How Not to Handle Mediation: A Cautionary Tale.

By Lane Finch

When the court orders you to mediate, send your attorney, without any settlement authority, and do not send a company representative. That will have the preliminary effect of irritating opposing counsel and the mediator.

Make sure you pick the right case. Chose one in which you do not contest liability and do not have any meaningful evidence to refute the medical bills, which are a multiple of your policy limits.

The mediation will, of course, crater. Then you can take the next step and insist on a jury trial. But again, only do this in the case where you do not contest liability and where you do not have any significant evidence to rebut the damages claim. Heck, go ahead and stipulate to everything. Then, roll the dice and see what the jury does.

Now, if you are unlucky, and the jury awards the plaintiff nine- or 10-times policy limits, you may question the strategy I just laid out. The court will certainly question that strategy, so hold onto your hat.

There is precedent in Alabama for the court to decide you did not mediate in good faith and that you caused the other parties and the court a lot of unnecessary work. The court may admonish you that the very first rule of the Rules of Civil Procedure states “These rules shall be construed and administered to secure the just, speedy and inexpensive determination of every action.” At least that’s what the rule says in Alabama. The court may also point out that if the medical specials are over $200,000, and there is no liability defense, “there is no other information needed” to pay policy limits of $75,000.

And, ultimately, when the jury awards $690,000, the court may issue sanctions against the insurer of $620,141.36. Event number seems precise, that is because it is the exact number court awarded to the plaintiffs and their counsel as sanctions in Harbin v. Allstate, Circuit Court of Madison County, Alabama, Civil Action Number CV 2017-901 688.

Now, this is just a cautionary tale. Things may not work out so badly for you. Perhaps you can keep the sanction under $100,000. Let me know.