Keith supervises about eighteen mediators and arbitrators, who employ many alternative dispute resolution techniques to resolve about 2,500-3,000 cases per year. (2,725 in fiscal year 2004). These ADR techniques include everything from early-on phone intervention to arbitration of rehab and medical disputes to full, final and complete settlements, achieved through mediation.

Approximately 1000 medical and vocational rehabilitation disputes are arbitrated each year (974 in fiscal year 2004) In Minnesota; these proceedings are referred to as administrative conferences, with a focus on speed of scheduling and problem solving, once the parties convene. If an agreement is not reached during the conference, the mediator/arbitrator makes a legally binding decision, based upon the preponderance of the evidence. Conferences are scheduled hourly. Decisions, when required, are issued within 30 days of the conference. Parties may appeal by requesting a de novo hearing, which affords them a formal hearing, on the record, in front of a workers' compensation ALJ. However, it has been found that once an administrative conference is held, less than 10% on the average ever go to formal hearing. Attorneys are very often present, though not necessary at these administrative conferences.

In addition to administrative conferences, Keith's unit conducts 275-300 mediation sessions each year, on everything from a single issue dispute to a full, final and complete settlement of all claims past, present and future. Once the parties convene for a mediation session, the unit's average agreement rate is between 85 and 90%. Again, attorneys are very often present but not always necessary. However, when an injured worker participates in a mediation session, pro-se, he/she is encouraged to consult with an attorney if he/she chooses before signing any agreement. In addition, there is a three-day period after the mediation session during which any party may rescind the agreement.

In addition to this mediation/arbitration approach to dispute resolution, Keith likes to describe his unit as having a customer assistance approach to dispute prevention. This is accomplished via “hot-line” access to the mediator/arbitrators in the unit. The unit advertises that instead of “Operators are standing by now to take your call,” “Experts are standing by now to take your call.” This direct access by the public to unit mediators combined with the mediators' instant access to the caller's workers' compensation file, via the department's imaging system, often results in “real-time resolutions” of disputes.

In addition to managing the Department's Customer Assistance Unit, Keith also serves as chair of the ADR/Judicial Committee sponsored by the International Association of Industrial Accidents Boards and Commissions (IAIABC) This association is in its 91st year and is comprised of jurisdictions from all over the world that have one thing in common, the efficient administration of workers' compensation programs. His committee's mission statement is; “The Alternative Dispute Resolution/Judicial Committee promotes effective and efficient methods of case resolution. The Committee promotes best practices in all areas of dispute resolution, whether performed as part of the administrative or adjudicative process.”

As chair of this committee, Keith's responsibilities include organizing mediation training across the country for interested groups, and the creation and implementation of an ADR/Mediation Guidebook, which was recently published on the IAIABC website.

Keith was awarded the “Committee Member Recognition Award” in 2004 for his leadership in the development of the guidebook.

We are fortunate to have Keith and IAIABC bring the mediation training to Missouri on March 8-9, 2005 at the Holiday Inn at the Plaza Kansas City (formerly known as the Four Points Sheraton – the name change became effective 1-10-05).

The program includes the following topics:

1. Why ADR Works for Administrative Law Judges

2. Pre-mediation Concerns

3. Opening the Mediation

4. Mediation – the Path Resolution

5. Conflict to Conclusion – Problem Solving in Mediation

6. Ethics in Mediation

7. Cultural Issues in Workers' Compensation

8. Discussion about the IAIABC Dispute Resolution and Mediation Manual

To register for the training, download the form from www.iaiabc.org. Keith may be contacted for more information by email: keith.keesling@state.mn.us or by telephone: 651-284-5450.

Keith sat down with me and shared his thoughts on developing successful, and not so successful mediation techniques. He encourages parties to try it because it is an informal and effective way to resolve issues and disputes. To be effective, however, parties must voluntarily enter the process, be willing to take risks and think outside the box.

He outlines his strategy for an effective mediation:

1. Set the Table Ritual

   1. He starts every proceeding the same way, with a joint opening, all parties present. He cautions against over familiarity with any participant.

   2. His mediators all read aloud an “Agreement to Mediate” form, used to clarify the purpose of the mediation, establish expectations for parties, explain the process, and stress the neutrality of the mediator and the informal nature of the process.

2. Finding Mutual Interest

   1. He shifts parties from positions to mutual interests, by asking the question, “What would you like to see happen?” He looks for something positive upon which to begin building an agreement.

3. The Shuttle Diplomat

   1. Keith calls himself “A Shuttle Diplomat,” utilizing the caucus style of mediation (meeting with each side separately) to discuss the strengths and weaknesses of each party's position. He escorts one of the parties to a separate room while he talks to the other side.

   2. He suggests dealing with one issue at a time.

   3. Recognize small successes (agreement).

   4. Try to make sure people understand what is going on.

   5. When it gets emotional, shift to a business decision model as a way to gain perspective that might ultimately lead to agreement. Keith recalls a mediation, for example, where an $800.00 chiropractic bill stood in the way of a $78,000.00 full, final and complete settlement. He pointed out to the insurer that sometimes principle can be a very expensive commodity and that in this case, every extra week that went by without coming to a full, final and complete settlement was costing the insurer an extra $750.00 in benefits. The point was not lost on the insurer and the matter settled.

   6. Be creative about the process––try structured settlement as an option if possible. Suggest unique ways to reach consensus.

   7. When parties are far apart, talk to each separately and tell them what you think of their case. Carry an offer to the other side if given permission to do so.

   8. It is important to find out parties' non-monetary interests. Often the impasse is not based upon money. Keith cites an example where one party wanted an income stream until he became eligible for Medicare. Another party wanted to retire and save face, pride being a factor. He was the breadwinner and equated loss of work with shame. Often times these non-monetary interests are culturally rooted and the mediator needs to be able to recognize that in order to be successful.

   9. Give parties the time they need to work through the issues. “You can't hurry up the dance,” according to Keith.

4. Mediator Behavior that Reduces Mediation Effectiveness

   1. Do not claim ownership of the outcome.

   2. Do not hurry the process.

   3. Do not assume responses, listen to what is said and repeat it to the parties.

   4. Do not interrupt inappropriately.

   5. Do not overly direct by encouraging parties to do something.

   6. Do not leave the neutral zone. When a party asks if they should accept an offer, remind them you are neutral and cannot answer that question.

The IAIABC Mediation and Dispute Resolution Handbook referenced above is intended to be a state of the art resource, complete with topical updates and additions, as they become available. It pulls mediation program information together from across the country and incorporates the best of what each jurisdiction has to offer, including forms, regulations, etc. so that jurisdictions can learn from each other. Look for the next addition to be a “primer” on practical mediation tips, similar to what Keith offers above. The guidebook was recently published online at www.iaiabc.org. A Medicare Set-Aside guide is also available for your review online for $35.00 on the IAIABC website.

The IAIABC ADR/Judicial Committee's next undertaking will be to attempt to measure the effectiveness of jurisdictions across the country at resolving workers' compensation disputes. A comparative analysis will be attempted, including how long it takes to settle cases, how many tiers are involved, complexity, and costs by jurisdiction. Keith believes that once you quantify the costs associated with the dispute resolution strategies deployed along the dispute resolution continuum, you will have decision support for concentrating your dispute resolution resources at the most cost effective juncture along that continuum. “The goal is to build a better mousetrap”, Keith explains.

I have a feeling that Keith Keesling will continue to look for ways to improve that mousetrap in the future. And Missouri will be watching.