As claims at the Department of Industrial Accidents (DIA) keep it busy as ever, one new aspect of its litigation process has never been more popular. The DIA, where workers’ compensation claims are filed, litigated and settled, instituted court-sponsored mediations several years ago as a way to bring trials down and bring claim resolutions up.
Mediations were the brainchild of DIA Senior Judge Omar Hernández as well as several attorneys working with the Massachusetts Bar Association’s Workers’ Compensation Section Council in 2016. The mediation process was brought in to try to add another dispute resolution step to the workers’ compensation litigation practice. Mediations typically take place before the case is tried at an evidentiary hearing.
Both the injured worker and the insurer may voluntarily agree to participate in a mediation that is presided over by a different administrative judge than the one the case is currently assigned to. If the parties agree on the mediation, both attorneys must prepare a short summary of their argument for the administrative judge, who then speaks candidly with all parties about settlement in an effort to avoid a tumultuous hearing over entitlement to benefits.
In my personal practice representing injured workers, I can attest to the fact that my clients overwhelmingly would much rather be part of a process that guides them toward settlement than one that forces them to go through a stressful, oftentimes unpleasant hearing where the risks involved may include a finding that the injured worker’s claims for benefits are not compensable. My experience with the tremendous administrative judges who oversee the mediations has been that their own level of experience and expertise in the field much more often than not will lead to an excellent result for my client while, at the same time, yielding a result that is fair for the insurer.
In discussing the mediation process with Judge Hernández, he is exceptionally proud of the process and how well the entire workers’ compensation community seems to have truly warmed up to it over the past eight years.
“The judges are dedicated to bringing the parties together, even though it’s not on their own cases,” Judge Hernández explained. “They want to get these cases done for each other because it increases resolutions and reduces the risks of going to hearing.”
One of the most beneficial elements of DIA-sponsored mediation is the fact that there is no fee to use it. “It doesn’t cost you anything,” Judge Hernández said. “And in utilizing it, written decisions have come down and settlements have gone up. That’s what we’re all about here — resolving cases.”
Prior to DIA-sponsored mediations, mediations typically only took place outside of the courtroom by private mediators and were generally reserved for big-money cases. Now, with it essentially being an integral part of practice at the DIA, no case is too small for mediation, and a lot of people are taking advantage of that.
Nearly all of the 20 administrative judges have backgrounds as trial attorneys in workers’ compensation; most of them represented both sides of the bar at some point in their careers. The same goes for the five administrative law judges who hear appeals from the hearings as well as for Judge Hernández himself. The benefit of using the administrative judges as mediators is that they are all experts in the pitfalls and nuances of the workers’ compensation system.
“The judges know from their own experience about what the other judge’s style is,” said Judge Hernández. “And bringing that experience to this forum makes for a trustworthy evaluator of the case.”
Judge Hernández indicates that the mediation itself is hyper-focused on settlements rather than on the risk involved with actually trying the case. Mediations often take place during the time between preparing for the hearing and after the injured worker has been seen by a court-ordered impartial medical examiner, so the parties realize that it’s the perfect time to get the case settled rather than taking it to trial.
“There’s more sense of urgency at that time than any other time during the case,” Judge Hernández explained.
For new attorneys or attorneys who don’t practice often at the DIA, Judge Hernández warns about being apprehensive to the mediation process. “It’s a really good system,” he said. “The key to it is to be well prepared and have faith in the judge mediating, regardless of if you think you’re too far apart to settle. We’ve had countless cases that get resolved at mediation because people realize the importance of resolution.”
Judge Hernández made it clear that the administrative judges aren’t the only ones who are responsible for the overwhelming success of the mediation process. He said the attorneys, especially the ones who regularly practice at the DIA, also share in its success. “I applaud the bar for embracing this and making it successful,” he said. “Without the earnestness and the attorneys’ dedication to making it work, it wouldn’t have gone anywhere.”
Of course, not all mediations are successful, and really the only risk is that the parties have to go back to the drawing board and get ready to try their cases at an upcoming hearing. But it’s never for a lack of trying, “I tell the judges not to quit even if it seems impossible,” Judge Hernández said. “Just keep going.”
For more information on the DIA mediation process, interested parties should visit the DIA mediation information page at https://www.mass.gov/info-details/mediations.
Ryan Benharris is a partner at the Law Offices of Deborah G. Kohl in Fall River. For more than 18 years, he has represented injured workers in Massachusetts and Rhode Island in claims for workers’ compensation benefits. He also has tried hundreds of cases at the Social Security Administration in appeals for Social Security disability benefits. Benharris served as the chair of the Massachusetts Bar Association Workers’ Compensation Section Council from 2021 through 2023.