Nikki DeWitt | The CLM
Recently, I participated in a panel discussion on mediations that focused on negotiation tactics and conflict resolution. Sitting alongside two current judges and a former judge, we broached the subject of what should be done at mediation, followed by what should not be done at mediation per our collective experience and evolving mediation trends. Based on reflections from that discussion, a “Top 10 New Landscape” list was developed of the most important things that can either help or hinder mediation.
Do’s and Don’ts
10. Don’t be late. There is nothing worse than waiting to start because one of the key players is late. Everyone’s time is important, and nobody wants to wait on you. It can lead to a bad first impression.
9. Be professional. Just because you might see the case in a completely different light than the other party does not mean you need to rub their nose in it. There are ways to professionally make your points without coming across as belligerent and rude. And do not forget that you can always use the mediator to make some of your points for you—you just have to ask.
8. Be willing to mediate more than once, if necessary. Sometimes, larger claims can take a few mediations before the case settles. The first mediation can be used to meet the plaintiff, get a feel for how they will present, engage in casual conversation, and obtain information that perhaps you were unaware of. You can always take this back and discuss how it affects your case and what, if any, additional information you might need before you can reevaluate the case or your position.
7. Be willing to stay as long as it takes to get it done. Some mediations can resolve within an hour or two while others can take 10 or 12 hours. If you are making good progress, do not cut it short because you are running out of time. Be prepared to stay until negotiations fall apart or you are at an impasse.
6. Have a call with your counsel prior to mediation and do not forget to include your insured. Discuss counsel’s evaluation and value so you can make sure you, your attorney, and your insured are all on the same page and view the case in a similar way. You do not want to find out at mediation that your defense attorney views the case as worth $1 million but you show up with $100,000 in authority.
5. Understand where the money is coming from and do not be afraid to inform the mediator or the other party. Is there an SIR, captive retention, or large deductible? Knowing who is fronting the first couple of dollars makes a difference and allows you to get the correct party involved and help it understand where you value the case.
4. Be willing to concede when appropriate. Concessions are necessary in mediations if a case is going to resolve. It does not necessarily mean that you were wrong in your evaluation of the case, but merely allows for compromise. It is a good idea to decide what issues you are comfortable compromising on beforehand, and have that built into your evaluation of the case.
3. Do not forget to use the mediator. Ask the mediator for her opinion on your case or perhaps case law. You are paying her to provide an honest, unbiased opinion of the claim, so use her. Ask the mediator questions you have already asked your attorney. Did you get a different answer than the one your attorney provided? Do you need to go back and potentially reevaluate the case based on the mediator’s response?
2. Do not do a surprise dump. Understand the adjuster has guidelines to follow and throwing new information at her at mediation (like $150k more in medical bills) is not something she can entertain. She has just spent the past few weeks drafting a report on what is known to date and requesting authority based on that information and surprising her with new information during mediation is a surefire way to tick off your adjuster and make it impossible for her to settle, so be as open as possible when it comes to relaying new information to the other party.
1. Be prepared. All the panelists were asked the same question when it came to the number-one takeaway for mediations, and it was this: Please, be prepared. If you are not prepared to discuss the case, how is a mediator going to be able to facilitate a meaningful mediation? Plaintiffs’ attorneys that did not properly prepare their client for mediation, defense attorneys that did not know the case, or adjusters that failed to obtain reasonable authority to resolve the claim can seriously hurt a claim’s ability to resolve, or at least impede meaningful discussions.
Remember, just because a case did not settle at mediation does not mean mediation was not successful. Mediation is a process and can take many forms, mirroring cases and involved parties’ differing perspectives. Successful mediation should leave you with a better understanding of the other party’s position, where they are evaluating the case, and why. Those valuable insights can establish next steps for your ultimate case success.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.