The beauty of mediation is that it brings decision makers together in the same space and time, to resolve disputes. The success of the process rests on the fundamental assumption that each party comes to the table with the authority to settle. Unfortunately, in some cases involving insurance companies, key decision makers sometimes are absent, creating challenges for counsel, participants and the mediator.
The Absent Adjuster Problem
Certain insurance carriers view their participation in mediation as an elective process where they can simply make an adjuster available by telephone and avoid the time and expense of traveling to a mediation session. Putting aside the threshold question whether telephonic participation satisfies court rules for alternative dispute resolution, the message this communicates is dismissive: the missing adjuster appears too important to attend and the interests of the injured claimant, who does attend, are less important. This is not the best way to start a negotiation.
The telephone can also become the curtain that insulates a decision maker from personal engagement in the negotiation process. We all remember the scene from The Wizard of Oz where Toto pulls back the curtain and we discover that the commanding voice of authority is just a little man at the controls, who then is forced to actually talk in person to Dorothy.
Telephonic participation curtains off the adjuster, preventing the type of personal interaction with the mediator, opposing counsel and the injured claimant that often helps resolve cases. Experience shows that it is much easier to say "no" when the communication is remote rather than face-to-face.
Certain insurance carriers refuse to send an adjuster to a mediation -- citing expense and time constraints -- but, if a case goes to trial, will require that same adjuster to sit in the back of the courtroom for the entire proceeding. This also sends an unfortunate message about priorities.
Strategies for Defense Counsel
A defense attorney faced with an upcoming mediation and the prospect of a missing adjuster needs to work proactively to keep this from torpedoing the mediation process:
Determine if the absence of the adjuster is necessary and for a good reason.
Consider rescheduling the mediation to accommodate the adjuster's schedule and travel plans.
If the adjuster absolutely cannot attend, get consent well in advance from opposing counsel and, if necessary under applicable rules, from the court.
Use technology to bridge the gap, with video participation if possible.
Be sure to include the adjuster in the full joint session, especially any presentation by counsel for the plaintiff.
Arrange in advance for redundant methods of reaching the adjuster throughout the mediation process, including personal cell phone, text and e-mail. Calls to the adjuster during the negotiations should not be going into voicemail.
Make clear to the adjuster that disappearing for lunch or meetings during the mediation is not an option.
Apologize in the joint session and explain the reasons for lack of personal attendance to the opposite party. It is one thing to state peremptorily that "my adjuster will be available by phone." It is quite another to explain that the adjuster on this claim wanted to attend in person but is recovering from surgery and did not want to delay the mediation until his or her return to work.
Strategies for Plaintiff's Counsel
Plaintiff's counsel, faced with a request for telephonic participation by an adjuster, also has work to do:
Consider whether to accept or reject the request for remote participation.
Decide whether it is better to have remote participation by an adjuster who knows the case than a "stand in" independent adjuster who is simply a warm body with no authority.
Consider the pros and cons of asking the court to require personal attendance.
Educate your client before the mediation about remote participation so there is no surprise at the mediation.
Insist on video participation with the adjuster through the entire joint session.
If your presentation at the joint session includes any exhibits or visual components, figure out in advance how these can be shared electronically with the missing adjuster.
Confirm with defense counsel that they have made the necessary arrangements to reach the adjuster continuously through the entire mediation process.
Get Behind the Curtain
In the experience of most mediators, personal attendance of decision makers increases the likelihood of resolution. When that does not seem possible, however, even small dogs can find ways around imposing curtains.