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Personal Injury Mediation: Never Waive Physical Attendance of Any Insurance Representative!

May 2, 2018

Survivalists know that every warm body increases the entire group’s combined temperature for the mutual benefit of all.   The same can be said in mediation.  See, “Successful Mediation Requires All Participants Attend.”, March 21, 2011.

But some mediation attendance is even more valuable than others.

In personal injury claims, by contract, every liability insurer of any defendant effectively becomes an indispensable party to every effort of resolution.  So indispensable, that simply failing to formally include an insurer in all of your negotiations, timely, can  legally jeopardize the availability of their contractually available coverage.

And, in Florida, although defendant’s insurance entities are not permitted to be named as an actual party to civil litigation (historically to prevent juries from knowing that any party HAD insurance), ironically, they are a REQUIRED ‘PARTY’ to every court-ordered mediation of that same litigation!  Clearly, the Florida Courts’ rule makers realized that the insurance companies physical presence at mediation must be mandatory to have every reasonable opportunity of resolution.

Yet, too frequently, some claimant’s representatives are still “permitting” these critical professional insurance representatives to avoid their required physical attendance at all-important mediations.  (Despite clear, written legal requirements of court-ordered mediation, State courts are still prone to permit even procedural “stipulations’ by parties that often avoid many mandated requirements.)

The most common claimant-conciliation to their required physical attendance is to permit an insurer’s representative to “attend” mediation by phone! (Some even permit this critical representative-mediation party to “be on call” to their defendant-insured-party’s attending attorney, who “may call if necessary”!)

Please, just stop it!  You are killing your resolution opportunity before you even begin!

I have warned about this insurer-non-attendance issue before.  See, “Mediation:  Use Extreme Caution When Waiving Any Participant’s Personal Attendance”, June 8, 2012

But, the practice, even years later, unfortunately, still continues.  And the subject is too important, not to try again; this time, however, pointedly and with suggested, reasonable alternatives to consider.

Claimants may believe they gain some “favor” with this critical decision-maker insurer by permitting their non-attendance.  However, in reality, by this ill-advised gesture, most of the time they are only losing their very best chance of a fair mediation effort by the defense before they even begin.  At best, the insurers sole pre-mediation position already held will then become the only final position proffered

Isn’t the primary purpose of mediation to persuade decision-makers present to a position not already held?

Would anyone elect the telephone for any IMPORTANT judicial argument?  Would anyone feel comfortable giving ANY closing argument by telephone?

It is the same concern for any ‘PHONE’ mediation.

Consider the “new” mediation playing field:   The insurance company, the only “party’ with actual authority to resolve your claim, did/does not have enough interest in resolution of the dispute to personally attend this critical effort of resolution.  They cannot now see the claimant’s attorney’s presentation, observe the client or the mediator.  They cannot even see their own insured or even the attorney they are paying to represent their client!

And, do you really think a busy claims representative will closely listen to your presentation and ONLY work upon your claim while sitting on a phone back at their busy office?  (Why do you think most mediations are scheduled in neutral locations?)

Thus, the only persons now seeing and, likely really hearing, you or your claims-client, are either the party-defendant (who has no authority to resolve the matter) or the defendant’s attorney (who, technically, does not even represent the insurance company!).

You (and your Mediator) now, literally, have no one physically at your important mediation with the actual authority to alter/persuade the insurance company’s singular pre-mediation position.

(Or,  even to be one of the required signatories to any possible Mediation Settlement Agreement, without which you have no enforceable agreement!)

Over the years, I have heard all of the reasons to waive personal appearance of an insurance representative at mediation and some have had (apparent) reasonable merit.  And a very few even resolved.

But, in retrospect, even those could and should have been avoided.

There are better alternatives.

A few suggestions:

First, offer the ‘file representative’ who would/should normally attend, your mediation the very easy and reasonable option of sending a replacement.

Most insurers are already national, have offices everywhere and should quite easily be able to find another qualified company employee, somewhere, including one possibly residing locally or at least much closer than at the claims home-office.  Many such companies already have full-time employees whose only job is to attend mediations.

Another replacement option, if a company does not have such in-house substitutes easily available, is to suggest they retain an independent agency/adjuster to represent them.   There are numerous insurers (and Third Party Administrators) who routinely already retain such “independent” representatives for all of their mediation appearance requirements, nationwide.

Rarely will any attending representative ‘really’ have the full authority that is required (another topic for another day).  No company could ever afford to send such a ranking person to every mediation, nationwide.  Thus, in the majority of such matters what is most important is that warm body, actually attending, seeing and participating and who will be listened to gain a better authority, if a call becomes necessary; regardless of their title.

The reason?  Because, sadly, if persuasion of the phone-person to a better position at mediation is to have any chance, it will be only because of the combined role of the “messages” of the mediator, the defense attorney and the ‘replacement/substitute.

And guess which one, repeatedly, has the greatest weight?

Answer:  NOT the defense attorney (sadly) and not the mediator.  It will almost always be the input of that person, chosen by the phone-attendee and paid by them for their input that, combined with the others, can obtain that critical last effort of resolution.

A second alternative?  Offer to take the mediation to the representative!

Likely, this alternative can be reserved for cases that can afford the cost.

Then again, maybe it can be considered more than you might first think.  If only the claimant’s attorney need travel to the claims-representative’s, location, it might be a more useful and efficient option than you think.

Mediators and defense counsel can increasingly be found everywhere and no claimant necessarily need attend.  (If the representative doesn’t need to see the claimant in proposing attending mediation by phone, why should the claimant NEED to travel to be seen at all?)

And, as a third alternative, consider simply offering to  reschedule solely to accommodate the insurance representative!

Such an offer should certainly flatter the exact person who really is necessary for resolution.  And, rescheduling would not likely have to be offered more than once.

Regardless of these three alternatives chosen to be offered, any alternative will give the claimant a far better opportunity of mediation resolution, all other circumstances remaining the same, than any “phone attendance”.

Accordingly,  after extending one or all of these reasonable alternatives, please, please, never again waive the physical attendance of at least SOME insurance representative at any personal injury mediation.

Your client (and your mediator) will thank you.

Dan, from Winter Park, Florida




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