Mediation: Give a Little to Get a Lot

Author: Daniel Fallon

June 1, 2016 10:25pm

I know, I know – as a claims professional you do not want to give a dime at mediation! But in order to get what you want, you need to give a little bit. I am not even referring to money. We all know money is the primary motivator of claimants and plaintiffs, so if you are not willing to throw money at them, you need a strategy to bring them into the realm of reality to reach a reasonable resolution at mediation. Let’s take a look at what you can give your opponent in order to get the settlement you want.

Give information! Many people on the defense side, whether they are the actual defendants, counsel or claims professionals, strongly believe in submitting a confidential mediation brief for the mediator’s eyes only. This is a great idea, as it provides the opportunity to let the mediator know about sensitive or damaging issues you would rather not share with the plaintiff. But you are not doing yourself any favors if you stop there. You need to also educate the other side as to why you are not opening up the vault at mediation to pay their claim at an unreasonable value. A confidential mediation brief only tells the other side you have something to hide. And you very well might! So draft two briefs – one tailored for your mediator, and another for the plaintiff. It will set the stage and manage the plaintiff’s expectations well prior to sitting down for negotiations at mediation, and will save valuable time at mediation by avoiding an education session as to the defense position on liability and damages issues. Instead of giving the plaintiff money, give them the information as to why you are not giving them money.

Give percentages! Rare is the case where the defense claims zero liability but nevertheless agrees to participate in mediation. You are there for a reason. But you are not there to pay everything the plaintiff is requesting. Focus your mediator and opponents on percentages of liability assessed as to the defendant, the plaintiff and, as appropriate, third parties. Accepting some responsibility on your side increases your credibility with the mediator and the other side, who will then need to make some concessions to maintain a reasonable position. Everyone bristles talking dollar amounts. Talking liability percentages is an easier pill to swallow, even if we all know it is just an avenue to reach the ultimate settlement value of a dispute.

Give up! Our natural instinct as defense attorneys and claims professionals is to battle with claimants and plaintiffs at every turn. This is not only exhausting but counter-productive. At mediation, give up where it is reasonable to do so, and dig in where you get the most benefit. When analyzing and negotiating the plaintiff’s damages claim, give up on arguing certain medical procedures were unnecessary in order to acknowledge the plaintiff was injured and should be compensated. This will give you credibility when you eviscerate the plaintiff’s claim for future medical treatment and related costs, as the past treatment was sufficient to bring stability to the plaintiff’s condition. Where past medical costs are minimal compared to future and general damages, give up on the past to get what you want on the future.

Give it all you got! Mediation is a waste of everyone’s time if you have not done your homework, provided that information to your mediator and opponent, and put forth a good faith effort to resolve the case. Be there in person with your client/insured to show you care and are taking the claim seriously. Meet the other side halfway if they are smart enough to make the leap, and put out a final offer that represents a reasonable value of the matter and would cut off future defense costs. If the plaintiff or claimant is too foolish or greedy to accept, you can feel confident in your best efforts to resolve the matter for the right price. When you have drowned your opponent in post-mediation discovery and motions and they have come crawling back to see if your last offer at mediation is on the table, you can let them know why it is not. And when the demand drops precipitously, you can reap the benefits of all you have given.

ABOUT THE AUTHOR: Mr. Fallon specializes in civil litigation in the areas of catastrophic personal injury, business torts and professional liability. He has significant experience executing litigation strategies to the benefit of his individual and corporate clients. Contact Dan at 858.263.4132 or dfallon@tysonmendes.com.

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