California Workers’ Compensation Information
California Workers’ Compensation Mediation: From Ombudsman Assistance to Arbitration
Workers’ compensation mediation is a structured dispute-resolution process in which a neutral mediator helps the participants identify the issues, exchange information, evaluate possible solutions and determine whether they can make a voluntary agreement.
In a collectively bargained California workers’ compensation Alternative Dispute Resolution Program, mediation is ordinarily best understood as the bridge between informal Ombudsman assistance and adjudication by an arbitrator. It is more structured than informal facilitation, but it is not a hearing in which the mediator decides who wins.
The defining question is who controls the outcome. During Ombudsman assistance, the participants retain control while an impartial resource helps clarify and address the problem. During mediation, the participants retain control over whether to settle. During arbitration, decision-making authority shifts to the arbitrator.
Information only: This page provides general educational information about California workers’ compensation mediation and collectively bargained ADR Programs. It does not provide medical advice, legal advice or financial advice; interpret a particular agreement or Program rule; determine whether a claim or benefit is payable; recommend a settlement; or evaluate the merits of a dispute. The governing law, collective bargaining or labor-management agreement, insurance coverage, claim facts and Program Rules may affect an individual matter.
What is workers’ compensation mediation?
Mediation is assisted negotiation. The mediator organizes communication and helps the participants work with a clearly identified dispute, but the mediator does not impose a settlement while acting as mediator.
Depending on the governing Program, mediation may address one issue, several related issues or a broader effort to resolve a claim. It may occur after informal efforts have not resolved the problem, after necessary information has been gathered, or at another point established by the ADR Agreement and Program Rules.
The term mediation can also be used for privately arranged settlement discussions in an ordinary Workers’ Compensation Appeals Board matter. This page focuses primarily on mediation conducted as part of a collectively bargained ADR Program under California Labor Code section 3201.5 or 3201.7.
Where mediation fits in a workers’ compensation ADR Program
Question or problem → Ombudsman inquiry and facilitation → defined unresolved dispute → mediation → agreement or arbitration
Ombudsman stage: clarify and connect
A problem may begin with a missing notice, unanswered communication, misunderstanding about Program coverage, uncertainty about the correct procedure or disagreement about what has occurred. The Ombudsman stage focuses on information, inquiry, communication and informal resolution.
The Ombudsman may help identify the correct participants, request clarification, explain the available Program process and help the parties communicate. The Ombudsman does not issue a binding decision.
Mediation stage: negotiate with assistance
When the participants understand the issue but remain unable to resolve it informally, mediation provides a more structured setting for negotiation. The mediator may help the participants distinguish undisputed facts from disputed facts, identify the decisions that must be made and explore practical or claim-specific resolution options.
The mediator controls the conduct of the mediation but does not control whether the participants ultimately settle.
Arbitration stage: obtain a decision
If the dispute remains unresolved and the requirements for arbitration are satisfied, the dispute may proceed to an arbitrator. Arbitration is adjudicative rather than facilitative. The arbitrator can determine issues and issue an award or order under the governing agreement, Program Rules and applicable law.
California Labor Code sections 3201.5 and 3201.7 provide that an arbitrator’s findings, award, order or decision have the same force and effect as those of a workers’ compensation administrative law judge and are subject to the statutory review procedures identified in those sections.
What does a workers’ compensation mediator do?
A mediator may
- Help define exactly what is disputed.
- Identify points on which the participants already agree.
- Organize the exchange or discussion of relevant information.
- Separate factual, procedural, medical, financial and legal questions without deciding them.
- Help participants identify the consequences of leaving an issue unresolved.
- Explore possible complete or partial resolutions.
- Meet with participants together, separately or through another permitted format.
- Help accurately document an agreement reached by the participants.
- Identify issues that remain unresolved and may require another procedure.
A mediator does not
- Decide which participant should prevail.
- Issue a workers’ compensation award while acting as mediator.
- Force a participant to accept a proposal.
- Guarantee payment, treatment, settlement or another result.
- Diagnose a condition or determine medically appropriate treatment.
- Act as a participant’s attorney, medical provider, financial adviser or claim representative.
- Override the applicable statute, ADR Agreement or Program Rules.
- Convert an informal statement into an enforceable agreement without the documentation and approval required by the governing process.
What kinds of workers’ compensation disputes may reach mediation?
The issues that may be mediated depend on the governing Program and any procedures that must occur first. Examples can include disagreements concerning:
- Whether the employee or claim is covered by the ADR Program.
- The identity of the employer, insurer or claims administrator.
- Claim acceptance, delay or denial.
- The claimed injury, body parts or cumulative-trauma period.
- The applicable medical-provider or medical-evaluation process.
- Access to requested records or reports.
- Temporary disability or permanent disability issues.
- Work restrictions, modified work and return-to-work communication.
- Benefit notices, payment periods or calculation information.
- Apportionment, causation or other medical-legal issues.
- Settlement of one issue, several issues or the entire claim.
- Compliance with a prior agreement or Program order.
- The procedure or timetable for resolving remaining issues.
The appearance of an issue in this list does not mean that it is automatically mediable or that mediation is the first required procedure. Some disputes may be governed by specialized statutory or Program procedures.
ADR may change the process, but it may not diminish protected compensation entitlements
The distinction between processes and payments is essential.
California Labor Code sections 3201.5 and 3201.7 authorize qualifying agreements to establish alternative dispute-resolution procedures and certain negotiated systems for delivering medical care, medical evaluations, return-to-work services and related functions.
Those statutes do not authorize an agreement to diminish the employee’s protected entitlement to compensation payments for disability or to employer-paid medical treatment otherwise provided by California workers’ compensation law.
Mediation may therefore address a disagreement about whether a benefit is due, what information applies, when a payment period begins, how an issue can be resolved or what settlement the participants voluntarily accept. The existence of a different ADR process does not itself reduce the underlying statutory entitlement.
| The ADR Agreement may establish a different process for | The ADR Agreement may not use that process to diminish |
|---|---|
| Ombudsman assistance, informal resolution, mediation and arbitration. | Protected entitlement to compensation payments for total or partial disability. |
| An agreed system of medical-treatment providers. | Protected employer-paid medical treatment otherwise required by law. |
| An agreed list of qualified medical evaluators and agreed medical evaluators. | Protected compensation entitlements identified in the applicable statute. |
| Program-specific forms, communications, filing routes and dispute stages. | The underlying statutory benefit merely because a different procedure is used. |
Review the official text of California Labor Code section 3201.5 and California Labor Code section 3201.7.
How workers’ compensation mediation commonly proceeds
The exact procedure depends on the ADR Agreement and Program Rules, but a mediation commonly includes the following stages:
- Confirm Program coverage. The participants identify the agreement and Program that govern the employee and claim.
- Identify the dispute. The referring document or communication states what remains unresolved.
- Confirm procedural prerequisites. Required Ombudsman activity, notices, requests, conferences or deadlines are reviewed.
- Select or appoint the mediator. The method may be established by the agreement, a panel, stipulation or Program administration procedure.
- Organize relevant information. Participants identify the documents, notices, reports, payment records or other information needed to understand the disagreement.
- Conduct the mediation. The mediator may use joint discussion, separate meetings, telephone, videoconference, written communication or another permitted format.
- Explore possible resolution. The participants consider complete, partial, conditional or procedural agreements.
- Document the result. Any agreement must be recorded and processed in the manner required by the Program and applicable law.
- Identify unresolved issues. If no complete agreement is reached, the remaining dispute may return to informal handling, continue in mediation or proceed toward arbitration as permitted.
Information that can help define a mediation dispute
A focused mediation begins with a focused issue. Information that may help participants understand the dispute includes:
- Employee, employer and claims-administrator names.
- Date or claimed period of injury.
- Insurance claim number and ADR case number.
- The applicable ADR Agreement and Program Rules.
- The notice, decision or communication being disputed.
- A neutral chronology of important events.
- Relevant payment notices or payment history.
- Relevant medical reports or work-status documents.
- Prior Ombudsman communications.
- Requests made and responses received.
- Issues that are agreed upon.
- Issues that remain disputed.
- Any existing deadline, scheduled proceeding or prior agreement.
The objective is not to overwhelm the mediator with every document in the claim file. It is to provide enough organized information to identify the dispute and support a productive discussion.
Participation, confidentiality and representation
Participation, confidentiality and attorney involvement are governed by the applicable statute, ADR Agreement, Program Rules and mediation procedures. Participants should review the materials for the particular Program rather than assume that every California ADR Program uses identical rules.
Who may participate?
The participants may include the injured worker, employer, claims administrator, insurer, union or labor-management representative, attorney, lien claimant or another person whose participation is permitted or necessary. The mediator does not automatically have authority to require every possible participant to attend.
A person participating for an organization should understand the issues and the scope of that person’s authority. A productive mediation may be delayed when a necessary participant or decision-maker is unavailable.
Are mediation communications confidential?
Participants should not assume that every communication connected with mediation has identical confidentiality protection. The treatment of statements, documents, settlement proposals, mediator communications and separate discussions can depend on the governing law, mediation agreement and Program Rules.
The mediator should identify the applicable ground rules at the beginning of the process, including how information received during a separate discussion will be treated.
Representation by counsel
A participant’s ability to obtain private legal advice should be distinguished from an attorney’s direct participation in an ADR Program proceeding.
A participant may privately consult with an attorney, obtain legal advice and enter into a fee agreement with that attorney. The governing ADR Agreement and Program Rules may separately determine whether, when and how the attorney may appear, communicate or otherwise participate directly in the Ombudsman, mediation or arbitration stages.
Private legal consultation is not the same as direct attorney participation. A Program rule limiting an attorney’s appearance in an early ADR stage does not prevent a participant from privately consulting that attorney outside the proceeding.
Programs established under Labor Code section 3201.5
Labor Code section 3201.5 does not prohibit a party from retaining an attorney, entering into a fee agreement or privately consulting counsel. Depending on the governing ADR Agreement and Program Rules, however, an attorney’s direct participation in the Program process may be limited by stage.
Some section 3201.5 Programs limit direct attorney participation to the arbitration stage. In a Program with that structure, a participant may privately consult an attorney concerning the claim, the Program process or a proposed resolution, but the attorney may not be permitted to attend an Ombudsman meeting, participate directly in mediation, communicate with the neutral on the participant’s behalf or otherwise appear in those earlier stages.
Other section 3201.5 Programs permit attorneys to participate directly during the Ombudsman or mediation stages. Participants and attorneys should therefore review the particular ADR Agreement and current Program Rules rather than assume that every section 3201.5 Program follows the same participation model.
Programs established under Labor Code section 3201.7
Labor Code section 3201.7 provides that an authorized labor-management agreement may not deny an employee the right to representation by counsel at any stage of the ADR process. Attorney direct participation therefore is not limited to the arbitration stage in a section 3201.7 Program.
The right to representation does not eliminate reasonable administrative requirements established by the ADR Agreement or Program Rules. For example, an attorney may be required to file and serve a notice of representation, provide current contact information or complete another designated procedure before the Program recognizes the attorney as attorney of record for a party.
Private retention and recognition as attorney of record
Entering into a private fee agreement does not necessarily, by itself, notify the ADR Program that an attorney represents a participant. Until the required notice of representation has been filed and processed, the Program may continue to communicate directly with the participant or with the representative already identified in the Program record.
Participants and attorneys should consult the governing ADR Agreement and Program Rules to determine:
- Whether attorneys may participate directly at each ADR stage.
- How a notice of representation must be filed and served.
- When the attorney will be recognized as attorney of record.
- Which notices and documents must thereafter be sent to counsel.
- Whether stage-specific appearance, scheduling or filing requirements apply.
These distinctions concern attorney participation in the ADR process. They do not limit a participant’s ability to seek private legal advice concerning the claim, the applicable procedures, or a proposed agreement.
Possible outcomes of workers’ compensation mediation
| Outcome | What it generally means |
|---|---|
| Full agreement | The participants resolve every issue submitted to mediation. The agreement is documented and processed as required. |
| Partial agreement | Some issues are resolved and others remain disputed. Narrowing the controversy can reduce the time and expense associated with later proceedings. |
| Procedural agreement | The participants agree on an information exchange, evaluation, payment review, timetable, further conference or another step without resolving the ultimate dispute. |
| Continued mediation | The mediator and participants determine that additional information or another session could be useful, when permitted by the Program. |
| No settlement | The participants remain unable to agree. The mediation may nevertheless have clarified the record, narrowed the issues and prepared the matter for arbitration. |
What happens after mediation?
When an agreement is reached, it should be documented with sufficient clarity to identify:
- The participants and claim.
- The issues submitted to mediation.
- The matters resolved.
- Any payment, performance or document-delivery obligations.
- Applicable deadlines.
- The procedure for approval, entry or enforcement.
- The issues, if any, that remain unresolved.
Participants should not assume that the filing and approval procedure used in an ordinary WCAB case is automatically the procedure required by an ADR Program. The governing ADR Agreement and Program Rules should be reviewed.
When no agreement is reached, the next step may include additional mediation, a required written request for arbitration, selection of an arbitrator, exchange of information, a conference or another Program-specific procedure.
A mediation does not necessarily lack value merely because it ends without a complete settlement. The process may identify undisputed facts, narrow the issues, reveal missing information and help the participants prepare the remaining dispute for arbitration.
Frequently asked questions about workers’ compensation mediation
Is mediation the same as an Ombudsman inquiry?
No. Ombudsman activity is ordinarily less formal and emphasizes information, inquiry, communication and early problem-solving. Mediation provides a more structured process for negotiating a defined dispute.
Is a workers’ compensation mediator a judge?
No. A mediator does not adjudicate the dispute or issue an award while serving as mediator. An arbitrator performs the adjudicative function in the ADR process.
Can a mediator force the participants to settle?
No. The participants decide whether to make an agreement. The mediator can organize negotiations and explore possible solutions but cannot compel acceptance of a proposal.
Is workers’ compensation mediation always voluntary?
Agreement to a settlement is voluntary. Participation in the mediation stage itself may be required by the governing ADR Agreement before arbitration can be requested.
Does every dispute proceed from Ombudsman assistance to mediation and then arbitration?
Not necessarily. Many matters resolve informally, some disputes may use specialized procedures, and the governing Program may establish different prerequisites or routes.
Can mediation address only one issue in a claim?
Yes. Depending on the Program, mediation may concern a single issue, several related issues or a proposed complete resolution of the claim.
Are all mediation communications confidential?
Participants should not assume blanket confidentiality. The applicable statute, agreement, Program Rules, mediation agreement and mediator’s ground rules determine how communications and documents are treated.
May a participant privately consult an attorney before or during mediation?
Yes. Private consultation with an attorney is distinct from the attorney’s direct participation in an ADR proceeding. A participant may retain and privately consult counsel even when the governing rules limit the attorney’s direct appearance during an early Program stage.
Can an attorney participate directly in a section 3201.5 mediation?
The governing ADR Agreement and Program Rules control. Some section 3201.5 Programs limit direct attorney participation to arbitration, while others allow attorneys to participate directly in the Ombudsman or mediation stages.
Can an attorney participate directly in a section 3201.7 mediation?
Section 3201.7 provides that an authorized agreement may not deny an employee representation by counsel at any ADR stage. The Program may nevertheless require the attorney to file a notice of representation before the attorney is recognized as attorney of record.
Does signing a fee agreement automatically make an attorney the attorney of record?
Not necessarily. A private fee agreement establishes the relationship between the participant and attorney, but the ADR Agreement or Program Rules may require a separate notice of representation before the Program recognizes the attorney as attorney of record.
What happens when mediation does not settle the dispute?
The unresolved issues proceed according to the next procedure specified by the Program, which may include additional mediation, an arbitration request, selection of an arbitrator or another Program-specific step.
Does mediation reduce workers’ compensation benefits?
The existence of mediation does not authorize reduction of the protected compensation entitlements identified in Labor Code sections 3201.5 and 3201.7. Mediation may address disputes about entitlement, administration, delivery or settlement, but the authorization to use a different process is not authorization to diminish the protected payment entitlement.
Official California workers’ compensation ADR resources
- California Labor Code section 3201.5 — authority and limits for qualifying construction-industry workers’ compensation ADR agreements, including mediation and arbitration.
- California Labor Code section 3201.7 — authority and limits for qualifying workers’ compensation labor-management agreements outside section 3201.5 industries.
- California DWC Alternative Dispute Resolution and Carve-Out Program Report — official background and reporting information concerning California workers’ compensation ADR Programs.
- California DWC Benefit Notice Instruction Manual — official benefit-notice guidance that includes language concerning claims subject to an ADR Program.
- California Division of Workers’ Compensation — official forms, guides, Information and Assistance resources and general workers’ compensation information.
Questions about mediation in an ADR-covered claim?
The Office of the Ombudsman can help identify the applicable Program, explain Program procedures, assist communication and help participants determine the appropriate next step within the governing ADR process.
Reviewed and updated July 2026. This publication is provided for general educational and informational purposes only. It is not medical advice, legal advice or financial advice and is not a substitute for advice from an appropriately qualified professional concerning a particular matter. The applicable law, claim facts, insurance coverage, collective bargaining agreement, ADR Agreement and current Program Rules control.
