Denise Johnson – April 3, 2013
James Curry, a presenter at this year’s Combined Claims Conference in Long Beach, Calif., practiced in-house insurance defense work for 35 years and recently started his own mediation practice based in the San Fernando Valley.
In an interview with Claims Journal, Curry, a seasoned mediator, provided tips to assist adjusters during mediation.
James Curry: The main thing is be prepared to be surprised, but be flexible enough to deal with it, because a lot of times new information comes up at mediation. Rather than just canceling everything, if they learn to be flexible, to realize that it can happen, and to trust the mediator to guide them through it, because a lot of times this last minute information is more a bargaining thing than it is a serious threat to the value of the case. Just be aware that it never goes like you think it’s going to go. Trust the mediator and he or she should be able to guide you through it.
Claims Journal: How should adjusters prepare for mediation?
Curry: They should certainly know their case, know what their strengths are and just as importantly, have an idea of what the weaknesses may be.
Know your attorney. Normally, claims people come with their attorney. If the two of you have a disagreement, try not to let the mediator know it. I speak from that more as a defense lawyer for 35 years. You have to present a united front, because a mediator will sense if you’re divided, and sometimes they use that to try and get the case settled, working one against the other. That doesn’t mean you don’t listen to the mediator, and maybe the claims adjuster’s opinion may be right, and maybe the attorney’s opinion is right. Don’t be afraid to change, but be aware try and present a united front.
Know who the other attorney is. Most states have a state bar website, and it can tell you the background information of any licensed attorney in your state. You can Google most of the attorneys also. Be familiar with who they are so that when they’re there you’ll know, ‘Has this guy tried cases? Is he one of the heavy hitters in the industry?’ Know your opposition – that’s very important.
Listen to your attorney and if you’re paying this mediator to help you, do listen to what he or she has to say because that’s one of the reasons you’re hiring them in the first place.
Claims Journal: Are there different types of mediation strategies?
Curry: It depends on the case. The larger the exposure, the more flexible you have to be, because when you’re talking hundreds of thousands or millions of dollars, a movement either way can be different. When you’re in the smaller cases, it’s easier to take a harder line. It’s the reason, the exposure. The insurance industry is one of risk avoidance.
Claims Journal: Are there some examples of what not to do at mediation?
Curry: Yeah. There’s nothing wrong with espousing your opinion on the case, but don’t be closed minded. I’ve had occasionally a claims person where I’ve tried to explain why the position, if taken, may not be the best but they don’t want to hear it. Again, you’re hiring this person, hopefully, because you have faith and trust in what they’re saying to you. If I see it differently or the mediator sees it differently, be willing to adjust. That’s what I’m saying, be flexible. Be willing to understand that it may not always come out the way you think it’s going to. Also, trust the mediator to know that he or she should never guide you where you don’t want to go or to where you are exorbitantly overpaying the claim, because that’s not what we’re about. Still, the idea is to guide the parties to reach an agreement, and that’s the best thing a mediator can do.