Within just moments of arriving at mediation, you can almost instantly know whether the defense is serious about settling the case. You walk into the mediator’s office and sitting alone, by himself, is the defense lawyer. You inquire where the adjuster is, and you’re given the news that the adjuster will be “available by phone” during the mediation. When you hear that the adjuster will not be at the mediation, you might as well go home.
There are no hard and fast rules that can guarantee a settlement at mediation, but there are 3 simple rules that will give you the best chance of success. Ignore these 3 rules at your peril:
Rule #1
The Adjuster Must be Physically Present at the Mediation
You should NEVER agree to mediation unless the defense counsel consents in writing that the adjuster will be physically present at the mediation with authority for the full policy limits of the insurance. Even if the mediator does not require the presence of the senior adjuster at the mediation, you should make this a condition of the mediation.
If the defense is not willing to confirm in writing that the adjuster will be present at the mediation, there’s a good bet that the defense is simply using mediation to learn more about your trial strategy and your bottom line for settlement. You and your clients are taking an entire day of your busy schedule for the mediation (including a spending good chunk of $ for the mediator’s fees) and if the adjuster will not willing to do the same, she is not genuinely interested in settlement.
Rule #2
Insist upon the Presence of the Senior Adjuster
You must insist upon the physical presence of the adjuster who has authority for the highest limit of the insurance policy. You do not want a junior adjuster with limited authority at the mediation, i.e., junior adjusters usually look like Doogie Howser, M.D.
The senior adjuster will have authority to settle the case and will not have to “make a phone call” to get authority. With the senior adjuster, you’re dealing with the real decision-maker and not some junior level adjuster who is having a fun day away from the office. Unless you insist upon the presence of the senior adjuster at the mediation, it’s a safe bet that the senior adjuster will be “out of the office” and will not be accessible by phone during the mediation. This will guarantee an unproductive mediation.
Before agreeing to mediation, you should insist that the defense lawyer sign an agreement acknowledging that the senior adjuster with authority up to the full limits of the insurance policy will be present at the mediation. If the defense won’t agree, you know they are not serious about settling the case and you should refuse to go to mediation.
Rule #3
Money Talks, BS Walks
At mediation, there is always a point that the mediator or defense counsel will ask for your “real bottom line”. You should NEVER answer this question. The defense counsel or mediator can find out your “bottom line” only by doing one thing: offering cash!
When the defense lawyer asks for your bottom line, you simply respond that you will only respond to settlement offers and you will not discuss the parameters of settlement without an actual offer. You might say to the defense counsel, “Make an offer and you’ll find out what our bottom line is. There’s no other way.”
Even if you make the mistake of telling the defense what your bottom line is, the defense will always tell you that your value for the case is “unreasonable” and “way too high” (even if your bottom line $ is conservative, realistic and very fair). Don’t make the mistake of disclosing to the defense lawyer or the mediator your “bottom line”.
How to (Almost) Guarantee the Defense is Serious about Settling at Mediation
You may want to consider demanding that the defense make an initial settlement offer prior to mediation as a good faith gesture. If the defense is says “no” or offers a piddling amount as an initial offer, you know they are not serious about settling the case at mediation…and there’s a good chance you will be wasting your time with mediation.
