An Introduction guidance of the European Union Law 2020_EU Seminar 4.pptx
Iua presentation oct 2014 (peter rogan)
1. Mediating Insurance Claims: Common Myths
and Misunderstandings
IUA Market Briefing,
10 October, 2014, The Grange Hotel, London
Charles Gordon, JAMS InternationalCharles Gordon, JAMS International
Peter Rogan, JAMS InternationalPeter Rogan, JAMS International
JohnJohn PyallPyall, Munich Re, Munich Re
2. Agenda
Mediation: The BasicsMediation: The Basics
When is Mediation Appropriate?When is Mediation Appropriate?
The Mediation ProcessThe Mediation Process
Preparing and Participating in MediationPreparing and Participating in Mediation
The Respective Roles of Counsel and the MediatorThe Respective Roles of Counsel and the Mediator
As Mediator, What Are My Objectives?As Mediator, What Are My Objectives?
How Can These Objectives Be Attained?How Can These Objectives Be Attained?
How Success Can be Achieved if the Case DoesHow Success Can be Achieved if the Case Does
Not Settle at the Mediation SessionNot Settle at the Mediation Session
3. Mediation: The Basics
What is Mediation?What is Mediation?
• A process of assisted negotiation in which a
neutral person helps people reach agreement
Forms of MediationForms of Mediation
• Voluntary Involuntary
• Evaluative Facilitative
Role of the MediatorRole of the Mediator
1. Design a mediation process
2. Implement that process
3. Mold the process to forge agreement
4. When is Mediation Appropriate?
At Any TimeAt Any Time
Early MediationEarly Mediation
• Benefits
• Disadvantages
Later MediationLater Mediation
• Benefits
• Disadvantages
No MediationNo Mediation
• Benefits
• Disadvantages
5. Why is Mediation Appropriate
To enable access to creative modes ofTo enable access to creative modes of
resolutionresolution
To enable ongoing commercial relationsTo enable ongoing commercial relations
between the partiesbetween the parties
To avoid or reduce litigation costTo avoid or reduce litigation cost
To avoid the imposition of a bad resultTo avoid the imposition of a bad result
To interpose someone to “blame” for acceptingTo interpose someone to “blame” for accepting
compromisecompromise
6. The Mediation Process
Determined by the CaseDetermined by the Case
Joint SessionJoint Session
Breakout SessionsBreakout Sessions
• Merits Review
• Demand and Offer
• Negotiation
Mediator InputMediator Input
• Case Assessment
• Resolution Proposal
7. Preparing and Participating in
Mediation
Two Vantage PointsTwo Vantage Points
As CounselAs Counsel
• Decades in Private Practice
• Lawyers with Substantial Mediation Experience
As MediatorAs Mediator
• Now with JAMS and JAMS International
(jamsadr.com and jamsinternational.com)
• Specialists in Commercial Cases with Insurance
Dimension
8. As Counsel, What Did I Desire
From a Mediator?
Detailed PreparationDetailed Preparation
An Understanding of the Case Subject MatterAn Understanding of the Case Subject Matter
The Ability to Gather Information from theThe Ability to Gather Information from the
AdversaryAdversary
CreativityCreativity
An Objective Case AssessmentAn Objective Case Assessment
Effective Communication with the ClientEffective Communication with the Client
The Ability to Close the DealThe Ability to Close the Deal
9. As Mediator, What Do I Look
for From the Parties?
A Clear, Concise Statement of PositionA Clear, Concise Statement of Position
• Hyperbole and Aggression are not helpful
A Setting of ExpectationsA Setting of Expectations
• What is the posture of the dispute?
• What led the parties to mediation?
What the Parties Aim to Achieve from theWhat the Parties Aim to Achieve from the
Mediation SessionMediation Session
• An independent view?
• A foundation for resolution?
10. Questions I Had as Counsel
What Would Be Most Helpful to the Mediator?What Would Be Most Helpful to the Mediator?
Do I Argue My Case as I Would in Court?Do I Argue My Case as I Would in Court?
How Best Do I Send Signals?How Best Do I Send Signals?
Do I Script My Negotiation Moves in Advance?Do I Script My Negotiation Moves in Advance?
Does it Help to Walk Out if it Looks LikeDoes it Help to Walk Out if it Looks Like
Progress is Doubtful?Progress is Doubtful?
11. Answering the Questions As
Mediator
What is Most Helpful to the Mediator?What is Most Helpful to the Mediator?
• A Candid Position Appraisal Supported by
Documentary and Testimonial Evidence
Do I Argue My Case as I Would in Court?Do I Argue My Case as I Would in Court?
• Yes, until the Mediator seeks to engage in a
more objective dialogue
How Best Do I Send Signals?How Best Do I Send Signals?
• Firmly and directly
12. Answering the Questions
Do I Script My Negotiation Moves in Advance?Do I Script My Negotiation Moves in Advance?
• Yes. This displays fortitude and foresight.
Does it Help to Walk Out if it Looks LikeDoes it Help to Walk Out if it Looks Like
Progress is Doubtful?Progress is Doubtful?
• Rarely. This forecloses the ability to obtain all
potentially available information from the
mediation process.
13. As Mediator, What Are My
Objectives?
Ideally, to resolve the disputeIdeally, to resolve the dispute
To provide an independent view of the relativeTo provide an independent view of the relative
strengths and weaknesses of each partystrengths and weaknesses of each party
To assist the parties in exploring the possibilityTo assist the parties in exploring the possibility
of creative solutionsof creative solutions
To assist the parties in translating the relativeTo assist the parties in translating the relative
position strengths into dollars and centsposition strengths into dollars and cents
14. How Can These Objectives
Be Attained?
Be fairBe fair
Be realisticBe realistic
Inject humor when appropriateInject humor when appropriate
Listen carefully to what is being said andListen carefully to what is being said and
impliedimplied
Gain the trust of the partiesGain the trust of the parties
Enable client representatives to understand theEnable client representatives to understand the
importance of controlling risk and mitigatingimportance of controlling risk and mitigating
potential adverse litigation outcomespotential adverse litigation outcomes
15. How to Achieve Success if the
Case Does Not Settle at the
Mediation Session
The Mediation Process Does Not End at theThe Mediation Process Does Not End at the
Conclusion of the Mediation SessionConclusion of the Mediation Session
• Subsequent Follow-Up by the Mediator
• Concepts Sometimes Need Time to Sink In
• “From Frustration Comes Opportunity”
Mediator Can Even be Accessed During TrialMediator Can Even be Accessed During Trial
Mediator Can Even be Accessed During AppealMediator Can Even be Accessed During Appeal
Settlement Enables Control over the Result; aSettlement Enables Control over the Result; a
Trial Verdict Does NotTrial Verdict Does Not