Edmund J. Sikorski, Jr., J.D.
Attorney, Civil Mediator, and FINRA Arbitrator
Aristotle on Mediation of Insured Claims
By Ed Sikorski
August 12, 2013
The more things change, the more they stay the same. French Proverb
Despite the fact that FRCP 1.720(b)was amended on January 1, 2012 (requiring full authority certification, etc.), a recent discussion conducted in the LinkedIn group “Florida Supreme Court Certified Mediators” consistently reported that the new rule has had little, if any, effect on the mediation process.
Perhaps this is because at the same time insurance carriers have altered their internal claims practice. Authority and independent judgment once possessed by claims representatives has been substantially diminished if not entirely removed as insurance companies seek uniformity in claims handling and absolute control over settlement parameters established well in advance of a mediation date. Thus the claims representatives do in fact appear at mediation with full authority to settle, but only within the parameters previously established by a process designed to bring uniformity to claims payouts by category. This is a process of quantifying payout of measured risk – this is also how insurance premiums are calculated. An insurance company that pays out more than it takes in meets an untimely demise.
Understanding the reality of the claims process is the first ingredient in creating a set of circumstances that will produce optimum case resolution.
Simply put, if the plaintiff does not furnish information to support the demand, it will be stuck with settlement parameters established by the carrier’s internal claims evaluation procedure and washed through their proprietary software programs.
The Central key reality is that insurance companies pay claims based on their perception of risk in relation to exposure.
In an adversarial system a claimant has the burden of going forward. It therefore follows that the plaintiff has the obligation to convince the opposition of the legitimacy and value of the case. Convincing the opposition is applying the art of persuasion to see the matter your way.
Setting aside issues of overconfidence and fundamental attribution error, the issue to be addressed is:
“What are the tools of persuasion available in settling insure claims?”
The answer leads straight back 2400 years to Aristotle’s three ways to persuade:
“Of the modes of persuasion furnished by the spoken word there are three kinds. The first depends on the personal character of the speaker; the second on putting the audience into a certain frame of mind; the third on the proof, or apparent proof, provided by the words of the speech itself.”
These elements will be discussed in inverse order because of the usual practice of first building a claim on the elements of a cause of action and then crafting the presentation to accomplish the ends intended.
Lawyers who conduct successful mediation of insured claims do the following:
1. Prepare the claims representative for the mediation.
This step is persuasion on the proof – appeal to reason by demonstration and logic.
Document in detail the adjuster’s file. Provide accurate, tangible, verifiable objective criteria to support liability and such damages are allowed by the Florida Standard Jury Instruction 501.2.
Claims reserves are set early by the insurance company. A plaintiff’s job is to persuade the insurance company to change their initial evaluation. If a claim is not well documents it will be perceived as nonexistent or a fabrication. If the mediation is to be successful, all documents, videos, deposition summaries, reports, etc. must be in the hands of the claims representative no less than two weeks before the scheduled mediation if not before. If this material is presented for the first time at the mediation, it will be ignored and the mediation will assuredly impasse.
This requires communication directly with the claims representative handling the case. It is that person who must be persuaded in the first instance. It is that person who together with a risk management team who will make a collective monetary decision based on the risk assessed. Defense counsel may be only tangentially involved in this process.
2. Maintain a professional demeanor in all communications with the insurance company and defense counsel.
This step is persuasion through appeal to the presenter’s credibility and authority.
If the claimant’s representative does not appear to be knowledgeable about the matter, or appears to conduct himself in a manner disrespectful, demeaning, or insulting to the claims representative or defense counsel, all of the reasoning of the case will be disregarded and impasse will assuredly follow.
Simply put, boisterous bombastic denunciations will always backfire. Treating people with disrespect, even when their stories verge on questionable is normally counterproductive. See Allstate v. Marotta, 2013 WL 2420451 Fla.4thDCA (June 5, 2013).
3. Appeal to the claims representative’s inherent emotions.
Claims representatives may be remote, trust their own cognitive process and bias blind spots, but they are not passive participants any more than jurors. They are active participants – critical players in a joint creation of what happened, what is fair, and what is moral.
This step is the appeal to the inherent human emotions of the claims representatives. It is no doubt the most subtle but needs the same attention that would be put into a plaintiff’s Opening Statement.
This step provides the motivation to open or close the carrier’s checkbook.
This step requires development of a mediation presentation that has a theme, employs metaphor, and tells a compelling story that persuades a review of the listener’s natural biases and exposes their blind spots.
It is well documented (Haidt 2012 The Righteous Mind) that motivations tend to group along five general themes:
1. Care or Harm
2. Fairness or Cheating
3. Loyalty or Betrayal
4. Authority or Subversion
5. Sanctity or Degradation
Every legal case will contain one or more of these themes. If employed in the mediation presentation they will have the identical effect as in an Opening Statement to the jury – only this time, the claims representatives are the “Jury”.
Simply put, presentation of reason and evidence alone is not enough to persuade. Motivation to reach the desired result must be furnished: NO MOTIVATION, NO PERSUASION.
4. Always employ the best video aids available.
A picture is worth a thousand words (or more) because seeing is believing.
Aristotle only had oratory and perhaps a few drawings to install mental images in the minds of his audience. 2400 years later we not only have pictures, photographs, and dramatizations, but also animations to carry the motivational themes imbedded in presentations. Use of imagery in any form is an absolute necessity in all successful mediation presentations. Lack of it will most certainly yield marginal results.
5. Make it self-evident that you are ready for trial NOW.
Part of the claims evaluation process involves assessment of the perceived capabilities and trial effectiveness of opposing counsel. Since even the busiest litigators in major firms try at most 30 cases in their lifetimes, the number of cases tried is less significant if the mediation presentation demonstrates that you are prepared to go to trial on this case at this time. Risk assessment and therefore payout parameters are after all made on a case by case basis.
6. Practice, Practice, Practice.
No one would be a member of a team that did not practice before the competitive event. No one would act in a play without rehearsal.
Engage a Mediator to participate in practice mediation. That fresh look can open your eyes to some unexpected strengths or approaches your adversary could apply. It may very well expose natural bias blind spots.
Edmund J. Sikorski, Jr., J.D. is a Florida Supreme Court Certified Circuit Civil and Appellate Mediator.
www.treasurecoastmediation.com contains a link to view other authored articles on selected mediation topics including a description of the proprietary Focus Mediation Program and contact information.