1. 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. (
Robert A. Stern, Esq., Clausen Miller PC )
&
Charles Platto, Esq.

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

3. Preparation “YOU MEAN NO ONE REMEMBERED TO BRING A ROCK.” Preparation:
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. 3

4. Deciding When & Whether to Mediate

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

7. Getting Authority

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

9. Case Assessment In subrogation context Coverage Third-Party
Reinsurance

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

11. 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

12. DEVELOPING THOUGHTS FOR RESOLUTION
Aspiration Level
Reasonable Outcome
Walk Away

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

14. Pre-Mediation Statements
Contents
Shared
Private
Hybrid

15. 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?

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

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

18. USE OF JOINT SESSION

19. Use of Caucus

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

21. Coverage Issues in Third Party Cases

22. Multi-Party Issues & Challenges

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

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