“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”
― Sun Tzu, The Art of War
As plaintiff attorneys know, preparing for a successful mediation requires careful and thorough planning, strategy, client preparation and expectation setting, and, as Sun Tzu wrote in the Art of War, knowing the [defendant] and anticipating their arguments against the case can be just as important.
In the below video link from Insurance Journal, Kevin Quinley, a former insurance adjuster and principal of Quinley Risk Associates, describes mediation preparation from the adjuster’s perspective. In his opening statement, he explains that many adjusters are wary of mediation for a few reasons: fear of a ‘shakedown’ from plaintiff attorneys, client protection—meaning that in mediation the goal is not ‘if’ their client will pay but ‘how much,’ and worry about a Judge’s perception during trial of the adjuster/insurance carrier should the adjuster choose to not attend mediation.
Like plaintiff attorneys, Mr. Quinley explains that adjusters need to be well-prepared for mediation. He recommends that adjusters know all of the key facts and evidence regarding the case, have a good command of the laws involved, and identify the liability, injury and causation issues surrounding the case. He further mentions that adjusters should anticipate any and all arguments that plaintiff’s counsel might introduce during mediation and to ‘round table’ with other adjusters to discuss any weaknesses, comparable cases and the claimant’s jury appeal.
Some common mistakes he feels that adjusters make during mediation are calling the plaintiff the wrong name, showing no empathy for the plaintiff or their family, and ‘blustering’ during opening statements.
In Mr. Quinley’s opinion the timing of mediation or a settlement conference is very significant to its success. Ideally, he thinks adjusters should refrain from mediation until the injury recovery period is complete, lien issues have been resolved, when any lingering anger, grief or revenge feelings have diminished and after all relevant facts are known to both sides.
To listen to the full interview with Mr. Quinley, follow this link: http://www.insurancejournal.tv/videos/11636/
Remember, part of planning for mediation on both the plaintiff and defense sides includes speaking with structured settlement consultants about the case and assessing whether a structured settlement might be appropriate for the claimant (or for the plaintiff attorney to defer contingency fees).
For plaintiff’s counsel--ideally, contact your structured settlement consultant as soon as you have a mediation date set, especially if you would like the consultant to attend mediation as part of your team. Structured settlement professionals can price out life care plans (and compare it to the defendant’s life care plan), economist reports and submit medical records for substandard age rating. Alternatively, if physical attendance is not needed, then attorneys can contact consultants the same day as mediation who can be available via phone or Skype as questions arise or proposals are needed during mediation. But remember, planning ahead is best! Contact your AVITAS Representative today to learn more!