Monday, September 10, 2018

New Book from the American Bar Association, Addressing Mediation, Features Workers' Compensation Chapter by Duff & Torrey


            Workers’ compensation practice, as in many other areas of law, has been impacted significantly by the alternative dispute resolution (ADR) movement of the last few decades. Judge David Torrey and Professor Michael Duff (writers of this blog) explore this issue in a chapter of the new ABA book, Resolving Insurance Claim Disputes Before Trial (2018) (edited by Timothy H. Penn & Judith F. Goodman).

            The chapter reviews this growth of workers’ compensation ADR, summarizes the law and practice of mediation and other ADR devices in select states, and explores practical considerations which are essential to the workers’ compensation field. The chapter concludes with a table setting forth the authorities supporting ADR in the various states.

           The authors do not, in detail, discuss the fine mechanics of ADR – as to such mechanics, the authors recommend another superlative American Bar Association book, Representing Clients in Mediation (2013), by Florida mediator Spencer Punnett.

            Of course, an irony exists in this discussion. In many respects, workers’ compensation itself represented the first national experiment in alternative dispute resolution. In the early twentieth century, of course, a broad national consensus existed that the formal tort litigation system was not working well for employees or employers. In order to address the perceived litigation dysfunction, stakeholders participated in development of a state-based no-fault workers’ compensation system as an alternative to tort litigation. That system is now roughly a century old in most states.

            Despite the noble intentions of the founders of workers’ compensation statutes, adjudication in the system has become more complex, even though the system operates primarily in state administrative agencies meant to provide simplified processes. Because of this complexity, and because of increasing costs,* workers’ compensation writ large has joined the ADR movement, and ADR structures – most prominently, mediation – have become much more prevalent than in the past.  Indeed, by 2014 the influential Chief Florida Judge, David Langham, declared, “There is a developing trend in workers’ compensation. Mediation is becoming the norm rather than the exception.” He echoed the assertions of a Washington, D.C. judge who, in 2010, authored a meticulous review of “revitalized” mediation programs in several states.  These assertions ring true, as borne out by recent events. The new Tennessee administrative court system features mandatory mediation, and Connecticut and Rhode Island have just recently instituted voluntary mediation programs as well.    

            Of course, a properly-functioning state agency has, for a century, been said to be one which is pro-active in avoiding disputes in the first place.  (The scholar Timothy Schmidle suggested this point to me at the outset of the project.)  Under this advocacy, agencies monitor carrier conduct and compliance and aggressively provide information to injured workers. Were this plan to work, both litigation and ADR (which is the subject of the Torrey & Duff chapter) could be avoided. 

            A modern classic of this advocacy is John F. Burton, Jr. & Monroe Berkowitz, Paean to an Active Workers’ Compensation Agency, John Burton’s Workers’ Compensation Monitor, p.1 (Sept.-Oct. 1989) (stating, among other things, “The prevalence of litigation … is, in our view, a reflection of how poorly the workers’ compensation agencies are doing their job.”).  Maine is a jurisdiction (among several) which maintains such a system, employing claims resolution specialists to “troubleshoot” in advance of disputes.  Pennsylvania and Wisconsin, meanwhile, maintain telephone helplines to answer injured worker and employer questions.  Kentucky, for its part, employs ombudsmen.  Texas, meanwhile, maintains an Office of Injured Employee Counsel. See  



 * Writers Orin Kramer and Richard Briffault, in the insurance industry tract Workers Compensation: Strengthening the Social Compact, p.67 (I.I.I. Press 1991), encouraged state administrators to reform dispute resolution via “mandatory settlement conferences, mediation, and arbitration,” in order to reduce costs. 

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