In this fifth episode of the mini-series on insurance and mediation, Host, Jean Lawler–commercial + insurance mediator and arbitrator–draws from her deep knowledge of the insurance industry, insurance policies and the various risks they insure against to talk about her five tips for mediating where insurance–an insurer–is going to be paying the settlement money. Episode highlights include:
- Why lawyers should prepare early and share information in mediation
- Why lawyers should draft a mediation brief that can be shared with the other side
- Why civility matters
- Why it’s important for the mediator to understand what a lawyer’s client needs in mediation
- What to do if the case hasn’t settled at the end of mediation
To read the full episode transcript please see the Podcast Website.
About the Host:
Based in Los Angeles, CA, Jean Lawler is an attorney and mediator, focusing on commercial, insurance and civil litigation matters pending at the trial and appellate levels - wherever filed. She regularly mediates a wide variety of insurance, business, and tort matters, as well as federal ADA accessibility lawsuits re architectural barriers and websites. CIPP/US (Certified Information Privacy Professional) certified, Jean also mediates matters involving data breaches, ransomware, and cyber losses. She has mediated hundreds upon hundreds - thousands - of cases over the years with a myriad of issues. For a more detailed sampling of the types of mediations that she has conducted and participated in, both when in practice and as a full-time mediator, please refer to her web page detailing Representative Matters.
Prior to becoming a full-time mediator in 2017, Jean was a Senior Partner in a Los Angeles based litigation firm, representing corporations, professionals, non-profits, individuals, and insurers in a broad range of matters, at trial and on appeal - mediating hundreds upon hundreds of cases over the years. Her legal experience has been diverse and international, and she has a deep knowledge of the insurance industry, insurance policies and the various risks they insure against (primary, excess, reinsurance, program, surplus lines, London Market, and international insurers). She also served as a Managing Partner of her former law firm, at times chairing the firm’s Insurance Law, Cyber & Privacy Law, International Law, and Business & Real Estate Transactions practice groups and, ultimately, served her many clients as counselor and trusted advisor.
As she would tell you if asked: “I absolutely love what I do! I would be honored to serve as your Mediator or Arbitrator.”
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[intro music]
JEAN LAWLER:
Hi, I’m Jean Lawler, your host of the ROADS TO Resolution ~Closure and ~Certainty podcast. It’s a pleasure to be here with you today. You know, as a mediator, as I’ve often said, I’m invited into other people’s lives for a few hours, and it certainly opens the door or opens a window into many many worlds. So what I wanted to talk about today as the fifth and final episode of my little mini-series on insurance and mediation is: mediating where insurance–an insurer–is going to be paying the settlement money, where it’s insurance money that’s paying the settlement. I have five tips for you, so let’s get started on those.
First and foremost, I can’t stress how important it is to prepare early for the mediation. To be successful, both attorneys, the plaintiff attorney and the defense attorney do need time. It can’t be a last minute thing–to have the best chance for success anyway. From the plaintiff's perspective, the plaintiff needs the time, the plaintiff counsel needs the time to work with their client and essentially, both need to be able to manage client expectations. So prepare early.
Share information. If there’s documentation that is going to decide major issues or could be really convincing to the other party, whichever way it goes, then share that. You can share it under the mediation confidentiality laws, rules that may be applicable. Although, do keep in mind that some state may not recognize another state’s confidentiality, so keep that in mind. But share, share what needs to be shared so the other can make an informed decision. Whether it's about their exposure or the true amounts of money involved, or receipts, medical records, you know, whatever it might be. Share and share that early.
And then also, on an early basis, time basis, share as much of your mediation brief as you can. Draft one that can be shared, actually, is probably the better way to put it. And then you can let the mediator know the confidential things separately, in a separate writing or small brief on that, or in a pre-mediation phone call. But by sharing with the other side a mediation brief that is not just being blustery or you know, “We’re going to do this, we’re going to do that,” but is fact-driven and is legally sound, that is what will really help the evaluation that either attorney has to make and then have the ability to better manage the client expectations.
Think if a plaintiff lawyer has to meet with his client, the client has maybe been injured or whatever may have big ideas about how much they are entitled to be paid and maybe that’s not what a case would settle for, but maybe it's better that the case settle. Or maybe actually the reverse, maybe the case is really worth a lot of money and it's not just postering for purposes of settlement. So anyway, one way or another, go early on that as much as possible.
And from the insurer’s side of it, from the defense side, the defense side (you should know about, plaintiff lawyers)... The defense attorney needs to provide his client or her client with an evaluation and evaluate judgment potential and maybe, and be prepared to talk settlement ranges. And then the insurer, depending on the case, the claims representative, the company–maybe they roundtable it or whatever. But they do need time to be able to look at the issues, look at the case, ask for more documents (if that’s needed). So the earlier and the sooner that you can share some of that, the better.
And as I mentioned in other podcasts that I’ve had cases before where we had a pre-mediation call and it became clear that one attorney says they needed X and the other attorney says, “well, I’ll give it to you,” and they did and we moved the date back for the mediation, but then when they came to mediation they were prepared and able to resolve that matter, and in fact they did resolve the matter.
So those are those kinds of things, and then ultimately, manage client expectations. Prepare the clients early for that. Okay?
Then, what about when you get into the mediation itself? You will have a claims representative plus defense counsel on the defense side. You’ll have plaintiff counsel and their client on the plaintiff side of it. And on this one, I do say this, mediation conduct is important. Remember civility. Remember everybody is there to do a job. And civility, civility, civility will get you so much further than if you…either side starts slamming their books down and threatening to walk out or whatever it might be that is an exaggerated type of activity or an emotional type of situation.
Make sure the attorney, actually the mediator, understands from the attorney what’s going on with their client and what they might need or not need. Maybe there’s a client that needs to really be listened to. Maybe the client needs to be able to talk to the claims representative. Maybe the claims representative wants to talk to the claimant. Every case is unique. Every mediation session is unique, and you need to go with that. But most of all, the conduct is important and how the outcome happens… usually is best if there's been very professional conduct, even when there's disappointment or not being very happy with the demand or an offer. Professionalism always wins one way or another.
So then after you have come to the conclusion of the mediation and ideally you’ve been able to settle the case, but if you’ve not settled the case that day, that doesn’t mean the case can not be settled. I would recommend that you use that mediation session as a way to then lead to further discussions. Whether it’s through the mediator, through follow-up telephone negotiations, or another session, or just the lawyers talking to each other. Hopefully you’ve gotten to the point where you see where there’s maybe a gap in information, if that’s it, or other things that can be done. Maybe there’s something that needs to be done to then allow the case to be in a better posture or position for settlement. And you can agree to go ahead and do that and then reconvene at whatever time.
I have had mediations where it’s clear early on that the parties need to do something else and they are definitely not going to settle the case without certain information. And we’ve agreed even to pause the mediation, reconvene in a month or whatever time it is, and then work with the counsel to agree to a schedule by which they would share additional information or something else from a factual standpoint that’s come up, or even legal standpoint.
So these sorts of things are definitely important and I’m sure civility will always rule. Right?
Anyway, those are my five tips, and I think that you’ll be good to go. So thank you again so much, and that, with this particular podcast and video, brings to a conclusion my little mini-series of five videos or podcasts about mediating where insurance is involved. So thank you so much and goodbye.
[outro music]