Skills for Preparation & Effective Representation in Insurance Mediations Produced for LawLine ADR Day – Bridge the Gap June 26, 2016 By: Simeon H. Baum, Esq. Resolve Mediation Services, Inc. (www.mediators.com) Robert A. Stern, Esq., Clausen Miller PC (rstern@clausen.com; www.clausen.com ) & Charles Platto, Esq. (cplatto@plattolaw.com)

Diverse Field 1st Party 3d Party Subrogation Reinsurance Sandy Mediations 3d Party Subrogation Reinsurance

Preparation “You mean no one remembered to bring a rock?” What do you do to prepare for a mediation? Develop factual information Develop legal analysis Coordinate with counsel Combine risk analysis with transaction cost analysis to get BATNA. Coordinate internally within Company hierarchy to have appropriate authority. Set 3 possible deal numbers in advance: (1) rationally supported best outcome; (2) reasonable outcome, (3) outcome that is of equal value to going forward with the case (BATNA) – BUT stay open to reevaluate – either way – in mediation. Identify and try to resolve coverage issues in advance of mediation. If not resolvable alone, consider using mediator to do coverage mediation. Have (and help) counsel prepare persuasive information, developed in persuasive form, to be able to share with other parties. See more on Presentation, Slide #____ (Experts, PowerPoint, Blowups, Props, Day in the life). Be sure counsel prepares the Mediator with good pre-mediation statement and supporting exhibits/information. Subro professional review and coordinate pre-mediation statement with counsel, if it does not cause undue delay. “You mean no one remembered to bring a rock?” 3

Deciding When & Whether to Mediate

Picking the Mediator Thoughts for mediator selection In coverage cases Sandy-related cases Third-Party claims Reinsurance cases

“I don’t have to be a team player, Crawford. I’m the team owner.” Getting Authority “I don’t have to be a team player, Crawford. I’m the team owner.”

Choosing Participants Deciding on participants Internal discussions Joint pre-mediation conference call

Case Assessment In subrogation context Coverage Third-Party Reinsurance

Methods of Determining Settlement Value One Method Gross Damages x Issues/Problems – Future Costs/Expenses = Settlement Value

Methods of Determining Settlement Value – Cont’d Another Method: Total Paid Damages – Past/Future Costs/Expenses = Gross Subrogation Value Gross Subrogation Value – Comparative Negligence – Chance of Prevailing = Settlement Value

DEVELOPING THOUGHTS FOR RESOLUTION Aspiration Level Reasonable Outcome Walk Away “My people will get back to your people.”

Be sure to make good use of pre-mediation conference calls! Joint Private with mediator Who initiates?

Pre-Mediation Statements Contents Shared Private Hybrid

Other Issues to Consider When is Mediation taking place? Court Ordered or Agreed? Who is adversary and adversary’s representative? Witness presentation and availability. Who is attending Mediation? Any offers on the table?

Roles and Strategy for Mediation Who Attends? Who Talks? Who Decides? How tell Who is Running the Show?

Trading $$ How to make effective proposals? How to read proposals by other parties

USE OF JOINT SESSION

Use of Caucus

Look for Opportunities to Mix and Match Principal with principal Counsel with counsel Expert with expert In Multiparty scenarios, sub caucus groups

Coverage Issues in Third Party Cases

Multi-Party Issues & Challenges

Time to Walk? Commitment Level and Changing the Game What is it? Prepare Client for Walking When to Walk How to Walk

Post Mediation Problem Follow up Returning to the bargaining table A note from the mediator