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Phoning it in: Not the way to mediate

(Flickr / Alan Cleaver / “waiting” / CC BY 2.0)

Adjusters are standing by… (Flickr / Alan Cleaver / “waiting” / CC BY 2.0)

For some time, I have thought about sending a welcome-to-the-litigation letter to opposing counsel when they enter an appearance in a case. The letter would set out my views on the rules of the road in Maryland litigation on such topics as proper deposition objections, which do not including speeches by counsel or verbal cues to clients to clam up. I have not drafted the opening letter yet because I fear it would not go over so well with some of the more unwaveringly strident members of the bar. So, I’ll do the next best thing, which is to publish some of my rules for litigation in The Daily Record.

A simple rule that is too often breached is: “One must not mediate a dispute without all decision makers in attendance in person.” This is a close cousin of the rule I learned when I was in business-to-business sales before law school – “To close the deal, you need to reach the decision makers.” (For more lessons, see Selling to VITO). In order to set the stage for what will now be known as Vocci’s Rule No. 7 on Maryland Litigation, I penned the following brilliant dramatic scene.

The Unsettling Settlement Conference – An extremely short excerpt from an extremely short screenplay.

[We open in a room without windows in a courthouse in Any County, Maryland.  A settlement conference is underway in a civil case.]

[Defense Counsel] Well, my insurance adjuster is available by telephone, if need be, as I wrote to the Court three days ago. It doesn’t matter though because, frankly, I don’t see much value in this matter at all.

[Plaintiffs’ Counsel] My clients are here and are prepared to make a good faith attempt to resolve this matter.  In our statement to the Court, we wrote that we had made a demand upon the defendant.  We have not received a response.

[Defense Counsel] The demand was way too high given the physical damages sustained.  We might be able to pay nuisance value for this case. I don’t have authority for anything more.

[Plaintiffs’ Counsel] My clients are not going to bid against themselves…

[A short time later, Plaintiffs’ Counsel is seen explaining to his clients that he appreciated them taking time from work and that he was sorry more progress could not made. Brows furrowed across the board.]

Of course, there are exceptions to every rule but the general proposition is sound. The person controlling the money needs to be in the room. And yes, I know that plaintiffs sometimes fail to attend settlement conferences or have unrealistic expectations but the issue highlighted is the de rigueur requests by insurer-provided defense counsel to excuse adjusters from in-person attendance at mandatory settlement conferences.

Given the emphasis on negotiated resolution of civil matters, insurance adjusters with full authority should be required to attend mediations and settlement conferences along with all of the parties to the litigation.  In fact, this in-person attendance of settlement conferences in mandated in the usual course in several jurisdictions in Maryland. A recent Scheduling Order from the Circuit Court for Baltimore City mandates that, “[t]he attorneys who will actually try the case, their clients, insurance representatives, and persons with full settlement authority must attend the pretrial conference in person. Failure to attend without prior approval from the court can result in sanctions.”

Having parties and insurance representatives attend the mediation allows everyone with a financial stake in the matter to make informed decisions regarding resolution. An insurance representative going about her business in [Mid-Western Town] while being “available by phone” is not the same.

If the goal of mandatory settlement sessions is to encourage the parties to reach accord on the financial terms, it is counterproductive to have the party responsible for payment  missing from the negotiation table. By solely speaking with defense counsel on the telephone, the adjuster will not be able properly to evaluate the plaintiffs as potential witnesses at trial, the preparedness of counsel and will not receive any direct feedback from the settlement judge or mediator.

Until we come up with a better strategy to resolve cases or to get more cases in front of juries in an efficient manner, I’ll be a stickler for having all stakeholders attend settlement conferences in person. So, to insurers’ representatives, I say come on out to Maryland.  Make sure to bring your business acumen, common sense and your settlement authority.