Insurance carriers have altered their practices in the past several years. Previous authority and independent judgment has been removed from adjusters, managers and supervisors as executives in the companies strive for uniformity in claims handling and ironclad control over settlement decisions. Rarely is there a person present at mediation able to be flexible and exercise individual judgment beyond parameters established in advance.

As a result, it is more important than ever that plaintiff attorneys create the circumstances that will produce optimum results. Those whom insurance carriers employ to establish reserves on claims as required by law and who set settlement parameters must be motivated to set them in a range that will settle the case.

The best plaintiff lawyers understand this. The changes in claims practices have not prevented plaintiff attorneys from settling their clients’ cases for reasonable amounts.

Carriers pay hundreds of thousands, even millions of dollars in settlements at mediations based upon their perception of risk.

The most successful plaintiff attorneys:

Prepare the other side for the mediation.

The most important task is to make sure the claim representative’s file is documented. Actual, reliable,  tangible evidence supporting the client’s past and future injuries, liability and damages must be in the hands of the representative in plenty of time before evaluations so that nothing is left to conjecture. The basic rule for carriers is that if it is not documented it does not exist or is not true. Claims examination takes place with a critical eye. It is a cumbersome process to change evaluations once made. The mediation session is too late.

Communicate directly with the assigned insurance adjuster. Rather than relying upon defense counsel painting an accurate picture of plaintiff ’s case as you would, it is wise to do so directly with the adjuster.

With changes in the dynamics between the claims department and defense attorneys, direct communication with the adjuster is usually acceptable, if not encouraged. This also minimizes the chance the carrier will have inadequate settlement authority.

Do thorough discovery. Unless to save expense if a good settlement can be reached early or you are concerned that doing so could hurt your client’s case, time and money should be spent to do discovery in a careful, expert fashion. It is another means to demonstrate that you are and will be on top of your case, and depositions need to be well thought out so the transcript makes critical points obvious to the carrier representative.

Maintain a professional demeanor in all communications with insurance company representatives and defense counsel. Outward aggressiveness rarely is productive. Insurance representatives neither cower in fear nor pay more in  response to rude and uncivil behavior. Those who are unsophisticated use crude methods to intimidate. Those who are really effective reveal the power in their cases by their work product, not by blustering. Treating someone badly, even your foe, is counterproductive when you want something from them.

Maintain a close relationship with their client and keep careful track of their medical condition and treatment. Many attorneys fail to follow what their client is doing with respect to treatment and other important matters. It is only when it’s too late that the attorney discovers, for example, that their client has been treated by a chiropractor for too long or is wrapped up with some odd holistic guru and running up specials that are not recoverable. Clients can also fail to seek the help they need because they don’t know enough. By failing to stay in close contact, counsel may learn too late that specialized intervention should have occurred.

Demonstrate they are prepared to go to trial. In this era of micro-managed, uniform claims processing, attorneys can have a tendency to rely on the ability to settle without doing much preparation or spending the money and time needed to develop and document their case. Clear signals that you are prepared for trial if no settlement is reached help generate favorable settlement offers.

Avoid trickery. If you are primarily a plaintiff personal injury lawyer you will develop a reputation with insurance carrier representatives, defense attorneys, mediators and judges. You do not want to be known as tricky, underhanded or dishonest. It makes those on the other side not trust even that which is legitimate when it comes from you. It causes those representing carriers to discount you and your client’s claims. The attorneys who consistently do well are those with the best reputations for ethical conduct and honesty.

Prepare their client for mediation. The client needs have a realistic view of settlement ranges and value. It becomes problematic when a client has nestled into a belief their home will be paid off or they can retire with their recovery when this sort of settlement value is not there. Also, prepare the client to look and act in a manner that will cause the opposing side to respect them. This is overlooked too many times by lawyers who suffer the consequences when the adjuster and defense attorney focus during the mediation on how a jury will dislike their client.

Prepare themselves for mediation. Prepare as if there will be a trial, not as comprehensively but in terms of organization. Organize the documents and items to be used at mediation. Highlight statements in records and reports that are of particular importance. Have the medical billing itemized with the Howell reductions determined. It does no good to try to hide this bill. Do a timeline including the history of treatment and other relevant events. Where future costs or losses are claimed, have these documented as effectively as possible both as to amount and the manner in which these will be demonstrated at trial.

Prepare to negotiate and work with the mediator intelligently. Negotiation approaches differ widely from mediation to mediation. The most experienced mediators use the style most appropriate to the circumstances and parties. They have to be flexible and comfortable whether the negotiation will be highly competitive and the atmosphere tense, or the circumstances call for a more cooperative approach. A plaintiff attorney should be prepared for either style.

David C. Peterson is a full-time mediator on the Central Coast. He chairs the Santa Barbara County Alternative Dispute Resolution Section and co-chairs the San Luis Obispo County section. He can be reached at or (805) 441-5884.

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