I have been an injury attorney since September 2001. Prior to that I served in the U.S. Army’s Third Ranger Battalion before a service-connected injury ended my service. I have attended countless mediations for Defense Base Act claims in my career to date. Mediations in Defense Base Act (DBA) claims are very unique and not every attorney has had the experience of attending DBA mediation. This article is designed to give you an overview of the stage DBA mediations and what to expect.
Mediations in Defense Base Act claims involve several stages, designed to lead to a compromise, which is beneficial to both parties. Here is what you should expect at a DBA mediation.
- The job of the mediator in a DBA claim. There are very few mediators nationwide that both sides will agree upon. The reason is that claims under the Defense Base Act are unique to other workers’ compensation case and injury cases. Not every mediator can handle such a claim, just like not every personal injury lawyer knows how to litigate a DBA claim. Typically mediators in DBA claims are former insurance company attorneys, former attorneys for injured contractors, former Department of Labor representatives, former federal DBA clerks, etc. Unlike a judge, the mediator does not decide the outcome of your claim. The job of the mediator is to resolve the case through airing disputes, identifying strengths and weaknesses of each case and to help reach a compromise by the end of the day.
- Length of mediation and location. For DBA mediations, the mediator, your DBA lawyer and the insurance carrier DBA attorney and possibly an insurance company adjuster, come to where the injured worker lives. Mediators typically arrange for two small conference rooms in a hotel near the airport for the mediation to take place. Defense Base Act mediations typically last for 3-5 hours, however, it may take much longer depending on the complexity of the issues.
- Stage one of the mediation: The first stage, in this author’s opinion, is meeting with your attorney in person before mediation. I always flies up the day before the mediation to meet face-to-face with his injured clients. These meetings oftentimes last for hours because I want my injured clients to be 100% prepared for the mediation and I want to formulate a rock solid game plan for such a critical part of the claim. Pre-mediation meetings over the telephone are not nearly as effective.
- Stage two of the mediation: After all the parties arrive, the mediator, may give an opening statement to all the parties in one room, or give an opening statement to each party separately. Here, the mediator introduces all the parties if they have not done so already. He then will spend a minute or two discussing his or her qualifications and explain the rules of the mediation. Here, the mediator will have all the participants sign a confidentiality agreement, which explains that neither party may discuss the mediation with third parties or use any statements made at mediation in any upcoming hearing.
- Stage three of the mediation: Opening statements of the parties. Each party’s attorney may describe their position and issues in the case. Oftentimes, each party will have submitted a confidential mediation statement, so the opening statement of each party, if they choose to give one, should only last 10-20 minutes.
- Stage four of the mediation: Private caucuses: The mediator will move from one room to the other with offers to resolve issues. The private caucus is the opportunity for each party to meet privately with the mediator in separate rooms. The mediator will go between the rooms probably dozens of times in a day exchanging offers. This is where the real work is done. Sometimes, the mediator spends more time with one party than the other. This is typical. It is also typical for a party’s lawyer to ask the mediator to step outside so that attorneys may speak privately with their client. This is also very common.
- Stage five of the mediation: Closure. If the parties reach an agreement to settle the claim, the DBA mediator will draw up a written understanding of the terms, which is signed by the parties. In DBA cases, a more detailed official agreement, 8i settlement agreement, is drawn up after the mediation and then later sent up to the Department of Labor for approval. Typically, the 8i settlement agreement is drawn up and forwarded to the injured worker’s attorney within two weeks of the mediation.