2^ND ANNUAL TAPM CONFERENCE

GETTING PAST IMPASSE IN THE

MEDIATION OF INSURED CLAIMS

By Regina Newson

TAPM second annual conference was a great success.  Many of the participants came from other careers such as counseling, social work, human resources consultants, and labor unions.  TAPM is reaching a wider audience than just the legal community.  Many of these people are practicing mediators.  They too have a place in the field of mediation.

Andy Little gave a summary of the changing landscape of mediation in North Carolina.  This summary could be used for Tennessee as well.  As we continue along this continuum for mediation in Tennessee we too are having more cases referred for mediation and laws being passed through the Legislature which require mediation as a means of settlement.  We have not gone as far as North Carolina, but in the future this too will change. 

In his book Making Money Talk, Mr. Little talks about the three basic models of mediation – problem-solving model, achieving understanding model and traditional bargaining.   It is important that we learn these models because the goal of the mediator is to facilitate the parties’ negotiations.  What we learn as mediators from the mediation is a better understanding of the negotiation process and how to assist the parties when their negotiations become difficult. 

When parties feel that they are not in control they quickly reach an impasse. As mediators we help each side facilitate a case analysis; make sure that each party is being heard, not just the attorneys, but their clients and help determine what the needs of the parties are; control the flow of information; facilitate movement for decision making, by encouraging risk analysis and case evaluation by helping parties formulate the range of settlement and encouraging movement from the other side. Sometimes it is the mediator’s job to force all the parties to look the B.A.T.N.A. (Best Alternative to A Negotiated Agreement).  It is a very simple question, “What will I do, what will I get, if I don’t settle this case?”  We help the parties regain their sense of control. Communication is the only way to get past the impasse.  You do this by taking the focus off the parties and put it on what is the bottom line for settlement.

The Messy Business of Finalizing the Agreement

Ann Barker conducted the afternoon session for family mediators using the principals learned in the morning session.  Family mediators should use the attorneys to help in the process.  They can help formulate the BATNA for their clients.  They can help them drive home the merits of their cases.  “This is what the judge has done in previous cases when I have been before him.”  They can remind them (clients) of how the judge received them when they were last in Court.  Every mediator should see the clients as a team (disputants, lawyers, therapists, pastors, financial advisors and etc), focus the communications within the team.  The purpose of the caucus is to find out what has been withheld that is blocking settlement.  This is true in family and civil cases.  Determine what causes the block and refocus the clients and what needs to happen to settle the case.  Use questions – reframe and summarize, use general questions in joint sessions, specific questions in caucuses.  Questions should come from what was said in the joint session.  Ask for help from the lawyers.  The advantage of having the lawyers present is that they can see their clients in action.  They may be able to talk with their clients and facilitate movement in the case.  Take the offer and divide it into sections.  Things that can be agreed on, take first.  Those that will require more discussion take last.  Be encouraging to both sides. Show them the movement.  Talk about what they have agreed on.  Ask the clients what they need to settle the case i.e. an admission of wrong doing.  Again go back and ask more questions, do more summaries, keep the communication going until they begin to see the settlement. 

Ms. Barker covered the Rule 31 Standards of Professional Ethics.  This generated a lot of questions and general discussion of the ethics from both the attorneys and the non-attorney mediators.   

What are the benefits of mediation?

It is a voluntary process.  Parties are free to leave at any time.

It is a confidential process.  The only public record is an order which states that the parties have settled the case.

It is usually less expensive and time consuming than a trial in court.  Most mediations range from four hours to a day.  In family cases, there may be several sessions over several days or with periods of time inbetween. 

The parties retain control of the outcome.

The parties are more satisfied with the outcome.  If the parties are able to settle, the outcome is final with no appeals, and immediate.  If the parties do not settle on the day of the mediation, the issues are narrowed and likely the case will settle before trial.

If the settlement involves money, parties are more likely to comply with an agreement, they helped forge.