R-E-S-P-E-C-T- Miles Mediation
By Burke Johnson
What you want
Baby, I got it
What you need
You know I got it
All I’m askin’
Is for a little respect. . . .
Here now are a few pointers on the topic of respect in the context of personal injury mediation.
Plaintiff’s counsel: Respect the adjuster
Occasionally I find that plaintiffs’ lawyers do not respect the insurance claim professionals who attend mediations. Sometimes, the adjuster may be relatively new. More often, however, the adjuster is a seasoned professional; someone for whom this is not “the first rodeo,” as a senior adjuster I encountered early in my career would always say.
The claim representatives who attend mediations are educated. They have been through training programs with the insurance companies that employ them. They have received many hours of ongoing continuing education and training. Plaintiffs’ attorneys need to understand and respect the level of knowledge these adjusters bring to the table.
Adjusters also handle incredibly heavy caseloads. They do their best to be knowledgeable about the case when they arrive at mediation. However, if they do not seem to have a firm grasp on the details of the case, plaintiff’s counsel should respectfully point out where they have misapprehended the facts.
Plaintiff’s lawyers also should know that rarely, if ever, does the claim representative at mediation “shoot from the hip” with regard to case evaluation and negotiation. As I have written before, settlement authority in cases is established well before the mediation. Typically, and depending on the size of the claim, claims are reviewed at several levels before settlement authority is established. Plaintiffs’ lawyers should respect the amount of work and analysis that goes into evaluating a claim, even if they do not agree with the value assigned to the case.
Defense Counsel: Respect the plaintiff
While some cases truly may be frivolous, most are not. In the majority of personal injury cases I mediate, a person truly has been hurt. Even if the defense team does not believe the defendant is liable; that the defendant’s actions caused the injury; or that the injury is a serious as the plaintiff contends, the defense team must show respect for the plaintiff. For that person, the injury they sustained is very real.
For many plaintiffs, the feeling of lack of respect begins soon after the incident that gives rise to the claim. To the insurance company, the claim investigation is just business. To the plaintiff, it is very personal. They do not understand why so much inquiry needs to be made or why the initial investigation takes so long.
If the claim does not settle without hiring a lawyer and then filing suit, plaintiffs often think the insurance company is just trying to wear them down. They do not understand the discovery process. They see no reason for the defense lawyer to dig into their background and obtain high-school records and records from a doctor they saw for a sore throat ten years before. They do not understand the months of discovery and delays in getting their cases to court.
Having conducted hundreds of mediations as either a lawyer or mediator, I have witnessed many times a defense lawyer or insurance claim representative sitting in the opening session of a mediation looking through files, checking phones, and appearing generally disinterested during the presentation of the plaintiff’s case. This shows a lack of respect for the plaintiff and for plaintiff’s counsel. As I always say in my opening remarks, there is a big difference between just hearing what someone is saying and in actually listening to that person. During the plaintiff’s opening statement, the defense lawyer and claim representative should put away the phones, put away the files, and actively listen to what the plaintiff has to say. This conveys sincere respect for the plaintiff.
Finally, many cases I mediate involve plaintiffs who are, for lack of a better term, underprivileged. They may be poor; uneducated; an immigrant; or some other individual that society sometimes sleights. They believe that if nowhere else, if they go to court, they will gain some respect. Because mediation is now the “New Day In Court,” plaintiffs need to feel the same degree of respect during the mediation that they believe they would get in the courtroom.
To Learn More about Team Nutter Mediator Burke Johnson or to book him for your next mediation, please visit his booking page on our website under Team Nutter.