Insurance has a pervasive presence in our court system. An insurance policy is a source of settlement funds for a wide variety of cases, from personal injury to employment to professional liability to pollution to cyber. If you need access to those funds to obtain a settlement in your case, you will need to negotiate with an insurance claims professional. When negotiating with a claims professional, it helps to “speak their language.” Here are seven tips for ensuring a successful mediation when insurance is involved:

1.      Use the pre-mediation process. The pre-mediation call can be an effective way to get the insurer fully engaged before the mediation begins. Ask for the claims professional to be on the call when the mediation is being shaped in order to get an early view of what they may need to know to get ready. The call is an opportunity to find out if the claims professional intends to be present in person or be available by phone, or if they will just send a lawyer with authority. If it is a significant case, it never hurts to ask the claims professional to attend, even if their presence cannot be compelled. Not every case warrants travel and time away from a busy desk (they most likely have other files to handle), but for significant cases, this is a reasonable request.   

2.      Share submissions. Make sure there are shared written submissions to the mediator and the submissions are exchanged well in advance of the mediation. Having shared submissions allows for a vigorous exchange of views before the mediation, and it will set the stage for a more in-depth dialogue when the parties get together. Even more importantly, if the submissions include new or revised information or arguments, the insurance professional will have time to incorporate this information into their request for authority on the case. 

3.      Learn whom you are dealing with. The insurance industry is huge, and there are all sorts of people in it. At the beginning of your mediation, have the mediator find out who your insurance professional is. What kinds of claims do they ordinarily handle? How long have they been with the company? Do they manage other people? How often do they mediate? Understanding whom you are dealing with is crucial with respect to insurance claims professionals. If the mediator doesn’t procure this information, talk to the person yourself.

4.      Prepare. Persuading an insurance company to pay is different from persuading a jury or judge to make an award. Insurance company claims departments are really litigation decision factories. All they do every day is figure out how and when and for what amount to settle cases. Prepare your case for them. Know the strengths and weaknesses. Compare your case to other cases with that company or other similar cases in that venue, but be prepared to have an argument about whether your examples are valid. 

5.      Engage in a professional way. If your goal is to find out what the claims professional is willing to pay to settle the case, it is usually a bad idea to adopt a confrontational stance. Instead, make sure the claims professional is heard. What issues are they focused on in the case? What do they need to know? How can you provide them with a file that adequately supports the type of payment you hope to receive? In too many mediations, the lawyers and parties don’t speak to the insurance representative. This is a mistake. Bring them into the process early and have the kind of discussion that a confidential mediation allows for. If you encounter resistance about the merits of the case, dig into the details. Don’t just get frustrated and shut down. If you have points to make, make them calmly. Whether or not the case settles, you will have established a good relationship with the carrier, making future mediations run more smoothly.

6.      Don’t ask about authority. Every claim department has delegated levels of standing authority (also called “desk authority”) that are documented. These levels of authority are deemed critical controls by regulators and reinsurers. Companies could not function without them. Standing authority may not correspond to the amount that the person in the room is authorized to settle your case for. The representative may have more or less, depending on how the case was evaluated before mediation. The important point for adversaries and mediators is that claims professionals are usually looking for a discussion on the merits that leads to a decision about how much of their authority to utilize to settle. They are trained negotiators. Telling you their number at the outset is a poor negotiating tactic, and the better negotiators will be offended that you asked.

7.      Don’t neglect the follow-up. Many insurance professionals view mediation as one step in a resolution process that may have multiple steps. They often do not view the mediation as a must-settle moment. And they often go to mediations to test their views and learn more about the case. If the case does not settle at mediation, make sure the mediator follows up. Did they learn something? Do they need more information? Has their view changed? Many cases that don’t settle at session often settle after a relatively brief period of follow-up.