Expert Shares Top Tips for Mediation Preparation

Preparation is key to a successful mediation, according to Kevin Quinley, founder and principal of Quinley Risk Associates.

During a recent interview he shared his tips on how to best prepare for mediation.
Quinley explained why adjusters are often wary of mediation.

“Adjusters suspect that the purpose of mediation often boils down to terrorizing them to pay more. Most mediators’ and judges’ stances towards adjusters at mediation is like Cuba Gooding’s character in “Jerry Maguire” show me the money,” said Quinley. “The starting premise of many, if not virtually all, mediations is it’s not whether the adjuster is going to pay. The only question is how much. That’s not a starting point that adjusters or many policyholders relish.”

Another reason why adjusters are often ware of mediation is that “they expect mediators and judges to twist their arms and to extract and to disgorge more money, that the judge will posture about how the defenses are weak, tell the adjuster how the jury’s going to hammer the defendant.”

Another issue is the logistics of attending mediation, Quinley said.

“In many mediations adjusters can attend by phone, but usually adjusters are located hours away, far from the mediation’s geographic location. Many times judges require that the adjuster be physically present for a mediation or settlement conference,” he said. “So many adjusters have war stories about dutifully traveling to mediation and finding it to be a huge waste of time. Maybe the parties were too far apart, maybe the other parties were no shows. The adjuster ends up burning work days for a file where the investment turned out to be a time suck.”

He said the adjuster then gets backlogged with work.

Quinley provided six tips for adjusters preparing for mediation:

  1. Do your homework. Have the reports and key pieces of evidence available for the mediator. Have a firm command of the liability picture, the law, injury and causation.
  2. Plan and train for mediation as you would for an important exam if you were back in school. Prepare for key themes or talking points to make to the mediator and the opposition.
  3. Prepare yourself physically. Enter mediation rested and feeling well. You want to be physically and mentally sharp. Proper preparedness for mediation includes not only mental but some physical prep as well.
  4. Play devil’s advocate in advance. Prepare for anticipated arguments and talking points that the claimant will likely advance. Brainstorm or roundtable with other adjusters. Probe for weaknesses in your case and then formulate answers to parry these arguments.
  5. Give mediation adequate time. Be patient and optimistic. Expect a long process because with this expectation you’ll be less likely to throw in the towel or agree to unfavorable terms because of fatigue or impatience.
  6. Play to the final whistle. Stay the day. Often, cases settle in the closing minutes of mediation.

Quinley also offered three common mediation mistakes for adjusters to avoid.

  1. Calling the opposing party by the wrong name. It can undermine attempts to resolve the case.
  2. Lack of empathy. Adjusters have to have not only an IQ but an EQ, an emotional intelligence quotient. Don’t hesitate to express condolences or sympathy where appropriate. That doesn’t mean you have to concede liability.
  3. Bluster. That is, telling plaintiffs in the opening statement of mediation that the case isn’t worth anything or worth much but that you’re there, nevertheless, “in good faith.”

According to the claims expert, it’s not always about the money.

“The personal touch can often be valuable in resolving disputes,” Quinley said.
An adjuster that shows empathy and compassion toward the other party can help drive the case towards settlement.

“The moral is there’s a time to be a gladiator and to go to trial, but more often we’re going to need to be savvy negotiators, not gladiators. Increasingly, the forum for this is mediation,” said Quinley. “Whether you work for an insurance company, a TPA, a risk management department in their claims unit, you can boost your effectiveness at mediation and add another dimension to your value added professional service.”

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