Mediation and Expert Witness
The proposition is simple: provide mediation services focused on insurance coverage based upon years of experience and a deep understanding of the issues.
The commitment is straightforward: to be thoroughly prepared and provide the parties with the type of mediation that will help them find a resolution to the claims.
Don is uniquely qualified to serve as a mediator in insurance coverage matters:
- Has handled over 75 litigated insurance coverage claims
- Has represented both policyholders and insurance companies
- Has handled coverage matters ranging from complex commercial to homeowner claims
- Participated in mediations as both a client when serving as general counsel and as counsel
- Has actually drafted insurance policies
- Has qualified and testified as an expert witness on insurance claims handling procedures impacting coverage decisions
Mediation training and experience: Northwestern University Mediation Skills Course certificate, numerous seminars on alternative dispute resolution sponsored by the ABA, the Cook County Courts and the National Arbitration Forum. Real world experience includes numerous mediations as attorney advocate and also as a decision-making client in role as outside general counsel of the insurance industry pool. Having represented both insurance companies and policyholders provides the basis for understanding not only the legal issues but the practical considerations that must be factored into a successful mediation.
Expert witness: Testified as an expert witness behalf of on a large insurance company on the adequacy of a claim investigation for purposes of denying coverage. The insurance company sought an expert who had not only represented both insurance companies and policyholders but who also had direct experience in insurance claims management. Don had the unique combination of experience. The insurance company prevailed at trial before a Cook County jury. Don was also retained by counsel for a Fortune 200 company as a non-testifying expert consultant on the interrelationship of general liability coverage and environmental liability coverage.
General Mediation Process Employed
The following provides a general outline of the parties can expect as a mediation process
v Mediation briefs will be expected. Parties will be asked to agree on a maximum length. Briefs will be simultaneously shared between the parties and with the mediator.
v Briefs will be due seven days before the mediation in two and three party mediations. Briefs will be due earlier in larger mediations.
v Copies of entire insurance policies will be provided by the insurance company with its brief. To the extent relevant, applications, claim or underwriting files will be made exhibits to the briefs.
v If deposition testimony is referenced in briefs, the party relying on the testimony excerpts will have the entire deposition transcript available at the mediation.
v The mediator will call each attorney prior to the mediation to assure understanding of the issues and to discuss any confidential matters not covered in the briefs.
At the Mediation
v A person with actual authority to resolve the matter will be expected to attend in person.
v There will be an initial joint session where each party will briefly explain its position. Lawyers will be expected to make the presentations but clients may, if they wish, make brief statements. Time limits may be set by the mediator. If any demonstrative exhibits are to be used in the presentation, they must be exchanged along with the briefs.
v The initial breakout session will be with the claimant. The order thereafter will depend on the number of parties and the nature of the case.
v The mediator may meet with lawyers outside the presence of the clients.
v The mediator will, usually well into the mediation session, provide evaluations of general or specific issues if the party agrees to an evaluation and the mediator feels it is an appropriate and useful time to offer an evaluation.
Ending a Mediation without Complete Resolution
v While the goal is achieving a complete resolution, the mediation will be terminated when the process has gone as far as it can without reaching resolution
v The parties will be asked to document at the mediation any partial agreements or specific issues on which agreement was achieved
v With respect to unresolved issues, the mediator will attempt to get the parties to agree on any necessary discovery and an efficient process for addressing the open issues
v The mediator will follow up with each within a week of the mediation to see if there has been any movement, new ideas or reevaluation of positions
v The mediator will maintain his file and be available for follow up mediation sessions or to participate in conference calls between the lawyers discussing resolution of the claim
Mediation will be provided at $250 per hour, including pre-mediation preparation. There will be a minimum charge for four hours in-person sessions. A non-refundable, minimum fee of $1,500 will be due with the submission of the briefs. The minimum fee will be credited against the total fee based on the hourly rate of $250. It is anticipated that the parties will split the fee pro-rata.