The New Mexico Workers' Compensation Act and the New Mexico Workers' Compensation Administration's rules require that the parties in a workers' compensation case attend a a mandatory mediation before the case can go into "formal litigation".

Once a party files a complaint for workers' compensation benefits at the Workers' Compensation Administration, it will schedule a mandatory mediation and assign a mediator to the case. The purpose of the mediation is to give the parties an opportunity to meet informally, talk about the issues, and hopefully resolve all or part of the case. The mediation is off the record. The parties cannot use what was said at the mediation later on in the case.

Right now, all mediations are being done by Zoom videoconference.

The mediators are all lawyers who work for the New Mexico Workers' Administration. They are neutral and their job is to assist the parties in trying to resolve as much of the case as possible. The mediators cannot decide any issues in the case or order the parties to do anything. In my experience, the mediators take their job seriously and are often extremely helpful in resolving cases or parts of cases. They can also identify issues and ways to resolve the case that the parties may not have thought of.

When the mediation begins the parties will be together. The mediator will explain the process and the ground rules. Each party will give a summary of their positions in the case. The parties and/or the mediator can ask questions. However, there is no duty for the parties to answer questions if they don't want to.

Then the parties will go to separate rooms and the mediator will go back and forth between rooms conveying offers and counteroffers to resolve the case.

If the parties resolve the case, the mediator will write a Recommended Resolution that summarizes the agreement and file it. The parties will have 30 days to reject the Recommended Resolution if they change their mind about the agreement. If both parties accept the Recommended Resolution, it has the same binding effect as a workers' compensation Judge's order.

If the parties cannot resolve the case, the mediator will write a Recommended Resolution that describes how the she thinks the parties should resolve the case. Once again, if the parties do not reject it, the Recommended Resolution is binding on them. If one or both parties file a rejection within 30 days, a workers' compensation judge will be assigned, she will file a scheduling order, and formal litigation will begin with the goal of a trial at the end.

Even the the New Mexico Workers' Compensation Administration's mediation is an informal process, I think in a lot of cases it can be very useful in resolving the case or parts of the case. It can also be useful if determining the other party's view of the case and to determine what the the actual disputes are. The key is being prepared for the deposition and giving the mediator and the other party notice of your position or positions in the case at least a week or more before the mediation. Mediations should not be a wasted opportunity to resolve the case and/or to learn more about the case.

Finally, the mediation is important to the case. However, it is not a hearing or a trial. Nothing is recorded. Therefore, you should not view the mediation with fear or lose sleep over it.

If you have any questions about mediations at the New Mexico Workers' Compensation Administration or about any other part of your workers' compensation case please call or email. My phone is 505 292-8836. My assistant's email is [email protected]