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2011-09-22-01

The Supreme Court of South Carolina

Re: Pilot Program for the Voluntary Mediation
of Workers' Compensation Appeals


ORDER


Pursuant to the provisions of Article V, §4 of the South Carolina Constitution, the Court adopts the attached procedures and forms for the Pilot Program for the Voluntary Mediation of Workers' Compensation Appeals.  This Pilot Mediation Program may be implemented by the Court of Appeals.

The program has the support of the Commission on Alternative Dispute Resolution.  The Pilot Program shall be effective November 1, 2011, through November 1, 2014. The Commission on Alternative Dispute Resolution shall provide a report to the Supreme Court of South Carolina at the end of the pilot period which evaluates effectiveness of the Pilot Mediation Program and recommends further action.

IT IS SO ORDERED.

s/Jean H. Toal                                    C.J.

s/Costa M. Pleicones                        J.

s/Donald W. Beatty                            J.

s/John W. Kittredge                           J.

s/Kaye G. Hearn                                 J.

September 22, 2011
Columbia, South Carolina


PROCEDURES FOR THE PILOT PROGRAM FOR THE VOLUNTARY MEDIATION OF
WORKERS' COMPENSATION APPEALS

1. Purpose. The purpose of the Pilot Program for the Voluntary Mediation of Workers' Compensation Appeals is to afford a meaningful opportunity to the parties in appeals from decisions of the Workers' Compensation Commission to achieve an efficient and just resolution of their disputes in a timely and cost-effective manner as early in the appellate process as possible.  Mediation takes place early in the appellate process in order to save the parties the time and expense of an appeal and to give the parties an opportunity to find creative solutions to the dispute.

2. Scope. All appeals to the Court of Appeals from final decisions of the Workers' Compensation Commission, whether directly from the Commission or from the circuit court, may be submitted to voluntary mediation pursuant to the Pilot Program.

3. Notice to the Court. When an appellant files the notice of appeal in a workers' compensation matter, the Clerk of the Court of Appeals shall notify the appellant(s) and respondent(s) that the case is eligible for mediation under the Pilot Program.  Parties desiring to engage in voluntary mediation shall file a notice of consent to mediate requesting suspension of the appeal with the Clerk of the Court of Appeals prior to the expiration of either: (1) the time to order the transcript pursuant to Rule 207, SCACR; or (2) the time to file and serve the appellant's initial brief and designation of matter pursuant to Rules 208 and 209, SCACR.  Where the parties do not file a joint notice of consent to mediate, the appeal shall proceed normally under the South Carolina Appellate Court Rules.  Nothing in the Pilot Program prohibits parties in any appeal from engaging in voluntary mediation independent of the Pilot Program at any point in the appellate process.

4. Stay Pending Mediation. Upon the timely filing of a joint notice of consent to mediate, the time for ordering the transcript or serving and filing the initial briefs and designation of matter shall be suspended for up to sixty days to enable the parties to mediate the dispute.  Within sixty days after the filing of a joint stipulation, the parties may file a joint request for an extension of up to an additional thirty days to complete the mediation process.

5. Selection of Mediator. The parties may choose a mediator or neutral who, in the opinion of all the parties, is qualified by training or experience to mediate all or some of the issues in the appeal.  Mediators shall abide by the Standards of Conduct for Mediators in accordance with Appendix B of the South Carolina Court-Annexed Alternative Dispute Resolution Rules.

The parties and the neutral shall agree upon compensation.  Unless otherwise agreed by the parties, fees and expenses of mediation shall be paid in equal shares per party.

6. Conduct of Mediation.  All parties who elect to participate in the Pilot Program shall act in good faith in mediating the appeal.  The parties and their representatives shall cooperate with the mediator, and communications during the mediation settlement conference shall be confidential in accordance with Rule 8, South Carolina Court-Annexed Alternative Dispute Resolution Rules.

7. Attendance. The following persons shall physically attend a mediation settlement conference unless otherwise agreed to by the mediator and all parties: (1) the mediator; (2) all individual parties; or an officer, director or employee having full authority to settle the claim for a corporate party; or in the case of a governmental agency, a representative of that agency with full authority to negotiate on behalf of the agency and recommend a settlement to the appropriate decision-making body of the agency; (3) the party's counsel of record; and (4) for any insured party against whom a claim is made, a representative of the insurance carrier who is not the carrier's outside counsel and who has full authority to settle the claim.

8. Full Resolution. If voluntary mediation is successful, the parties shall file a joint notice of settlement within five days of conclusion of mediation.  Within thirty days of filing a joint notice of settlement, the parties shall file a notice of voluntary dismissal which complies with Rule 260, SCACR.  Upon request, the Court of Appeals may remand the matter to the Workers' Compensation Commission for approval of any settlement or any award of attorneys' fees in accordance with South Carolina Workers' Compensation Commission Regulations.

9. Partial Resolution. If voluntary mediation is only partially successful, the parties shall file a joint notice of partial settlement with the Clerk of the Court of Appeals within five days of conclusion of mediation.  The parties shall identify which issues were settled and which issues remain in dispute. The Clerk of the Court of Appeals shall promptly reinstate the appeal and inform the parties in writing of the reinstatement of the appeal and of the starting date for compliance with further procedural requirements.

10. Failure to Resolve.  If the parties notify the Clerk of Court that mediation was unsuccessful, or the parties fail to file a notice of full or partial settlement prior to the expiration of the time to mediate, the Clerk of the Court of Appeals shall promptly reinstate the appeal and inform the parties in writing of the reinstatement of the appeal and of the starting date for compliance with further procedural requirements.

11. Sanctions. A party or counsel for a party who ­agrees to participate in the Pilot Program, but fails to abide by its terms without good cause, may be subject to sanctions in accordance with Rule 10(b), of the South Carolina Court-Annexed Alternative Dispute Resolution Rules.  A party seeking sanctions may file a motion pursuant to Rule 240, SCACR, in the Court of Appeals.

12. Forms. Forms have been prepared for the use of the parties who participate in the Pilot Program.

13. Application of the South Carolina Court-Annexed Alternative Dispute Resolution Rules. With the exception of Rules 3, 4, 5, 6, 7(e) and (f), 9(b) and (d), and 10(a) of the South Carolina Court-Annexed Alternative Dispute Resolution Rules, the South Carolina Court-Annexed Alternative Dispute Resolution Rules shall apply to any mediation in the Pilot Program to the extent the South Carolina Court-Annexed Alternative Dispute Resolution Rules do not conflict with any South Carolina Appellate Court Rules.

14. Effective Date. The Pilot Program shall be effective for all workers' compensation appeals filed on or after November 1, 2011, through November 1, 2014, unless extended by Order of the Supreme Court.


FORMS FOR THE PILOT PROGRAM FOR THE VOLUNTARY MEDIATION OF
WORKERS' COMPENSATION APPEALS

WCP001 - Notice of Consent to Mediate

WCP002 - Request for Extension of Time

WCP003 - Notice of Partial Settlement

WCP004 - Notice of Settlement