Mediation Guidelines
There will be a claims adjuster and / or senior adjuster present. Often the insurer’s counsel will also be there.
The claims adjuster knows your file by handling it over time.
The senior adjuster is the player who normally decides what the insurer will offer. The senior adjuster’s knowledge of your file tends to be recent.
The insurer’s counsel advises the insurer. He or she often plays the role of “challenger”.
The mediator is a referee. The mediator’s job is to “referee” the discussions, and to assist us towards settlement if possible.
The mediator is not a judge. The mediator cannot decide who is right or impose a decision on us (the case will only settle if we and the insurer agree to settle).
The mediator is not our pal, or on our side. The mediator is neutral, with his/her only goal being to urge us to settle (and is not particularly involved in whether it is an appropriate settlement).
The mediator may comment on the risks of trial.
The mediator will invite me to explain our position briefly, then the insurer will often respond. Next the insurer representative will usually ask you questions. Answer the questions clearly and directly.
The mediator will likely choose to speak with the insurer representative (or with us) privately. This is normal, and should not be a cause for concern. This is called a “caucus”.
When we are in caucus with the mediator, we need to be clear with the mediator that what we say is “confidential” and should not be repeated to the other party without our agreement.
Nevertheless, you should recognize that the mediator will use what he or she learns in caucus to pursue their objective of settlement. This may indirectly affect the course or result of the mediation, and may obliquely be communicated to the other party. This is part of the dynamic of mediation. However, it means that you cannot speak “freely” in front of the mediator.
If there is an offer or proposal, it is best if we discuss it privately before responding even in caucus. Do not show emotion when there is an offer. Expect that any first offer will be “low”.
There will be much discussion of the risks to each party in going to trial.
Mediation is a “privileged” occasion; and what is said there will not be used in cross-examination in the future. But you need to be aware that the insurer is taking your “measure” as a witness, and assessing your credibility. The insurer will also make decisions, based upon what is learned, about future handling of your claim.
You need to present yourself as a reliable, courteous witness. This applies to dress as well as to what you say and do.
The insurer representatives may say things that you disagree with, that you do not like, or that you find insulting. Allow them to say their piece. Do not get angry or sarcastic. Stay calm and polite if the insurer representatives play “good cop / bad cop”.
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