12 Nov Setting Up For Success at Mediation: Top Mistakes and How To Avoid Them (The Defence Perspective)
In order for you to achieve the best possible result for your client at mediation, you’ll need to ensure you are organized and have a good grasp on your client’s case. In this post, I provide tips for setting up your mediation for success, both before and during mediation.
Mediation is not new or innovative. It is part of the litigation process and should be planned for (just as you plan for other events in the litigation).
- Are there advantages or disadvantages to conducting mediation before oral examinations for discovery in your particular case?
- Should mediation take place sooner than later in the litigation process?
- Are there others, beyond the parties, who should attend the mediation? What do their schedules dictate in relation to timing?
- Are there “extra-litigation” considerations, beyond the strengths or weaknesses of the case, which will impact on the timing of or conduct of the mediation?
- Are there issues in relation to timing to book the mediator of choice? Some mediators book 6-12 months or more into the future.
In general, consider:
- Early mediation when the plaintiff or claimant is represented by inexperienced counsel.
- Later mediation, after the defence has been fully developed, when dealing with more experienced counsel acting for plaintiffs or claimants.
Work backwards from the mediation date: Understand when the insurance client will be meeting with superiors or the committee within their company to obtain authority to deal with the matter at mediation. Sufficient time in advance of that date must be allowed for the insurer to receive a report on examinations for discovery, a report on or receipt of documents provided in answer to undertakings, experts’ reports, mediation memoranda and the like.
2. MEDIATION PROTOCOLS
If there are mediation protocols which would allow for defence counsel to cancel the mediation upon breach of the protocols, make sure that those protocols and rules are well known to the other side and to the mediator (so that there is no question as to who will bear the cancellation account of the mediator if the mediation is cancelled by reason of a breach of protocols). For example, if reports from experts for the plaintiff are received last minute, it may be impossible, on a practical or logistical basis, for the defence to respond to the reports. Moreover, it is probably impossible for an insurer to properly consider the opinions to the extent that they might impact upon reserves, authority conferred at mediation or settlement targets at mediation.
Where possible, whether by way of the insurer’s mediation protocols or otherwise, demand a listing of assessable disbursements from counsel for the plaintiff in advance of the mediation (even if it is out of date by the time of the mediation (though, if counsel for the plaintiff are adhering to the insurer protocols relating to late reports, there should be no additions to the list of disbursements)). This will assist your client in obtaining appropriate authority to deal with the claim (since assessable disbursements can be a surprisingly large and challenging number with which to contend if only appreciated at the mediation).
3. CONDUCT A SETTLEMENT MEETING WITH OPPOSING COUNSEL BEFORE THE MEDIATION
This is a technique that is under-used and under-appreciated. If used correctly, this gives defence counsel and the insurance claims representative a chance to receive a preview of the opening demands of the other side which should help with determining reserves and requesting authority at mediation. The pre-mediation settlement meeting may shine a spotlight on the holes in your case that you need to address. Lastly, you may very well settle some of your claims at this early stage – before opposing counsel delves deeper into the matter in preparation for the mediation and without incurring the costs of the mediation.
4. KNOW THE REALISTIC VALUE OF YOUR FILE
It is very much an acquired art as to how to assess, negotiate and effectively resolve your claim at mediation or otherwise. Realistically evaluating the claim which you are facing can be compared to putting on a golf course. The best putters look at a putt from several directions. They look at the surrounding contours of the landscape. The same approach applies to the valuation of the claim which you are facing. How would or should you value the claim as: counsel for the plaintiff or claimant; the plaintiff or claimant himself; the judge at the pre-trial conference; the judge at trial; the jury; the appellate court. If you practice this approach, I expect your golf scores will go down and your settlement rates and outcomes at mediation will improve.
5. MASTER THE MATH
In personal injury and insurance cases, mathematics, accounting, taxation and present value calculations are critical to understand. If you do not have a head for figures, make sure to hire appropriate experts who will not only supply reports to assist in the defence of the claim but will also spend time with you to understand the necessary concepts and component parts of a claim and how they fit together and move and change as negotiations unfold at mediation. It is critical to understand which claims are indexed and/or will increase with inflation or productivity and which claims are flat. It is equally critical to understand what is an appropriate discount rate to be applied to each type of claim and why.
6. PREPARE YOUR CLIENT FOR MEDIATION
Provide the insurance representative with a complete copy, with tabs, of both the plaintiff’s brief and the defence brief. Encourage your client to be thoroughly familiar with not only the text of the mediation memoranda but also the backup documents. Their insights into and comments on the claim, whether shared privately with counsel or at the mediation table, can provide valuable assistance to the defence effort. Try to determine what the insurance representative intends to say at mediation [since they can undo what you have done or attempted to do through your opening statement].
7. PREPARE FOR STRUCTURED SETTLEMENTS, IF APPLICABLE
If a structured settlement is likely to be considered, ensure that you are aware of the insurance company’s structured settlement protocols. For example, are there a limited number of structure brokers available to be used in the case? Is the structure to be owned by the casualty insurer or is it to be assigned? Who will bear the cost of the assignment? Is there a restricted list of life insurers acceptable to the casualty insurer? Is it appropriate and advisable to have a structured settlement broker at the mediation?
If a structured settlement is likely to be considered, provide the structured settlement broker with the appropriate medical reports and records so that they can secure an impairment rating. This can improve the return the plaintiff will see on their structure or, put another way, will minimize the principal cost to fund a structure that will address recurring claims or losses in the future.
8. TIMING AND QUANTUM OF OFFERS
An insurance company representative at mediation is a professional (as compared to the plaintiff who is very much in the hands of their counsel). As a claims professional, they will have a good understanding of the value of the claim which you are facing and should be prepared to negotiate. Subject to tactical considerations, there is no good excuse for a lengthy delay in responding to the first demand of the plaintiff. These figures should have been discussed at a pre-mediation conference with your insurance client. Thereafter, the speed with which you respond to offers from the plaintiff or claimant is subject to the “Goldilocks” principle – the wait should be not too long, not too short but just right.
As for quantum, I cannot say that there is a right or wrong approach or formula. The change in the quantum of your offers depends on a number of factors: percentage changes; gross dollar changes; strengths / weaknesses of the component parts of the claim; perceived strengths / weaknesses of the component parts of the claim as reflected in the movement of offers made by the other side; overall total value of the offer.
I believe the key to a series of offers is to project to the opposition or to the mediator where you are going (be that an accurate projection or otherwise).
9. TO SHARE OF NOT TO SHARE INSURER’S AUTHORITY
I am of the view that there are generally more advantages than disadvantages in the insurance client sharing with defence counsel the authority the insurance representative has with which to deal with the claim at mediation and, more importantly, the target figure set as the objective to conclude the matter at mediation.
10. LISTENING SKILLS
My late grandfather had two expressions of which I remind myself from time to time: “You have two ears and one mouth. Use them in those proportions;” and “You can never listen yourself into trouble.” Listen for cues and clues as to where the opposition may be going and how you can successfully steer the mediation.
Please don’t look at your watch or phone when someone else is speaking. Try to look at the other speaker periodically when they are making their opening statements. When you are speaking, direct your comments to the person who you wish to motivate and influence.
You will have an easier time at mediation and generally in your professional life if you can have civil, cordial or amiable relations with the opposition. This applies not only to your relations with plaintiff counsel and also with the plaintiff or claimant themselves. Be or appear to be interested. Be sincere – whether you mean it or not.
Mediation is part of the litigation landscape in Ontario. Many have said that for the litigants, mediation is their “trial” (since the number of cases that actually proceed to and through trial is quite limited). Consequently, approach mediation seriously and thoughtfully, having regard for the ultimate objective you wish to achieve for your company. Mediation is a rewarding and satisfying (and relatively low stress and low cost) means to resolve a lawsuit.
If you’d like further tips, click to read the full article.
ABOUT THE AUTHOR
Vance Cooper is principal of Cooper Mediation Inc. Vance devotes 100% of his professional time to mediating and arbitrating primarily personal injury and insurance cases. He serves as an arbitrator in loss transfer and priority disputes under the Insurance Act.
Vance can be reached at firstname.lastname@example.org or (647) 777-4011. To schedule a mediation with Vance, visit: https://coopermediation.ca/vances-online-calendar/.