The “Duffers” Guide to Mediation

Much has been written about the “trials and tribulations” of mediation. Indeed, generations of competent claims handlers have been thrown into paroxysms of fear at the very thought of having to attend a mediation conference.

Notably, some insurers do have designated “mediation experts”. And, these experts do seem to have developed a strategic “bag of tricks”. These include nodding meaningfully at the requisite times, sighing when the claimant’s case is being put forth, raising their eyebrows (or, most telling, shaking their heads and whispering to counsel that they “need to take a bathroom break”). Clearly, these tactics, refined over many mediations, unnerve the opposition to the point that they capitulate and fold up their files with a settlement at a mere fraction of their original claim. Be warned though, that such expertise is not gained over-night! How then is a mere claims handler (perhaps facing a mediation for the first time), able to mediate effectively, devoid of all that “knowledge” that experience, designation and decent coffee, brings?

Rules of engagement

The first rule for a duffer to mediate effectively is “never read the file before arrival at the actual mediation”. In the first instance, prior knowledge will taint the ability to “shift with the wind” as facts, uncovered by their employer’s investigation, emerge to devastate any preexisting notion of a “reasonable settlement figure”. In the second instance, common sense dictates that, once someone has made their mind up, it is very hard to change it. Think back, to your last performance review, did your comments after the fact really make any difference?

The second rule, and this is most important, is to arrive at the mediation early, so that you may share what passes for coffee with your counsel and, whilst sipping away, surreptitiously and hastily scribble down notes, based on what he/she has to say about the case. This will, of course, form the basis for your own opinion as the matter progresses. The next step is not without difficulty, but if properly executed, will establish you as a force to be reckoned with. When the “other side” appears at the table, nod quickly at the claimant while, at the same time, checking your watch. This demonstrates that:

You have a watch;

Your time is precious; and

You have already wasted too much time on this mediation.

Never seek an introduction to the claimant’s counsel – they are not your friend. Their success, prestige and ability to pay their mortgage, depends upon their ability to force you to pay far more than your authority on the file. At the table, allow opposing counsel to present their case without interruption. It is considered bad form to snigger. This is not to say that you cannot turn to your file and doodle furiously, thus conveying a sense of indignation which presumably leaves opposing counsel to wondering exactly where they “slipped up”. Do not feel bad that you have not interrupted his/her presentation, as he/she will do exactly the same to your counsel when presenting your case.

When the claimant’s case has been put forward, often with colorful but puzzling and irrelevant Power Point charts, vacation photos and copies of “similar cases”, there will be a break for muffins. Do not underestimate the importance of this break, as this is when your counsel will provide their real opinion. Listen carefully, and make notes of your counsel’s view, as this is precisely the information that, following your counsel’s presentation, you will (to the consternation of all involved) reiterate in point-form for emphasis, as your company’s position. This will gain you such “enormous respect” that over time you will gain a reputation as a fearless mediator not to be trifled with (or…maybe not). So much so (you may daydream while having occupied yourself during earlier doodling), that litigators apprised of your involvement with a mediation, will rush to settle lest they be exposed as the less than fearsome forces they have presented themselves to be to their clients (to whom they had no doubt promised too much to).

If you do not wish to follow this path, do not overly concern yourself: you still get the muffins and coffee (that you paid for anyway), and when all is done, you can either claim credit for being a successful “eminence gris” behind the successful negotiations, or in an otherwise outcome to the proceedings, you can disclaim responsibility. Is that not that what you pay counsel for?