Perseverance, Timing Key to Mediation of Accident Claims, Lawyers Say
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NEW ORLEANS — While great trials may provide drama and public fascination, mediation of accident claims — a process that avoids that drama — is daily life for trucking companies and other transportation providers. Those involved with the system said mediation takes special skills and techniques.
Lawyers and insurance specialists speaking here at an American Bar Association conference March 8 said that timing, perseverance and perception are perhaps the most important qualities to possess when trying to reach a mutually agreeable settlement with a plaintiff.
Peter Carello, claims supervisor for the transportation division of RLI Insurance Co., described his approach as “not about settling a claim. It’s about settling a claim at an appropriate level.” Toward that end, Carello said he has learned never to skip the opening session of the process.
Moderator James Foster, a Chicago attorney, said that after preparation is completed, the actual time before a mediator might be one business day or less. While the limited nature of the forum demands high productivity, Carello said it should not occur at the expense of the opening session.
“That lets you learn about the mediator and the plaintiff. We learn about the plaintiff’s counsel, as well. “If I sense he’s working toward a trial, I play close attention,” Carello said, adding that the opening session allows him to scout out the talents of his own attorney, the quality of the plaintiff’s case and the personality of opposition witnesses. Playing out the opening session, he said, “is the difference between understanding something intellectually and knowing it in your bones.”
The lengthy scouting session, he said, can help him decide whether to spend more money to reach a settlement at that point, or hang tough and risk a trial. The opening round also can help answer the main point for David Spruance, risk manager for garbage hauler Republic Services.
Spruance said it is imperative to figure out who will make the final decision on a settlement. “I like to get everybody on the plaintiff’s side and observe their interaction,” he said. “Who’s driving the bus?” is a key question.
Although the plaintiff ultimately must sign off for a settlement to be final, Spruance said, otherpeople can have profound influence on him or her, such as a spouse, a child, a parent or an attorney. A plaintiff can be strong and independent, or he or she might do as told by the power behind the throne. “I want to know who I need to talk to,” Spruance said.
For George Lindh, vice president of claims for Carolina Casualty Insurance Co., matters of timing are most important. He said he likes having the mediation session after both parties have been through the pretrial discovery process.
“I don’t like surprises,” he said, endorsing the post-discovery sessions, because both parties are more knowledgeable then. He did carve out two exceptions, though: when the defense has a weak case or when the plaintiff is making a small claim. For those times, he endorsed prediscovery settlement.
Lindh also said it is important for the insurance company not to delegate all responsibility to its lawyers and that budgeting for the mediation process itself — not the settlement — should be generous. “It’s our company’s money at stake, so I’ll be there,” he said.
As for expenses, he advised, “Don’t be penny-wise and pound-foolish. [Famed investor] Warren Buffett said no insurance company ever failed because of its expense ratio; they failed because of their loss ratio.”
To control settlement payout, he recommended keeping a staff of adjusters who are skilled at mediation.
This story appears in the March 26 print edition of Transport Topics. Click here to subscribe today.
