Guide to DBA Mediation
A majority of Defense Base Act (DBA) claims are settled at mediations. This guide to DBA mediations discusses when mediations typically take place, how DBA mediators are selected, what goes on at DBA mediations, and what happens if DBA claims are settled at mediations.
Pre-COVID Pandemic DBA Mediations
Before the COVID Pandemic, Defense Base Act mediations were typically in person at hotel room conferences, near where injured workers lived. At mediations, workers, or contractors, would be in one room with his or her DBA lawyer, and in the other hotel conference room, the lawyer representing the DBA insurance company and sometimes the DBA insurance company adjuster. It is extremely rare that any representative of an injured worker’s employer attends mediation. In some cases, all the parties began mediation in one room together for short openings from both parties and the mediator. Afterward, in those cases, the parties separated, and the mediator would go back and forth between each room attempting to negotiate a settlement. DBA Mediations typically take 3 – 4 hours, however, there are some that last 6-7 hours and longer.
Defense Base Act Mediations During COVID Pandemic
DBA Mediations were slow to return at the beginning of the Pandemic. When they did return, the DBA mediations were set using Zoom. Here, the injured workers, lawyers, mediators, and adjusters were in separate “Zoom” rooms. This is the way it will probably remain as the DBA insurance companies, such as AIG, Starr Indemnity and Liability, and Allied World National Assurance Company, or the third-party administrators, Broadspire and Gallagher Bassett, do not have to pay for their hired attorneys to travel, nor do they have to pay for the costs of the hotel conference rooms, etc.
The Mediator’s Job
The job of mediators is to settle DBA claims at a mediation. Mediators are under no obligation to settle claims fairly for injured contractors. The job of DBA insurance company lawyers is to impress their “employer” by settling cases as quickly, and cheaply as possible. DBA insurance companies care about one thing, making money. The insurance companies, and the adjusters, make money by delaying, denying, and defending claims. At mediation, insurance companies add to their profitability by settling claims for as little as possible. They are not there to help contractors.
The DBA Lawyer’s Job
Now, the job of DBA lawyers in representing injured contractors at DBA mediations, is one thing, to maximize the settlements for their clients. In doing so, personal interaction is needed between clients and lawyers. Mediators have been through countless mediations and experienced DBA lawyers have been through many mediations. The author of this article has attended many hundreds of mediations in his career.
An injured contractor, on the other hand, most certainly, has never attended mediation in his or her life. Preparing clients in person the day before mediation, and attending mediation in person with injured workers, is critical to a successful outcome. The author of this article, Tim Nies, attends DBA mediations with their clients in person and spends many hours on the phone in the weeks before mediation, and in person, the day before mediation, preparing his clients for mediation. Tim Nies and his clients attend the mediation on Zoom together or in person with all parties attending.
When DBA Mediations are Typically Scheduled
Mediations in Defense Base Act claims are typically set after a majority of the medical care and/or psychological care (for PTSD DBA claims) is completed. For example, if a worker requires a spinal fusion as a result of an injury at the US Embassy in Baghdad, Iraq, mediation would not take place until after physical therapy is completed, and the injured worker’s surgeon places his patient at maximum medical improvement (MMI). This probably would not be for several months after the surgery.
DBA insurance carriers, such as Starr Indemnity, will also seek an independent medical evaluation (IME), with one of their own doctors. Mediations are set sometime after the lawyers for injured workers send the defense attorney a “demand”, detailing the injuries, background, and medical care, including future medical care, of their clients.
How Mediators are Selected
There are very few qualified DBA mediators in the United States. Not every mediator is able to mediate complicated Defense Base Act claims. Defense Base Act mediators must know the Defense Base Act and the Longshore and Harbor Workers’ Compensation Act, in addition to being expert negotiators. Defense attorneys and DBA insurance carriers will only agree to certain mediators and DBA attorneys fighting for the rights of their injured clients will also only agree to a select few mediators. Both sides want a mediator who will not give up easily after hours of mediation.
A skilled DBA mediator must push both the DBA insurance company and the injured claimant to settle the DBA case right then and there at mediation. Sometimes, the work of savvy mediators in the days after failed mediations has resulted in settlements of those DBA claims.
What Happens After DBA Mediations
If a DBA claim is settled at a mediation, it will likely be another two months until the injured worker will receive the settlement funds. After the mediation, the DBA insurance company lawyer will prepare a DBA settlement agreement and order the check for the injured Claimant. It typically takes about two or three weeks for the insurance company lawyer to complete the settlement agreement.
Upon receipt of the DBA settlement agreement, the DBA lawyer for the injured contractor and his client will review the agreement for accuracy. If the language is acceptable, the lawyer, and his client, sign the agreement and send it back to the DBA insurance company lawyer. The DBA insurance lawyer will then also sign the agreement, and send it to the Department of Labor to sign off on the settlement agreement.
Once the Department of Labor receives the agreement, it has 30 days to approve the agreement. If the agreement is not approved within 30 days, it is deemed approved. Once the parties agree to the settlement agreement, the DBA insurance company must have the money in the injured worker’s hands (or account) within 10 days. If they do not, the DBA carrier will have to pay an additional penalty to the injured worker.
Contact our DBA Lawyer, Tim Nies, an Army Ranger Veteran
For more information about DBA mediations not able to be addressed in this short Guide to DBA mediation, call DBA attorney and Army Ranger Veteran, Tim Nies, of Van Riper and Nies Attorneys at 877-DBA-LAW1 or 772-283-8712. DBA lawyer Tim Nies represents workers injured in Iraq, Syria, Afghanistan, Somalia, Niger, and throughout the world. It is expected that the Defense Base Act will apply to workers injured in teh reconstruction of Ukraine. Please see Tim Nies’ article on the DBA and Ukraine reconstruction.