Alternative Dispute Resolution in Oregon

By Brian M. Solodky, Attorney at Law

Reinisch Wilson P.C. is focused on solving problems for their clients. Adjudication of disputes via trial and appeals is one method of resolving a claim. It goes without saying that the outcome of litigation in any forum can be unpredictable and always comes with some degree of risk. Trials and appeals can take many months (if not years) before a final ruling is made. The Workers’ Compensation Board has developed a robust mediation program in an effort to help parties resolve cases without the time and expense associated with “traditional” litigation. Not every case is amenable to mediation and there are several factors to consider. This list is not meant to be exhaustive, but touches upon key criteria that should be analyzed when discussing mediation with legal counsel:

1. Is mediation necessary? This basic question usually has a simple answer: the parties have very different views concerning the merits of the pending dispute. An ALJ can help the parties understand the strengths and weakness of their position objectively, thereby providing a “reality check” that could facilitate settlement. Securing an opening demand prior to mediation can offer some idea as to whether negotiations would be productive.
2. What is the status of pending litigation and the evidentiary record? Mediation may be detrimental to your defense absent some agreement regarding limitations on the development of additional evidence if mediation is unsuccessful. The goal of mediation is to expedite case resolution and the process should not be used as a delay tactic.
3. What are the primary advantages of mediation versus traditional settlement negotiations? Mediations allow both parties to present their arguments to an ALJ and receive feedback. Sometimes, the process itself is important for the parties to feel heard, or “have their day in court.” Statements and arguments made at mediation are protected from disclosure in any subsequent proceeding. The ALJ cannot disclose comments made at mediation under Oregon law. It is common practice for both parties to execute a confidentiality agreement prior to mediation.
4. Is the case ready to mediate? It is important to fully understand and appreciate all aspects of the case in advance of mediation. Information regarding liens, outstanding medical bills, Medicare entanglements and structured settlement options all should be explored well in advance of mediation.

Mediation is not a remedy for every case. That said, the Board’s mediation program is popular and deserves praise. Whether a pending claim or dispute would benefit from mediation is a decision that should be discussed with legal counsel. As always, the attorneys at Reinisch Wilson P.C. are here to guide their clients to timely, cost-effective case resolution. Mediation is one of many tools that may help achieve our objective.

As always, please do not hesitate to contact the attorneys at Reinisch Wilson P.C. with any questions.