mediation and shall mediate all issues in good faith.” (Emphasis added.) Section 50-6-236(c)(2) empowers a mediator to comment in the dispute certification notice that a party and/or attorney didn’t mediate in good faith. Section 50-6-236(g) allows the workers’ compensation judge to assess attorney’s fees and costs against a party who doesn’t mediate in good faith by failing to produce requested documents, cooperate in scheduling (including failing to appear at a scheduled mediation), or provide a party in attendance with authority to settle.
Did you know…? The Bureau’s mediation program resolves by agreement eighty-two percent of all issues submitted to mediation.
(Source: BWC Annual Report 2020)
Hopefully, the parties won’t need the threat of sanctions to mediate in good faith. The Bureau’s mediators provide a service that is beneficial and essential to the parties and the system. Mediation is free and effective in resolving issues. The Bureau’s mediators are well-trained and genuinely interested in facilitating a fair, agreed resolution. Further, avoiding trial manages risk. Somebody loses every trial and, often, neither side gets exactly what they sought.
Whatever your preconceived ideas about mediation, please give it a fair shot through preparation and open-mindedness. Like surgery, trial is expensive and stressful. I don’t know anyone who wouldn’t avoid surgery if they could return to health without it.
Speaking of surgery, did you hear about the businessman who traveled to New York City? He carefully avoided the sewer gators, but when he stopped for a post-work coke, his tooth fell in it and promptly dissolved. Even worse, someone slipped something in his drink. He woke up in a bathtub with his kidney harvested. It was later sold on the black market! Ok, that’s another urban legend. But since it was a work trip, I wonder if it would be compensable?
For more information about Mediation and Ombudsman Services of Tennessee, click here.