Co-Mediation Where Complex Insurance Issues Are Involved

When you have a complex, multi-disciplinary problem, should you hire one expert in one aspect of the problem and then hope that person can manage all the other aspects? Probably not.  Yet, lawyers and their clients usually entrust 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 tort and multi-district litigation cases 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 a deep insurance background can focus on the insurance companies and those making claims (policyholders, additional insureds, judgment creditors, plaintiffs) 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 coverage 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. 

While co-mediation will be more expensive, the increase in cost relative to the exposure in the case will be well worth it. Co-mediation can transform how the case is handled and bring closure to complex matters.