The difference between mediation and arbitration still confuses many people, including those sophisticated in business. A Legal Guide that I just wrote for AVVO explains the difference. Click here to access the Guide.
I was recently reminded that a good mediator needs iron in the pants (or, if applicable, skirt). What does this mean? It means that successful mediations often take time, and a mediator needs to be able to keep the mediation going and to stick with it.
So long as the parties are making progress, a mediator should press forward. Often, this makes for long days. I recently participated in a mediation that concluded at 10:30 p.m. I think my personal record is 1:30 a.m. Both cases settled.
Sometimes it makes sense to continue the mediation to another day. However, that is not always possible. Representatives may have flown in from out of town and may not be able to stay another day. Continuing the mediation to another day may also risk losing any momentum that has developed toward settlement, but that depends on the particular circumstances.
In any event, iron in the pants is a good quality for a mediator to have.
I once had a case in mediation where my client was willing to make a major concession that went far beyond standing on its legal rights, which, in this particular instance, were quite clear. The mediator appreciated our approach, thanked us for being reasonable, and went to the other room.
However, after meeting with the other side, the mediator informed us that the other side did not think that this was a major concession, even though the mediator readily acknowledged that it was.
Apparently unable to move the other side off of an unreasonable position, the mediator started asking my client to make additional compromises. It was almost as if the mediator was saying, "Well, I can't talk any sense into them, so I'll try beating on you for a while, even though I think you are right." Needless to say, this went over in our room like a lead balloon.
The mediator's attitude seemed to be that the other party's subjective beliefs were entitled to at least equal weight with any objective evaluation of the law. Emotions and subjective beliefs are of course often at issue in mediations. But a mediator has to be able to deal with them, not just give in to them.
By giving equal -- if not controlling -- weight to the other party's subjective beliefs as to an objective view of the law, the mediator completely lost credibility with my side. The parties made no progress, probably ended up further apart, and the mediation was a failure.
This result was not surprising. A mediator needs to be an advocate: Not an advocate for either party, but an advocate for a reasonable settlement. If the mediator is willing to take positions that lack support, logic, or that appear -- without reason -- to favor one side over the other, the mediator loses credibility, just as would any other advocate.
Sometimes, litigants ask why they should consider compromising a claim. They may express supreme confidence in the case, stating that "there is no way we can lose," and expressing extreme reluctance to take anything less than one hundred percent of what they want.
Litigants need to remember the "twenty percent rule." The "twenty percent rule" is not an original idea of mine; it was mentioned in a discussion I had a couple of years ago with a very experienced and somewhat crusty old litigator who did a very able job mediating a case for me. The rule does, however, encompass thoughts I have had for many years. The twenty percent rule just puts these thoughts and concepts in a much more compact and easily understood package.
The twenty percent rule is this: No matter how good you think your case is, no matter how good your lawyer is, and no matter how obvious you think the result should be, there is always a twenty percent chance you will lose in litigation.
Why is the twenty percent rule true? Because unforeseeable things happen in litigation. Star witnesses blow up in depositions or on the witness stand, even if they are well prepared. There may be a document or email out there that you (and your lawyer) did not know about when the case was filed.
But, most importantly, cases are resolved by judges and juries. Judges and juries are human beings, and, given that fact, may not see things your way. Judges and juries may seize upon facts and issues that you know are irrelevant to the dispute, but which become highly relevant, because they get to decide the case, not you.
Judges and juries may simply like the other side better than you. Maybe your confidence will be perceived as arrogance. Maybe the other side has an explanation that resonates. If you do not think these factors are important, you should know that, in large cases, parties hire psychologists and sociologists as jury consultants. Jury consultants can provide tremendous insight into how jurors from the area will look at a case, and their research often reveals surprises.
Judges can also be a factor. In a couple of recent important cases, I have actually seen judges simply ignore key legal issues that were potentially dispositive, and that were thoroughly briefed and presented to them. Why? I do not know, but can only assume that addressing the issues would have made it more difficult for them to reach the result they had decided to reach. Intellectually defensible? Of course not, but this stuff happens in the real world.
I am not suggesting that the civil litigation system is irrational. I am not suggesting that you should evaluate a case with the assumption that an irrational result will be reached. Most of the time, the system works and reaches a rational result. Usually, the party wins that should win. But the twenty percent rule does come into effect. And if you are considering a settlement, you should keep the twenty percent rule in mind in your analysis.
What does this mean for mediation? Well, first, it means that mediation is a process parties should definitely consider. Second, it means that parties should have a little flexibility in mediation and with regard to settling. The system is not perfect, and will not always reach the result you believe it should. The old saw that "a bird in the hand is worth two in the bush" may be something you should consider.
This is the last of a series of posts on insurance issues that can arise in connection with the mediation and settlement of claims. The first post provided a general discussion of the issues. The second post discussed mediation of claims where the insurer is reserving rights. This post will discuss mediation of coverage litigation – a contest between the policyholder and the insurer.
There is no magic to resolving coverage disputes. There are, however, a few points that separate this type of mediation and claim from other commercial disputes.
Insurance coverage battles tend to be hard fought. There is often greater strife between policyholders and insurers than in cases involving other litigants.
From the policyholder’s perspective, the insurer gladly took the policyholder’s premium, and has now failed to perform. The insurer has forced the policyholder to engage counsel, often at considerable cost, in order to get the insurer simply to do what it should have done in the first place. A mediator may thus have to help diffuse the policyholder’s emotions.
The cause for the insurer’s attitude may be more difficult to ascertain. As a general rule, insurers seem to hire coverage lawyers with a pugilistic bent. These lawyers have probably recommended a coverage position to their client, and now have to defend it. The claims handler to whom they report may have encouraged the position, and may also be bent on defending it. The mediator will thus have to assess the strength of the carrier’s position. If the carrier’s position appears less strong than the carrier believes, the mediator’s challenge may be getting the carrier representative to understand there is some real risk.
Legal issues often predominate. More than most cases, coverage cases usually involve legal disputes. The mediator will thus want to encourage the parties to cover all outstanding legal issues in the mediation statement. In preparing for the mediation, the mediator will need to understand the legal issues fully, and may need to be prepared to offer an independent assessment at some point during the mediation.
If the issue appears to be a close question, reminding a carrier of some of the basic rules may be helpful. These rules typically include that ambiguities will be construed against the insurer, and that any exclusions will be interpreted narrowly.
The risk of a bad precedent may be significant. It must be remembered that insurance coverage disputes typically involve form contracts that tend to be litigated repeatedly. Thus, if a case involves an undecided point of law, the carrier may wish to settle, if only to avoid the risk a judicial precedent that could affect other cases.
Carrier representatives often need to justify a settlement internally. Insurance companies often have complicated reporting structures with multiple levels of authority. If a claims representative initially took an aggressive position regarding a claim, it is a safe bet that the representative has duly reported and defended the position to superiors. If a settlement would result in a substantial change in the company’s internal evaluation, the claims representative will need to justify it.
A mediator can be very useful in this regarding in providing feedback. If the feedback is specific and well-reasoned, it may provide the claims handler with the information necessary to change the internal evaluation, and hence to allow the case to settle.
However, it may well be impossible for the carrier to process this feedback during a mediation session. Therefore, coverage cases are more likely to involve multiple sessions than other cases.
Look for signs of flexibility coming into the mediation. Insurance companies often mediate coverage disputes when there is some concern that their position will not be sustained. The mediator should determine if the carrier has recently replaced its counsel or brought in additional counsel, as such a change may also reflect either concern or a changing attitude. Similarly, the mediator should determine if the claims handler has been in the case since the beginning or is new. A new claims handler may also signal a different attitude.
Bad faith, or extra-contractual liability, can be significant. As discussed in the second post in this series, carriers typically want to avoid exposure for bad faith, or, as the carriers sometimes put it, extra-contractual liability. If the policyholder is claiming bad faith, the mediator will want to understand the basis for the claim and the strength of the claim under applicable law (bad faith risk can vary substantially from state to state).
If the risk of bad faith appears minimal, the carrier is probably not going to give it much weight during negotiations. If there appears to be some real risk, then avoiding extra-contractual exposure, may motivate the carrier to settle. At the same time, the insured will need to understand that it is far easier to settle a claim if any settlement payment is “contractual” and not “extra-contractual.”
Insureds need to understand they can lose, too. Insurance carriers tend to be represented by coverage experts. Carriers do not lose every coverage battle. On the contrary, they often win.
Insureds may want to see things only their way. They may not understand the legal nuances relied upon by the carrier. Mediators can help insureds understand these issues, but, most importantly, that a win is probably not a sure thing.
Mediating coverage litigation does provide a challenge. However, a good mediator, particularly one that understands the coverage issues, will probably be able to help the parties reach a settlement.
In the last post, we covered some of the basic issues regarding insurance and mediation, and issues that can arise when an insurer is involved providing a defense to an insured without a reservation of rights. This post will deal with the issues that can arise in a mediation when an insurer is providing a defense, but under a reservation of rights.
When an insurer reserves rights, it is putting the insured on notice that there may be reasons that the claim is not covered. In some states, a unilateral letter from the insurer can accomplish a reservation of rights. In other states, the insured must consent in what is often called a non-waiver agreement. Of course, the law varies from state to state and guidance should always be sought from a lawyer licensed in the particular jurisdiction.
The scope of a reservation can range from relatively insignificant (such as the possibility of part of a claim not being covered) to very significant (such as an exclusion that may serve to bar all coverage). The effect of a reservation on an insurer’s position at mediation can thus range from very insignificant to highly significant.
Here are some of the issues that the mediator will need to understand, preferably before the mediation begins:
The scope of the coverage issue. A mediator involved in a mediation will want to know the following: (1) what is the basis for the reservation of rights? (2) What is the significance of the reservation? Is it minor or a potentially major barrier to coverage? If the coverage issue is not significant, it will probably have little practical effect on the mediation. If the coverage issue is significant, it may become a focal point of the mediation.
Will coverage lawyers be involved in the mediation? The insurer may have its coverage counsel present at the mediation, taking the position that there is no coverage. This can in effect turn the mediation into a three-party mediation, and certainly complicates the potential for resolution.
It is thus important for the mediator to know if the insurer will bring its coverage counsel to the mediation, and, if so, whether the insured will have its own coverage counsel present. Most insureds, whether they are businesses or individuals, do not have a sophisticated understanding of coverage issues. It will usually be preferable, therefore, for the insured to have its own coverage counsel present to counterbalance the expertise of the insurer’s coverage counsel.
Is defense counsel “independent counsel”? The mediator should also determine whether the insured’s defense counsel is “independent counsel,” meaning a lawyer not simply appointed by the insurer. In some jurisdictions, when an insurer reserves rights, the insured may be entitled to such independent counsel, to be provided at the insurer’s expense.
Although all defense counsel (whether appointed by the carrier or independent) are supposed to owe their professional obligations to the insured (and not the insurer), many courts and commentators have recognized the potential conflict inherent in the “tripartite relationship” between an insurer, the insured, and appointed defense counsel. Appointed defense counsel are typically on the carrier’s panel and get a substantial amount of business from repeated appointments by the carrier. Independent counsel do not have this financial tie. This may seem like a small point, but it is important to understand the motivations of all participants.
Assuming the mediator has established who the participants will be and their potential motivations, there are many issues that can arise during the mediation that revolve around the insurance issues. The remainder of this post will discuss some of them.
Authority to settle. Coverage issues may lead to issues regarding the carrier representative’s authority to settle. The mediator will want to explore this issue, preferably prior to the mediation. If the carrier representative will have no realistic authority to settle, then either (a) the insured will have to come out of pocket to fund the settlement (which may in turn raise issues regarding the carrier’s right to control settlement), or (b) the plaintiff will have to be willing to accept a nuisance settlement. Obviously, neither of the alternative scenarios raises an optimal opportunity to settle, so it is important to gain an understanding of the carrier’s level of authority (or apparent level) as quickly as possible.
Coverage issues may affect the amount the plaintiff is willing to accept. If the coverage position appears to have some substantive merit, and if the insured does not have independent resources to fund a settlement or pay a judgment, the plaintiff may be willing to accept a lesser settlement than would otherwise be the case. This can be a touchy issue, particularly for the claimant and the insured, and should be approached carefully by a mediator.
The insured needs to understand its risks if there are coverage issues. Some insureds refuse to realize that insurance policies do not cover every claim. If the carrier’s coverage obligations appear questionable, then the mediator may need to give that feedback to the insured. As noted above, it also helps if the insured has its own coverage counsel present. It may be that the insured will need to fund all or part of a settlement to make it happen.
The carrier’s risk of a wrong guess on coverage. Although some insureds may not understand legitimate coverage issues, my experience suggests it is at least equally likely that the carrier will be taking a questionable coverage position. Many coverage lawyers who represent carriers seem to take extremely aggressive and questionable coverage positions, and cling them just as aggressively even when the potential weakness of those positions is brought to their attention.
A mediator faced with such a position may want to remind the carrier representatives of some fundamental realities. First, an insurer, regardless of its reservation of rights, generally has an obligation to protect the interests of its insured. Second, the duty to defend is typically interpreted more broadly than the duty to indemnify. Thus, even if a carrier has a colorable coverage position, chances are that the carrier will be on the hook for defense costs, which can be significant. This fact may lead a carrier to compromise to avoid further defense costs. Third, any ambiguities in the policy will be construed against the carrier.
If a carrier is taking an extremely aggressive position, refusing to provide a defense, or threatening to pull a defense, it may help to remind the carrier that it had better guess right on all counts. In other words, if the carrier is refusing to do anything, its position had better be correct that there is no duty to the insured -- to defend or indemnify -- or it may be exposed to liability under the policy and sometimes outside of the policy.
The insurer’s potential exposure for excess liability. An insurer that unreasonably refuses an offer to settle within its policy limits risks being held liable for any subsequent judgment, even if the judgment exceeds its policy limits. This is another factor that can come into play during settlement negotiations. Claims handlers usually are averse to exposure for “extra contractual” liability, or exposure beyond policy limits. Thus, a settlement offer from the plaintiff within policy limits may put pressure on a carrier even if it has a coverage position. (See the discussion above about the carrier’s risk of making a wrong guess).
Will the settlement resolve the coverage issues? A carrier may try to resolve the underlying liability claim while seeking to retain the right to contest coverage with the insured. Obviously, this is not an optimal situation for the insured, because it will be trading litigation where the defense is being paid for by the insured for coverage litigation, in which the insured will have to pay its own counsel.
For a carrier with thoughtful claims handlers, a settlement that leaves coverage issues unresolved is probably not a good situation for the carrier, either. The carrier will still be looking at paying fees to litigate with its insured, instead of closing its file. A mediator should try to make every effort to resolve the entire dispute, including the coverage issues.
Conclusion. When there are coverage issues, mediation becomes much more difficult. In such circumstances, a mediator needs to understand the motivations of all of the parties, including the carrier. The mediator needs to understand the basis for the carrier’s coverage position, and to try to develop an understanding of whether it is strong or weak. Even when there are coverage issues involved, the parties will often all have substantial reasons to want to settle the dispute. Although a mediation involving coverage issues becomes more difficult, it is not impossible to reach a resolution.
Insurance is often an issue in mediation. In such instances, it is helpful to have an understanding of some of the dynamics that may arise because of the insurer’s participation in the case. As counsel, I have represented both insurers and policyholders (insureds) in litigation and in mediation (not at the same time, of course!). Presently, I represent only policyholders, but I have an appreciation of the issues that insurers face under various circumstances.
This series of blog posts will examine some of the ways insurers can become involved in litigation and mediation and some of the resulting dynamics. Of course, these are general observations and are not intended to constitute legal advice. An insurer’s legal obligations (indeed, any party’s legal obligations) can vary substantially from state to state. It is thus important for parties to get legal advice from counsel in the particular jurisdiction.
An insurer can be involved in a dispute or litigation (and hence possibly in subsequent mediation) in three basic ways:
1. Defending the insured with no coverage issues involved. In such cases, the insurer is providing a defense without a reservation of rights or raising coverage issues. In such cases, the insurer is obligated to pay any settlement or judgment up to the amount of policy limits. The insurer also typically has the right to control and make any settlement without the insured’s consent. 2. Defending the insured with coverage issues. In such cases, the insurer is providing a defense under a reservation of rights. This means that the insurer has raised coverage questions and may seek to disclaim or limit coverage. Sometimes, the lawyer defending the insured will be appointed by the insurer. Sometimes, the lawyer defending the insured will be “independent,” or selected by the insured, with the bills paid by the insurer.
3. Litigating a coverage case as a party. In such a case, the insurer is actively litigating against the insured regarding whether there is coverage. The insurer may have denied coverage and may be a defendant against a coverage action brought by the insured. Conversely, the insurer may have filed a declaratory judgment against the insured asking the court to declare whether it has any coverage obligations. Sometimes the policyholder will have filed the declaratory judgment action. In coverage litigation, the policyholder may also have brought a claim – either as a plaintiff or as a defendant asserting a counterclaim – for bad faith. The scope of insurance bad faith varies substantially from state to state. In some states, insurers are at substantial risk if they are found to have acted in bad faith. In other states, the risk is fairly minimal.
The remainder of this post will deal with the first situation, when the insurer is defending the insured without reservation. The next two posts will deal with the latter two situations. When a carrier is defending without reservation, the carrier controls the defense. In most situations, the carrier will be making the decision about what to offer and how much to pay. Here are a few potentially important keys to settlement in such cases:
I recently had another lawyer tell me that it was impossible to have a mediation within 30 days. Heck, I was hoping to have the mediation within two weeks.
Of course, the schedules of the parties and the mediator may make scheduling a mediation within a short time frame impossible.
Scheduling concerns, however, were not all this lawyer was concerned about. He wanted to prepare a mediation statement that sounded like a brief to be filed in a United States Court of Appeals. The preparation process he envisioned sounded like the all-consuming process of preparing for a trial (something that only lawyers who have done it really understand).
This approach strikes me as a bit contrary to the fundamental nature of mediation, which is supposed to be a relatively fast and efficient means of resolving disputes. Mediation, if successful, is supposed to save clients time and money.
I am not suggesting that lawyers should avoid preparing for mediation. Far from it. However, I am suggesting that lawyers should be efficient in how they prepare. If the parties have been in litigation for a while, they should already have the basic information needed to discuss settlement. In fact, it is a fairly rare case in which the basic information and issues are not known quite early in the process.
If the parties do not have the information necessary, they should consider using the mediation process first to establish a process for exchanging that information. Although I have seen this work and have written about it before, it never ceases to amaze me how how so many lawyers seem to view mediation as a "one shot" meeting at which the case either settles or does not. Sometimes, effective mediation needs to be a process.
Turning back to the basic subject, mediation is not a trial. It is also not an appellate argument. The mediator will need the parties to lay out the basic facts succinctly, probably in a written mediation statement. If there are fundamental legal issues, the mediation statement may need to address them. Frankly, in most cases (those where there does not need to be a further exchange of information) information), the lawyers should already have done most of the background work necessary to prepare the mediation statement. The mediation statement is meant to be informative; it does not need to be a magnum opus or a work of art.
Much has been written recently about how lawyers have turned U.S. arbitration proceedings into mirror images of bench trials in the litigation system, replete with full fledged discovery, motions to compel, and the obligatory motion for summary judgment (whether warranted or not). This, critics argue, has at least undermined the "faster and cheaper" part of the "faster, cheaper, better" mantra of arbitration proponents. At least based on anecdotal comments, some companies are reconsidering using arbitration in their dispute resolution provisions for just such concerns.
It would be a shame if lawyers are causing similar considerations to creep into mediation. In the "old days," the trial was the main event in civil litigation. Today, mediation is often effectively the main event, as few parties want to bear the expense and risk of going to trial. That does not mean that going to mediation ought to be approached as going to trial. The parties need to get the necessary information to the mediator as efficiently as possible and then proceed.
It is also worth noting that clients, particularly sophisticated clients, can usually tell when a lawyer is trying to resolve a case efficiently and when a lawyer is going through unnecessary motions, perhaps (charitably) out of a quest for perfection or because "that is just how it has always been done," or perhaps (not so charitably) out of a desire to bill hours before a case settles. Regardless, this is rarely a basis for a long-term relationship.
My advice is simple: Don't turn mediation into a trial or appellate argument. Prepare well, and have the information necessary to address the issues and negotiate. But please remember mediation is supposed to be an efficient means of reaching a settlement.
John L. Watkins is a business litigation and business attorney and a registered mediator from Atlanta, Georgia. He will be blogging here from time to time regarding mediation and dispute resolution.