N.M. Admin. Code § 11.4.4.10

Current through Register Vol. 35, No. 21, November 5, 2024

Section 11.4.4.10 - MEDIATION RULES

A. Mediation of complaints:

(1) The director's designee, a mediator, shall evaluate all initial complaints in new cases.

(2) The mediator shall evaluate and mediate the merits of the complaint for jurisdiction, proper parties, compensability, the nature and extent of any benefits due the worker, and the strength or availability of any defenses. A mediator may also evaluate the compliance of the parties with the mediation rules.

B. Mandatory production:

(1) The purpose of mandatory production is to ensure that the parties and the mediator have access to all pertinent information regarding the issues disputed in the complaint.

(2) No later than five days before the mediation, the parties shall exchange all of the following within the parties' possession:

(a) medical records, including unpaid bills;

(b) payroll records, including average weekly wage calculations;

(c) job description;

(d) witness statements;

(e) documents and correspondence regarding the initial selection of HCP;

(f) indemnity and payment ledgers; and

(g) any other documents related to a claim or defense.

(3) The documents outlined above need not be produced if they are unrelated to a claim or defense, were previously produced, or if there is a good faith objection or privilege.

(4) Parties shall deliver mandatory production and an exhibits list directly to the mediation bureau no less than five days before the scheduled mediation conference. Mandatory production delivered to the mediation bureau shall not be part of the case record, although parties may file a notice with the clerk indicating compliance with the rule. Mandatory production shall be destroyed by the WCA following issuance of the recommended resolution.

C. Mediation conferences:

(1) Responses:

(a) Respondent shall file an informal response to the complaint not less than five days prior to the mediation conference.

(b) The response shall include a statement of facts and affirmative defenses together with a short summary of reasons for denials of any benefits claimed.

(c) Respondent may file an answer as set forth in this rule, in lieu of an informal response.

(2) By agreement, and subject to the mediation bureau calendar, the parties may reschedule a mediation conference to occur within 75 days of filing the complaint. In doing so, the parties stipulate to waiving the 60-day requirement for the WCA to issue a recommended resolution. Requests by the parties to reschedule a conference that is set in less than five days will only be granted upon demonstration of good cause shown as determined by the mediation bureau chief.

(3) Mediation conferences shall be held using an online web platform and/or telephonic conferencing. At least five days before the scheduled conference, any party may request an in-person mediation conference. All parties must agree to an in-person mediation conference, or it must be approved by the director or director's designee. If the mediation conference is held through an online web platform, the parties will enable and use video, if available. Recording of mediation conferences is prohibited.

(4) The mediator may recommend an amendment to the caption of the complaint to correct an improperly named party or to reflect the joining of appropriate parties who otherwise have notice or attended the mediation conference.

(5) Purposes of mediation conferences and duties of the mediator:

(a) to bring the parties together and attempt to negotiate or settle disputed issues by discussing the facts and applicable law pertaining to the complaint and by suggesting compromises using mediation and other dispute resolution techniques;

(b) to define, evaluate, and make recommendations on all issues remaining in dispute;

(c) to state an opinion of the strength of any argument or position, and the possible results if the complaint is tried by a judge;

(d) to issue a recommended resolution within 60 days of the filing of the complaint unless waived by the parties;

(e) to identify all potential parties;

(f) to make a recommendation regarding attorney's fees; and

(g) to refer any violation of these rules or the act to the enforcement bureau for administrative investigation and enforcement, if appropriate.

(6) Parties are encouraged to communicate before the mediation conference and, if possible, reach a stipulated agreement, of terms to resolve the complaint. When submitting their proposed stipulated agreement to the mediation bureau the parties should utilize the stipulated recommended resolution form provided on the WCA website. If the stipulated agreement is provided before the mediation conference and is adopted by the assigned mediator, the mediation conference will be vacated, and the stipulated recommended resolution will be filed with the clerk of the court. A scheduled mediation conference can only be vacated at the direction of the assigned mediator or mediation bureau chief.

(7) Conduct of mediation conferences:

(a) Mediation conferences shall be in the control of the mediator.

(b) Each party shall come to the mediation conference prepared to discuss settlement of the case. Parties will ensure that they are available for the entirety of the time scheduled for the mediation conference and will ensure that if they are participating through an online web platform or telephonically that there are no background distractions.

(c) The mediator shall be addressed in a courteous and respectful manner by all parties.

(d) Mediation conferences are informal meetings with no transcript of the proceedings. No motions practice shall be allowed. Conferences shall be conducted in a civil, orderly manner, with all presentation geared towards discussion and negotiation of disputed issues. Attorneys and other representatives of the parties shall be attired in an appropriate manner, suitable to a court proceeding.

(e) Employer and attorney, or a representative if no attorney has entered an appearance, and worker and attorney, if any, shall attend the mediation conference. If a party fails to attend a scheduled mediation conference without a reasonable excuse as determined by the mediator, the mediator may still file a recommended resolution based upon the information provided by the attending party and applicable workers' compensation law. If the non-attending party rejects the recommendation, the assigned workers' compensation judge in the interest of justice may refer the matter back to mediation.

(f) Appearances by a legal assistant, paralegal, or other agent or employee of the attorney, in lieu of a personal appearance by an attorney, are prohibited. This rule does not prohibit the appearance of an employer through an adjuster or third-party administrator, nor does it prohibit a worker from attending a mediation conference with the assistance of an unpaid assistant. The attendance and level of participation of any other person at the mediation conference is subject to the discretion of the mediator.

(g) All issues may be considered at the discretion of the mediator when consistent with the goals of economy and fairness, and when an opportunity can be granted for additional response.

(h) The parties are encouraged to prepare written narratives and summaries to assist the mediator.

D. Recommended resolutions:

(1) The mediator shall file the recommended resolution within 60 days of the filing of the complaint unless the parties have stipulated to a waiver of the 60-day requirement and the mediator approves. The mediator may allow additional time to supplement the file prior to issuance of the recommended resolution.

(2) The clerk shall serve a copy of the recommended resolution on parties.

(3) Service on an unregistered party by certified mail domestic return receipt with a signature and date of receipt shall create a presumption of receipt of the recommended resolution on the indicated date. Service through My E-File shall create a presumption of receipt upon transmission.

(4) An acceptance or rejection of the recommended resolution must be filed with the WCA clerk on or before the 30th day after receipt of the recommended resolution. A rejection shall contain a statement of the party's reasons for rejecting the recommended resolution.

(5) Effect of recommended resolution:

(a) The recommended resolution and its terms are not binding and do not reflect an agreement between the parties until all parties have accepted the recommendation or fail to timely reject the recommended resolution.

(b) A rejection in whole or in part of a recommended resolution shall result in assignment to a judge for a determination of all issues in a formal hearing.

(c) Once a party has filed an acceptance or a rejection of a recommended resolution, the party is bound to the acceptance or rejection, unless permitted to withdraw it by written order of the director. The party requesting leave to withdraw a previously filed acceptance or rejection shall submit a written application and proposed order to the director, reciting good cause, within 30 days following receipt by that party of the recommended resolution. The clerk may cancel any judge assignment when a rejection is withdrawn.

(d) If a rejection appears to be untimely, the clerk shall notify the parties of the untimeliness. A party requesting that a rejection be considered timely shall submit a written application to the director and proposed order within 60 days of receipt of the recommended resolution. The application shall state the grounds to support a finding of excusable neglect.

E. Penalties:

(1) Willful failure or refusal to participate in the mediation process shall not preclude the issuance of a recommended resolution, and may constitute bad faith or unfair claims processing.

(2) The assigned mediator, or any party, may refer any such violation for administrative investigation and enforcement by the enforcement bureau.

(3) Failure to comply with the mediation rules, including those requiring mandatory production of evidence and submission of an informal response five (5) days prior to the mediation conference, may subject a party or party's representative to penalties as provided in the Act or the rules of the WCA.

F. Amendment of recommended resolution: The recommended resolution may be amended by a mediator or by the agreement of the parties within the time allowed for acceptance or rejection of a recommended resolution, which time shall not be expanded or modified in any way by the issuance of an amended recommended resolution.

G. A mediator's notes taken in conducting a mediation conference are confidential, not subject to discovery, and shall not be admissible as evidence in any legal proceeding. A mediator may not be called to testify in a workers' compensation or other proceeding regarding a mediation conference they facilitated.

N.M. Admin. Code § 11.4.4.10

5/26/87, 6/20/89, 2/24/92, 10/30/92, 6/1/96; 11.4.4.10 NMAC - Rn, 11 NMAC 4.4.10, 6/13/03; A, 12/31/12, Adopted by New Mexico Register, Volume XXV, Issue 18, September 30, 2014, eff. 10/1/2014, Amended by New Mexico Register, Volume XXVI, Issue 18, September 29, 2015, eff. 10/1/2015, Amended by New Mexico Register, Volume XXVII, Issue 18, September 30, 2016, eff. 9/30/2016, Adopted by New Mexico Register, Volume XXVIII, Issue 22, November 28, 2017, eff. 1/1/2018, Adopted by New Mexico Register, Volume XXXIII, Issue 24, December 27, 2022, eff. 1/1/2023