Former Federal Magistrate and IP ADR Blogger, John Leo Wagner and I presented Tactics of the Adept in Modern Mediation Practice today at the ABA ADR Convention in Seattle.
We had a lively discussion about the ways in which “at the table” tactics can be strategized in advance to assure that the right people are available for deployment at the optimal time to maximize the potential for the most effective and efficient settlement possible. We also covered end-game strategy; deal points; and bridging techniques.
You can get a taste of the discussions by downloading our power point presentation linked above.
Though there were a plethora of afternoon programs following our own, I was happy with my choice of the session conducted by Los Angeles complex commercial mediator Jeff Kichaven (JAMS).
Jeff led a great discussion among mediators and litigators alike concerning settlement conferences in which coverage is an issue.
The panel, entitled Hobbling through the Three-Legged World of Insurance Mediation: How to Get More Third Party Liability Cases Settled was masterfully moderated by Kichaven, who drew from both panel and participants thoughtful questions and sophisticated answers.
Jeff was joined on the panel by Michael Wrenn, insurance recovery litigator in Heller Ehrman’s Seattle office, who provided the viewpoint of the insured whose carrier is defending, but denying liability for any settlement by or eventual judgment against the insured. Wrenn stressed the utility of pre-mediation conferences; the potential need for mediator assistance with client expectations; and, those rare but satisfying mediations where the mediator — based on his ability to “bond” with the client — sends both litigator and client away settled and satisfied.
Also joining Jeff was Cozen O’Connor coverage litigator Thomas M. Jones (Seattle). Jones stressed the need for neutrals to shoulder the burden of assessing and communicating the weak points of his own and his adversary’s legal and factual weaknesses in a persuasive and even-handed manner. Trust in the mediator’s neutrality in providing all sides with candid assessments of risk was stressed as perhaps the most important of a mediator’s usefulness to Mr. Jones and his carrier clients.
Finally, ACE-USA in house counsel Jonathan Roth added the client’s perspective. Mr. Roth was refreshingly candid and animated, stressing several times that his superiors “don’t like to be surprised” and encouraging mediators to be as candid as possible with “bad news” they might think the client representative does not wish to hear.