In general the approach to mediation of an insurance coverage case is similar to other substantive areas of the law. The difference is in the analysis of the insurance policies, the cases, and the rules of interpretation. Without any question, insurance policies are the most difficult and least understood contracts in general use and they come with a body of law interpreting what they mean.
There are also special rules of interpretation adopted by the courts with respect to ambiguous provisions or terms within the policy. So in preparing to mediate a case, it is counsel’s job to educate the mediator as to the policy provisions involved in the case, how they have been interpreted, and the rules of interpretation that apply if there is an argument as to ambiguity. It is the mediator’s job to review the policy and the cases and to develop a list of questions to address to counsel and clients as to the outcome of the case should the policy be construed in a different matter or under some circumstances not apply at all.
It is not unusual for there to be a significant difference in the level of sophistication in the insurer caucus room than that of the policyholder. The insurer representative deals with these issues all the time and can be callous when confronted by the policyholder’s arguments. The policyholder, as opposed to his counsel, may have never confronted an insurance coverage issue before and does not have a clue as to how this situation has developed.
The mediator has a challenge in both rooms. In the policyholder room, the mediator needs to take the time to explain the issues to the client and to make sure that the client is comfortable and understands them. In the insurer room, the mediator has to overcome the attitude that the adjuster has heard it all before and does not want to take the time and patience to deal with the policyholder’s arguments and concerns. Ultimately, it is the mediator’s understanding and communication of the strengths and weaknesses of the parties positions that will assist in bringing the parties together.
Choosing an experienced mediator that has both superior mediation skills and knows insurance coverage increases the odds of a successful mediation.
Bruce A. Friedman is a skilled mediator with a national practice. With years of litigation experience behind him, he understands the goals of the mediation process and will do his best to ensure that the needs of both parties are met: justly and efficiently. For more information on the mediation services that Bruce provides, check out his website at http://www.FriedmanMediation.com or call him at (310) 201-0010.
