Making Your Mediator Work Harder for You

By Denise Johnson | November 17, 2014

Hiring the right mediator can make or break a settlement. That’s according to Lee Jay Berman, a full time mediator with a national practice based in Los Angeles, Calif.

Berman’s first tip is to choose a mediator carefully.

“I think it really breaks down into choosing carefully and picking the right mediator for the right case and how to do that well,” he said.

Not all mediators are created equal; as a result, Berman recommended adjusters pick up the phone and call a prospective mediator.

“When it comes time to pick a mediator, so often, somebody picks one because well, there was another claims professional in the office who had a good experience with that mediator, but we don’t necessarily know why that was or what that mediator did that was especially well suited for that case or to the personality of that claims adjuster,” Berman said. “What we do is hire them blindly and bite the bullet and write a check for a couple of thousand [dollars] or something like that, not really knowing anything about them.”

Adjusters shouldn’t be afraid to interview the mediator.

“The mediation process relies on ex parte communication. What that means is claims professionals and their counsel, together or separately, can get on the phone with a mediator at any point in the conversation,” he said. “Not only is that allowed and legal, it’s actually encouraged in the mediation process.”

His second tip is to make the mediator work.

Adjusters need to remember that the case is new to the mediator and he or she needs to be made aware of any factors the adjusters deems important to the case. He recommended adjusters conduct a pre-mediation conference call with the mediator to explain the case and ask questions. Some questions to ask the mediator include

  1. What do you think of the case?
  2. What do you need to see in the brief?
  3. What facts should be emphasized?

Berman, who has successfully mediated over 1,900 cases, said a pre-mediation conference call allows the adjuster to get immediate feedback on the case to assist in shaping a mediation strategy. He also suggested getting to the mediation early in order to build rapport with the mediator prior to the other party arriving.

Another important tip Berman shared is to look at mediators as a strategic partner rather than as the opposition. In addition, he recommended adjusters make the mediator respond to their offers first and to explain how an offer will be presented to the other side.

“I think it’s good practice to make the mediator explain the offer completely. Literally say to them, when you go in the other room, ‘How are you going to explain this to them? Tell me how are you going to present this to them,’” Berman said.

The rehearsal will allow adjusters to remind the mediator of salient points he or she may have left out prior to presenting the offer for real to the other side.

He also suggested adjusters ask the mediator for details on what is happening with the other party.

“The more information you have, the better decisions you can make and the better you can manage your risk. Then have them give you choices,” he said.

Berman’s final tip is to have the mediator work until the case is settled.

“I think, sometimes, we can let mediators off the hook a little bit before they’ve finished everything that they need to and should be doing to make sure that the case gets settled,” said Berman.

He explained there are many closing techniques mediators can use. If the case just can’t be settled during mediation, he said it is vital for the adjuster to enlist the mediator in the days and weeks after to continue working toward the end goal.

“Too many mediators get lazy and treat the mediation like it’s an appointment and when it’s over, they’re done. Frankly, between us, they’re not,” Berman said. “They’re not done until the case is settled.”

More from Lee Jay Berman:

How Adjusters Can Successfully Mediate Claims

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