Does your mediator know the difference between “gross” and “net” exposure? If not, read this before your next coverage dispute.
Mediating a coverage dispute is not the same as mediating a casualty loss or a commercial dispute. Coverage mediations bring a different set of expectations — and they require a different approach.
In coverage disputes, the parties are often highly entrenched. They understand the law, the risks, and the potential rewards of their position — at least from their own client’s perspective. They expect the mediator to be just as knowledgeable: familiar not only with the cases cited in argument but also with the cases that may have been overlooked.
The scale of the dispute also significantly shapes the process. Mediating a $1 million case is very different from mediating a $10 million (or larger) exposure. A capable mediator must grasp whether the dispute is based on “gross” or “net” exposure and understand who the true parties at interest are, and (of course assisted by the parties’ pre-mediation briefs”) whether there are either overlapping areas, or where the risk analysis requires adjustment by one or both parties in order to resolve the case. Many of the cases cited in the briefs will be new to the mediator, and the parties must decide how much preparation they want the mediator to undertake and, even if they want the mediator to educate themselves on the case law. Both parties will likely advise the mediator what they consider the presiding judge will decide, however the mediator should have an understanding of the areas which a judge and separately if applicable, what a jury will need to consider.
While mediators are not expected to “decide” who is right, they are expected to understand the nuances of the issues, the appellate structures (especially since many coverage disputes escalate if unresolved), and — ideally — the inclinations of the judge assigned to the case.
For arbitrations, the dynamic shifts again. Some parties seek arbitrators who will stick closely to precedent; others prefer a decision-maker who is open to arguments about fairness or the equities of the situation. Knowing what you need in an arbitrator is just as critical as in a mediator.
In short: do your homework.
Research your mediator or arbitrator carefully. Make sure they fit the specific needs of your dispute. This avoids the all-too-common frustration of a mediation devolving into little more than a shuttle service for offers.
About Henning:
Henning Mediation & Arbitration Service is a family-owned and operated dispute resolution group that has served Atlanta and the state of Georgia for the past 25+ years. A third-generation organization, clients count on Henning for a smooth, inviting and reliable mediation process that fosters successful resolutions.
Nigel Wright
With over 30 years of experience in the insurance and reinsurance sectors, Nigel Wright has consistently demonstrated his leadership, strategic insight, and deep expertise across multiple roles in the industry. Throughout his career, Nigel has held senior leadership positions at two prominent international insurance carriers, where he was frequently the ultimate decision-maker, overseeing complex, high-exposure claims. In addition, he has served as a senior partner at two AM100 law firms, managing significant multi-jurisdictional and international litigation and arbitration matters, with a particular focus on coverage disputes. Nigel's vast experience spans a wide array of claims, including specialty, non-marine, and multi-national exposures. His comprehensive understanding of the industry is further underscored by his qualifications as a New York and Georgia attorney, UK solicitor, mediator, arbitrator, and AHLA Arbitrator. Renowned for his impartiality, unwavering work ethic, and meticulous approach to claims resolution, Nigel is a sought-after consultant and expert in both litigation and alternative dispute resolution processes.
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