The Closer

A Mediation Newsletter June 2010

Ensuring a Productive Insurance Mediation
by James Rainwater

After family law matters, insurance settlement cases must be the most prevalent in the mediation arena. They can be filled with almost as much trauma as the originating incident that brought the parties to this juncture. The plaintiffs are anxious, and the defending insurers are eager to get these cases off the books. It sounds like a simple matter of agreement.

However, these cases are rarely simple. Oftentimes, the plaintiffs have unrealistic initial demands, and the insurers remain steadfast in keeping costs down. What can be done? Both parties need to look at the mediation as a business matter - one that involves realistic negotiation. There needs to be give-and-take on both sides.

Needless to say (but I will say it), both sides must bring with them all necessary and important documents, records, etc., that bolster their cases or add clarification to a point of fact or law. Prior to the conference, fax the mediator any important developments as well as the last offer/demand of the parties. This will aid in the mediation's momentum. Lastly, it is extremely helpful for the plaintiff to have reasonable expectations of the mediation conference. With the alternative being a costly trial, the plaintiff's attorney should emphasize what the likely best offer will be from the insurer.

I have seen these cases get mired in a sea of intransigence created by both sides. And I have witnessed significant movement made by both sides. Though both parities may have predetermined monetary amounts in mind, there is always room for some movement, which may be enough to close the case. This may involve a stern reality check for the plaintiff and a plea for the defense to call the home office for approval beyond the set limit. As I stated, these cases should involve some give-and-take, on both sides of the table, and the mediator can orchestrate that movement toward settlement.

Rainwater Law