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Thursday, December 13, 2012

Proposed Regulation Would Make Mediation Mandatory In Certain S.C. Workers' Compensation Cases




The South Carolina Workers’ Compensation Commission has submitted to the General Assembly for approval a proposed regulation requiring parties to mediate certain claims.  

As set out in the Court-Annexed Alternative Dispute Resolution (ADR) Rules first adopted in 2006 by the South Carolina Supreme Court, (and making mediation mandatory in certain civil trial and family courts), mediation is defined as: 

An informal process in which a third-party mediator facilitates settlement discussions between parties.  Any settlement is voluntary.  In the absence of settlement, the parties lose none of their rights to trial.

For several years, parties with disputes pending at the Workers’ Compensation Commission have been encouraged to mediate their cases before going to a hearing.  However, under Proposed Regulation 67-1801, which can be found here, parties must mediate the following claims prior to a hearing:

  • claims arising under S.C. Code § 42-9-10;
  • claims where permanent and total disability are alleged under S.C. Code § 42-9-30(21);
  • occupational disease cases;
  • third-party lien reduction cases;
  • contested death claims; 
  •  mental/mental injury claims;
  •  cases of concurrent jurisdiction under the South Carolina Workers’ Compensation Act and the Federal Longshore and Harbor Workers’ Compensation Act.

Like the ADR Rules referenced above, the Proposed Regulation mandates that parties must mediate in good faith.  Moreover, information exchanged in mediation must be held in confidence, and cannot be used as evidence in any proceeding.

The General Assembly is expected to affirmatively approve the Proposed Regulation upon its return in January.  Absent legislative action, the Proposed Regulation will become law on May 8, 2013.

Lana Sims and Earl Ellis of Ellis Lawhorne have a very active ADR practice, mediating workers’ compensation claims and a wide variety of civil litigation matters.  The two have conducted more than 600 workers’ compensation mediations in the past two years, and look forward to mediating claims under the procedures set out in the Proposed Regulation.