When you have a complex, multi-disciplinary problem, should you hire one expert in one aspect of the problem and then hope that that person can manage all the other aspects? Probably not. Yet lawyers and their clients are often quite comfortable entrusting a dispute that involves many technical and complex insurance challenges to a mediator who may have no particular expertise in dealing with those insurance issues. There is a better way: co-mediation.
When parties search for a mediator who is skilled in dealing with the liability and damages issues of their case, they may neglect another very important aspect. Complex cases frequently have significant and complex insurance issues that must be addressed in order to reach settlement. Class actions, mass torts and various sorts of multi-district litigation often require mediators with particular expertise. This expertise may be sufficient to engage the insurers, but given the large number of parties, it is also possible the mediator will not have time to address the insurance issues. Co-mediation can help. A mediator with an extensive insurance background can focus on the insurance companies and those making claims against the insurance companies to ensure the mediation moves forward on at least two fronts at once. Complex coverage issues like allocation and trigger can also be dealt with. Carriers who have reserved rights or disclaimed rights can have the conversation on the merits of their issues that they desire. Strengths and weaknesses of the coverage positions can be discussed with the same depth and intensity as would normally be done with liability and damages issues. This enhances the chances of settlement and keeps more parties engaged in the process.
Co-mediation is worth considering and can transform how the case is handled and bring harmony to complex matters.
Andrew S. Nadolna, Esq., is a JAMS neutral based in New York City. He was previously a senior claims executive at AIG for over 15 years and an insurance coverage attorney in private practice.
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