Bryson v. Trucking

2. A voluntary mediation for this case was scheduled for July 12, 2002. The mediation was canceled by the defendants on July 9, 2002, a day after counsel for defendants sent the plaintiff's counsel a letter stating: "[I]t does not appear that this case is amendable to settlement at this time." The defendants contend that the mediation was canceled because the plaintiff developed health complications that necessitated the postponement of the mediation; however, a review of the record shows that it was the defendants' decision to cancel the July 12, 2002 mediation. The mediator, Scott Taylor, charged an administrative cancellation fee of $175.00 to each party, or $350.00 total. The defendants paid the full amount pursuant to the Rules for Mediated Settlement Conferences.

3. Thereafter, the parties agreed to voluntarily mediate the case again on December 19, 2003. The mediation resulted in an impasse. The mediator, Lee Martin, filed a Report of Mediation indicating there was a mediation fee of $675.00. Defendants paid the charges pursuant to the Rules for Mediated Settlement Conference.

4. The parties attended a second voluntary mediation on December 15, 2004. Mr. Martin again mediated the case and filed a Report of Mediation assessing his fee of $700.00. Defendants paid the fee pursuant to the Rules for Mediated Settlement Conference.

5. An additional $75.00 was assessed by Mr. Martin as a late fee; however, the defendants have taken responsibility for the late fee. Thus, the total amount of mediation fees (not including the late fee) paid in this matter by the defendants totals $1,725.00. *Page 3

6. Based upon a review of the record, the Full Commission finds that the July 12, 2002 mediation was canceled unilaterally by the defendants and, thus, the defendants should be solely responsible for the $350.00 cancellation fee imposed by mediator Scott Taylor.

7. The Full Commission, in its discretion, finds that the parties shall be equally responsible for one-half of the remaining $1,375.00 in mediation fees. Thus, the defendants are entitled to reimbursement from the plaintiff in the amount of $687.50. The defendants shall deduct $10.00 a week from the plaintiff's ongoing temporary total disability compensation until such time that the $687.50 reimbursement has been paid in full.

2. Based upon a review of the record, the Full Commission concludes that the July 12, 2002 mediation was canceled unilaterally by the defendants and, thus, the defendants should be solely responsible for the $350.00 cancellation fee imposed by mediator Scott Taylor. Rule 7(c), Rules for Mediated Settlement Conferences.

3. The Full Commission, in its discretion, concludes that the parties shall be equally responsible for one-half of the remaining $1,375.00 in mediation fees. Thus, the defendants are entitled to reimbursement from the plaintiff in the amount of $687.50. The defendants shall deduct $10.00 a week from the plaintiff's ongoing temporary total disability compensation until *Page 4 such time that the $687.50 reimbursement has been paid in full. Rule 7(c), Rules for Mediated Settlement Conferences.

2. The defendants shall deduct $10.00 a week from the plaintiff's ongoing temporary total disability compensation until such time that the $687.50 reimbursement has been paid in full.

This 28th day of January 2008.

S/______________________ CHRISTOPHER SCOTT COMMISSIONER

CONCURRING:

S/______________________ DANNY LEE McDONALD COMMISSIONER

CONCURRING IN PART AND DISSENTING IN PART:

S/______________________ DIANNE C. SELLERS COMMISSIONER

I concur with the majority's decision finding defendants entitled to reimbursement from plaintiff for mediation fees incurred in this matter. However, I respectfully disagree with the majority's decision finding defendants solely responsible for the $350.00 fee resulting from the cancellation of the July 12, 2002 mediation.

The parties to this matter had scheduled a voluntary mediation for July 12, 2002. Right before this mediation, it was discovered that plaintiff's spinal cord stimulator was leaking and plaintiff may have had a possible infection, which would require further surgery. Plaintiff was scheduled for a surgical evaluation on July 18, 2002. Based upon this information, the only rational way to proceed was to cancel the mediation until the state of plaintiff's condition could be determined. The cancellation of the mediation was not only proper but it was to the benefit of plaintiff as any mediation under such circumstances would be inappropriate. It was not through the fault of either party that the July 12, 2002 mediation had to be cancelled and therefore, both parties should bear the cost of the cancellation.

For these reasons, I believe plaintiff should be responsible for half the $350.00 fee charged by Scott Taylor for the cancellation of the July 12, 2002 mediation. *Page 7

S/______________________ DIANNE C. SELLERS COMMISSIONER