[CLC-Discussion] Request for mediation experiences
Bruce Partington
bparting at cphlaw.com
Fri Jul 20 20:37:32 PDT 2012
Somewhat echoing another Bruce's comments, getting insurance issues
squared away before mediation can be -- OK -- is always -- very
important. I have other war-stories, but I'm limiting my comments to
insurance related issues. My general perception on this front is that
for a mediation to be most effective, the parties need to be fully
versed not only on the merits of the case, but also on insurance
coverage issue relating to the claim.
A. AI coverage, and the actual endorsements. AI Endorsements
"ain't what they used to be" and if coverage claims relative to AI
endorsements are important, flesh that out before mediation. Arguing
about it at mediation is entirely unproductive, and can derail
settlement. (Right, Bruce!?)
B. Having "real" adjustors attend the mediation, rather than
"rented" adjustors. The entire value of in-person mediation is lost if
the real authority the mediator has to deal with is a person on the
phone. Maybe this is an area where video conferencing (skype, etc.) can
add value, but that "presence" needs to be continuous or the value of
the "process" of mediation is lost.
C. The mediator can set a "deadline" for coverage issues. I
have had many mediations where an adjustor walks in and injects, for the
first time, "there's no coverage" and the mediation rapidly descends to
an impasse. What if the mediator sets a rule that coverage positions
must be definitively disclosed X days before the mediation (of course
reserving rights to subsequently disclosed facts, etc.)? Of course I
know that coverage defenses must be disclosed far earlier than that, but
cases evolve.
D. Require that coverage issues be addressed in mediation
summaries if there are potential coverage issues. I fully realize that
insurer-retained defense counsel cannot address those issues, but if
there are going to be serious coverage issues then coverage counsel
should chime in as part of the mediation process early -- rather than
late (at the mediation).
E. Consider separate opening presentations where coverage
issues are raised and presented separately and not to the entire group.
A progression of folks in a group setting saying "we think there's no
coverage so go away" leads to a predictable intertial response as things
go around the table.
F. As part of the initial materials, require that insurers
disclose to the mediator and to the claimant what they are treating as
the occurrence date or dates. If there is a possibility of multiple
"occurrences" over multiple policy periods, that (or its absence) should
be disclosed up front and in advance.
G. Require that ALL of the disclosures above be made not solely
to the mediator, but also to the party whose claim is at issue for the
insurance coverage. Global disclosure to all parties may not be
appropriate, but it is entirely appropriate as to the claimant relative
to the insurance policy at issue, and likely those "upstream" from that
claimant.
Remember, all of this can be couched within the mediation privilege and
confidentiality act, which mitigates insurers' risk in these
disclosures.
So many war stories, so little time. Hope the seminar goes well.
Bruce D. Partington
Clark Partington
bpartington at cphlaw.com
Direct: 850-432-1399
Fax: 850-432-7340
*Board Certified in Construction Law
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-----Original Message-----
From: clc-discussion-bounces at lists.flabarrpptl.org
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of
Alexander, Bruce G.
Sent: Friday, July 20, 2012 3:33 PM
To: Larry Leiby
Cc: clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Request for mediation experiences
Larry, I have 2 quick war stories and one procedural suggestion:
1. Make sure counsel and the Mediator are well versed in what specific
adjusters will be attending from what specific insurers. I recently had
a mediation where, after a year of intense third party claim litigation,
it was not realized until 4 hours into the Mediation that the insurers
for the Third Party Plaintiff and Third Party Defendant were sister
insurers, effectively meaning that the insurer was suing itself, and
paying 2 law firms for that privilege. Suffice to say the case settled
within 15 minutes of spirited phone calls made.
2. After 11 hours of Mediating a multi million dollar claim, we came
down to a 50k delta which NO party would budge to close the gap.
Reaching into my pocket I pulled out a quarter, looked at the 2
principal adjusters involved and told them to call it, loser to pay the
50k. I flipped the coin, heads lost, case over.
Now as for a practical suggestion, for multi party matters, I have found
it effective to go around the table of attendees, have everyone
introduce himself and materially, state the number of years of
experience they bring to the table within their respective fields. This
generally results in establishing that there is a combined level of
experience in the room of many hundreds of years, in some cases over
1000 combined years! Then, the statement becomes easy to make, there is
NO WAY that a group with that experience can ever allow a judge or jury
to resolve their collective fate.
Have fun at the seminar, it looks to be a fantastic event!
One last personal note. I decided not wait for the Tesla, So I picked up
a Fisker 3 weeks ago... Very fun to drive, whether on battery or fuel.
Best always, Bruce
On Jul 20, 2012, at 3:34 PM, "Larry Leiby"
<Leiby at mkpalaw.com<mailto:Leiby at mkpalaw.com
<mailto:Leiby at mkpalaw.com%3cmailto:Leiby at mkpalaw.com> >> wrote:
The Broward County Bar Association and JAMS are co-sponsoring a seminar
October 5, 2012 on "Effectively Representing Your Client in Mediation."
This will be a panel discussion for three 50 minute hours on the topic,
followed by a one hour discussion on mediator ethics. We have 7
panelists - four mediators, a commercial plaintiff's trial lawyer, a
civil defense lawyer, and a manager of claims for a large hospital group
(end user). We have Fran Tetunic, who serves on the STATE COMMITTEE ON
ALTERNATIVE DISPUTE RESOLUTION RULES AND POLICY to lead the ethics
session.
So why am I sending you what appears to be a shameless plug for a
seminar (which is not actually the seminar announcement), particularly
if you are not near Broward County? There is a reason.
We seek your input on any remarkable experiences that you may know of
that we can address in the seminar. These could be a remarkably good
practice, a remarkably bad practice, or an ethical issue that you have
experienced or is of interest to you. We have a number of issues to
address BUT WE WANT MORE. You are out there in the trenches of
mediation (as are our speakers) but we seek the vast input of more than
just the speakers. Please share.
If you can relate any such remarkable experiences please send to
lleiby at jamsadr.com<mailto:lleiby at jamsadr.com
<mailto:lleiby at jamsadr.com%3cmailto:lleiby at jamsadr.com> > (not a reply
to the entire listserv). It will be appreciated and you will enjoy
endless blessings throughout your life . (Actually, no guaranty on that
last part.)
Sorry for the intrusion and thanks in advance for your responses.
Larry R. Leiby, Esq.
Fellow, College of Commercial Arbitrators
JAMS Global Engineering and Construction Group
600 Brickell Avenue, Suite 2600
Miami, FL 33131
Phone: 954-895-9198
Fax: 305-371-5288
lleiby at jamsadr.com<mailto:lleiby at jamsadr.com
<mailto:lleiby at jamsadr.com%3cmailto:lleiby at jamsadr.com> >
<image001.jpg>
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