Clarifies the terms "continue" and "reschedule," and clarifies the filing of a mediation report in the event of a private mediation.

 

DEPARTMENT OF MANAGEMENT SERVICES

Division of Administrative Hearings

RULE NO.:RULE TITLE:

60Q-6.110Mediation, Generally

PURPOSE AND EFFECT: Clarifies the terms "continue" and "reschedule," and clarifies the filing of a mediation report in the event of a private mediation.

SUMMARY: Changes within the 130 day statutory period are reschedules and are within mediator discretion. Those moving beyond the 130 day time are continuances and require judicial approval based upon statutory parameters.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein:

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY:

LAW IMPLEMENTED:

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: David Langham, [e-mail], [phone].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

60Q-6.110 MEDIATION, GENERALLY Mediation, Generally.

(1) All petitions and claims pending at the time a mediation conference is held are deemed consolidated and will be mediated at that conference.

(2) Parties who have agreed to private mediation or to re-schedule private mediation shall file with the judge at least 30 days prior to any scheduled mediation a notice substituting private mediation for state mediation or re-scheduling private mediation. If such notice is filed less than 30 days prior, it shall be treated as a motion, and attendance and participation at the scheduled state mediation shall not be excused, absent an order finding good cause to excuse this time requirement. The notice shall include the name of the private mediator, along with the date and time of the private mediation and shall state that the private mediation meets the statutory deadline, unless the deadline is waived by all parties.

(a) The Deputy Chief Judge shall assign a mediation date for each petition filed. Within 40 days after the filing of the earliest petition for benefits awaiting mediation, the parties may agree to coordinate with the assigned judge an alternate state mediation date which meets the 130-day statutory deadline. Any such change in date shall be considered a re-scheduling and not a continuance of the mediation.

(b) After the state mediation has been noticed on the 40th day following the filing of the earliest petition for benefits awaiting mediation, the state mediation shall not be continued, meaning moved to a date beyond the 130-day statutory period, unless first granted by the judge upon agreement of the parties or upon proper motion demonstrating that the basis for the continuance arises from circumstances beyond the movant’s control or for other good cause shown. The motion shall be filed no later than 30 days before the date of the scheduled state mediation absent an emergency, filed no later than 30 days before the date of the scheduled state mediation unless the mediation notice is sent to the parties less than 30 days prior to the noticed mediation.

(c) The state mediation conference may not be re-scheduled, within the 130-day statutory period, upon mutual request of the parties and agreement of the assigned mediator. or continued to occur after the 130-day statutory deadline unless first granted by the judge upon proper motion demonstrating that the basis for the continuance arises from circumstances beyond the movant’s control or for other good cause shown. The motion shall be filed no later than 30 days before the date of the scheduled state mediation absent an emergency.

(d) Parties to a workers’ compensation claim may jointly request voluntary mediation services from the OJCC. Such requests will be considered as individual state mediator calendars permit. Any voluntary mediation will be conducted only if all parties so stipulate. Any voluntary mediation will be governed by these rules. Failure to appear at a voluntary mediation shall not be a basis for the imposition of sanctions.

(3) The parties and private mediator shall be bound by the rules and statutes applicable to state mediation. If a notice and order regarding state mediation has been entered in the cause, the terms and requirements of the notice and order shall remain in full force and effect as to the substituted private mediation.

(4) If the parties resolve all issues, or all issues except for attorney’s fees, prior to the scheduled mediation conference, the attorney or unrepresented claimant who has filed a petition for benefits shall file a pleading in order to cancel the corresponding mediation. The pleading must be filed prior to the scheduled mediation and shall indicate the manner in which each issue was resolved

(5) The following persons shall attend the mediation conference: the claimant; the claims representative of the carrier/servicing agent, which representative must have full authority to resolve all the issues and/or settle the case; the employer, if uninsured; the insured or self-insured employer, if the employer/servicing agent does not have full authority to settle the issues; and the attorneys for the parties. The appearance of an attorney for a party does not dispense with the required attendance of the party. No party shall appear at the mediation conference by telephone unless such appearance is approved in advance by the mediator. Any party appearing by telephone has stipulated to be bound by that party’s attorney of record’s signature on the mediation report.

(a) The adjuster, if represented by counsel, may attend the mediation by phone unless an objection is filed with the mediator on the basis of good cause. The mediator shall have discretion to allow any party and/or that party’s attorney of record to appear at the mediation conference by telephone upon the party’s written request furnished to the mediator and the opposing party or, if represented, the party’s attorney of record no fewer than five days prior to the mediation conference. The expense of telephonic attendance shall be borne by the person or party attending by telephone.

(b) Any person attending mediation telephonically shall provide an e-mail address for use in exchanging documents during the mediation unless good cause is shown to the mediator at least five days prior to the mediation. Any mediation attended telephonically is not concluded until the signed report is returned to the mediator. The signed report shall be returned by the end of the business day unless excused by the mediator.

(6) Failure to attend the mediation conference without a showing of good cause, or the failure to appear at the mediation conference with full authority to resolve the issues, shall subject the party or the attorney to sanctions.

(7) Immediately following the conclusion of a mediation conference in an open OJCC case, the mediator, whether state, adjunct, or private, shall prepare a report stating which issues or claims in dispute are resolved and which remain unresolved., and whether the parties completed a pretrial stipulation. The report shall identify by filing date each petition mediated. In the case of private mediation, the The claimant shall file with the judge within five business days of the mediation conference the mediator’s report and mediation settlement agreement, if any., together with any pretrial stipulation executed by the parties.

Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.25(1)-(4), 440.45(1)(a), (4) FS. History–New 2-23-03, Amended 11-1-06, 10-31-10, 10-31-12, 11-10-14. [Date].

 

NAME OF PERSON ORIGINATING PROPOSED RULE: David Langham, [e-mail], [phone].

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Peter Antonacci

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: November 01, 2021

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: 10/14/2021