Settling Cases When Plaintiff Demands Exceed Policy Limits

CLM webinar explores strategies for resolution

March 22, 2024 Photo

The way to settle a case, according to Doug Glass, mediator, Signature Resolution, is to “Start smart, bring your dough, settle your case, and away you go!” When plaintiff’s demands exceed policy limits, however, strategies may be a bit more involved.

In CLM’s recent webinar, “How to Settle Your Case When Plaintiff Demands Exceed Policy Limits,” Glass and Sitar Bhatt, partner, Tyson & Mendes LLP, discussed strategies to employ when such instances occur.

“I tend to want to meet with both sides at least two times…before I start pushing numbers,” explained Glass. “Some mediators go to numbers right away, [but] I’m not one of those guys—I want to be able to give you some insight into what might be a process, or work better, whether it’s low, strong, whatever it is. Let the process play out.”

Choosing a Mediator

“Mediators do play a huge determining factor in the outcome of the mediation,” said Bhatt. “They’re the ones who are delivering the arguments that each side is making…you really want to make sure that you have a good mediator.”

The presenters identified a good mediator as someone who is trustworthy; smart and experienced; thoroughly reading briefs and knows the case cold; seeking to understand first, then seeking to be understood; a good listener; a guide for both sides; and is in it for the long run. “All of this factors into—I hope—the decision-making process of who’s the right mediator for this case, for these lawyers, for the parties,” said Glass.

Furthermore, the speakers stressed the importance of evaluating the experience and style of a mediator. “You need to do your homework,” said Glass. “When people come in and they see my style, and I’m not a, ‘Hey, what’s your number?’ type guy…I’ve been doing this so long. Just do your homework. Vet me. Call me. You can say, ‘Hey, Doug, how do you approach mediation style?’…we all have different types of styles.”

Assess the Claim

In first-party bad faith claims, the plaintiff is the person who was injured and the defendant is the insurance company. In third-party bad faith claims, explained Bhatt, one should confirm the law in their jurisdiction, identify the plaintiff (the person who was injured), and identify the defendant (the person who injured the plaintiff). “In third-party bad faith situations, you need to remind them, this may take a lot longer than you anticipate…you could be looking at a potential resolution years down the road versus…[getting money today]. Time is money…People just want money, and they need it now,” said Bhatt.

Demystifying Brackets

Pros of Bracketing

Plaintiff and defense create a range of numbers based on low (defense) and high (plaintiff) demand, according to the speakers. Glass said, “Brackets, to me, are kind of a last resort. My mediation style is to continue to converge numbers toward a deal point…[negotiations can] tighten the bracket, you’re trying to narrow the field, and I say brackets are not demands or offers; they’re just proposals. So, I use them carefully and sparingly, but almost more out of a desperation than anything.” However, it allows parties to experiment more because offers are contingent and it can be diagnostic for the mediator, like reading tea leaves, according to Glass.

Cons of Bracketing

Brackets can seem unreliable, noted Glass—for instance, if the number falls outside of the bracket. If this happens, “Trust that a good, experienced mediator knows when to implement a bracket. Listen to the person who is in all the rooms….” Glass also stated that one can recover when a bracket “fails.”

Share Everything You Have

“I do believe in…sharing everything that we have and presenting it in a proper manner that will allow the mediator to effectively convey our argument and our position and our offers,” said Bhatt. “Even when it gets to a bracket…if we share everything and we [say], ‘Hey, here’s why we’re looking at this bracket,’ it effectively allows the mediator to…communicate and gain trust in that other room that…maybe the bracket coming from the defense side is a little bit more reasonable and something that makes sense.”

Furthermore, the speakers advocated for helping the other side to make sense of your number and getting the mediator to go lower; using the Nuclear Verdicts Defense Methods at mediation: accepting responsibility, personalizing the corporate defendant, giving a number, and arguing pain and suffering.

If a mediation gets heated, take a breather, especially if it isn’t going the way you want. When it is time to close the deal, listen to the mediator, said the speakers. “I make a connection with the plaintiff. I’m your best shot,” said Glass. “I settle cases with plaintiffs, not plaintiffs’ attorneys. I’m not going to speak with that plaintiff after you leave my office…give me the best shot to sell your deal to the plaintiff, not the plaintiff attorney…it’s a collaborative effort…we’re all in this together.”

About The Authors
Angela Sabarese

Angela Sabarese, Associate Editor of CLM.

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