As Featured on Law360: Shepherding Insurers Through The Mediation Process

In a recent Law360 article, mediator Bruce Friedman discusses ‘Shepherding Insurers Through The Mediation Process’.

While insurance lawsuits involving claims directly between an insurance company and its policyholder make up a relatively small percentage of our courts dockets, cases triggering liability insurance from automobile accidents to securities class actions constitute a very large percentage of all cases before our courts. Settlement of these cases requires the proper shepherding of the insurer(s) defending/covering the case. The participation of the insurer(s) at the mediation is necessary to the ultimate resolution of the case. The challenge is making sure that the insurer(s) are prepared to participate in the mediation in a meaningful way.

Mediation of Insurance Coverage Cases

Resolving insurance coverage disputes through mediation requires exposing careful assessment of three unique elements: the insurance policy, the rules applicable to the application of the policy and the cases construing the policy. Evaluative mediation provides the best approach for resolving these disputes. It requires parties, counsel and the mediator to evaluate the strength and weaknesses…

The Biology of Decision-Making

It is a common understanding among trial lawyers that decisions are made emotionally and not rationally. We are always looking for the emotional hook on which to hang the case and sway a jury to see the case through that emotional prism. Now science is teaching us that decision-making is actually physical. In a recent…

The Antidote to the Spiteful Litigant

We have all encountered the spiteful litigant. Maybe it’s the husband in a divorce who says that he is going to Las Vegas and putting the marital estate on red or black at the roulette wheel. If he wins he will split it with his ex; if he loses, neither of them get anything. Or perhaps it’s a partner in a dispute that says that he would rather the business fail then have to share its value with his soon to be ex-partner; or a litigant that states that he would rather drive the defendant into bankruptcy even if it means that he would not recover for his injuries.

How does one deal with spite in the context of a mediation? Recent scientific studies of spite provide the answer. Spite is defined as the urge to punish, hurt or humiliate another, even when one gains no obvious benefit and may well pay the cost. New research summarized in a recent New York Times article concludes that spite is both a vice and a virtue that may be linked. Not surprisingly, in one survey conducted by David K. Marcus, a psychologist at Washington State University, spitefulness generally cohabited with traits like callousness, Machiavellianism and poor self-esteem.  Spite is not associated with agreeableness, conscientiousness or guilt.

Winning At Mediation

A famous trial lawyer welcomed his junior partner back from a hard fought trial.  The lawyer congratulated his mentee on her win at trial.  The junior partner responded that, “you must be mistaken, I lost at trial.  The jury returned a verdict against our client.”  The senior partner responded, “But wasn’t the verdict less than the plaintiff’s last settlement demand?”  “Yes,” replied the junior partner.  “Then you won!” said the senior partner, “It is all about how you define win!”

Consider the Moot Mediation

In the appropriate case, a moot mediation is the best way to prepare for a mediation and to obtain the most favorable result. Usually, one should only consider the use of a moot mediation in a large exposure case that justifies the expense of hiring an experienced mediator to conduct a ‘practice’ mediation. If you…

3 Styles of Mediation

As any experienced neutral knows, there are several different approaches to mediation: facilitative, evaluative and transformative. The key to being a successful mediator, as far as the parties are concerned? Adopting oneself to fit each mediation’s particular needs. Evaluative mediation is a process modeled on settlement conferences held by judges, where the goal is often to…