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How to Mediate with Large Corporations

When you’re dealing with bureaucrats in mediation — the people who keep a corporate or public entity humming along on all cylinders — the parties are likely to reach impasse merely because the corporation’s representative doesn’t feel she has sufficient documentation to support the approval of a large payout. So as mediator, you could ask:

What information does your file need to justify this payment?

Claims representatives who work with insurance companies have told me that they need something in the file to justify a change in their original evaluation of the claim. The organization has a lot riding on that number.

Claims managers or a committee of managers set reserves — an amount of money sufficient to pay all claims. They don’t want to change that number for many reasons, not the least of which is not wanting to admit they were wrong.

On the other hand, no insurance company representative wants to be caught with his pants down. If a verdict far in excess of the reserve is rendered, it’s a bad day for managers and claims representatives alike. They need a good reason to bump up that number, and you need to supply it.

The same is true of the plaintiff. If the plaintiff’s counsel has long been telling her that she should expect between $50,000 and $200,000 with a 70 percent chance of success, you must find and give the plaintiff information pertinent to the value of the claim or the likelihood of success that the plaintiff hasn’t already considered.

A wise mediator who is in-house counsel to an insurance carrier advises she always remembers what her dad told her as a child. All a cat wants to know is two things: Is it good for the cat or is it bad for the cat? You need to present sufficient proof that what you’re proposing is good for the cat, whether that cat’s the plaintiff or defendant.

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