Mediation has seen explosive growth over the last two decades in connection with insurance matters. First party disputes; third party claims; excess and reinsurance coverage matters; or subrogation cases – in all quarters, mediation is the dispute resolution process to which the involved parties turn.
In a program moderated by Simeon H. Baum, President of Resolve Mediation Services, Inc. (www.mediators.com), Chuck Platto, an experienced insurance attorney and mediator, and Robert Stern, a dean of the subrogation claimant’s bar, offer reliable advice on how best to represent parties in insurance mediation. With practical focus on insurance matters – you can consider tips and cautions on how best to prepare for mediation, develop necessary demands and reserves, engage in effective opening statements, make the best use of joint session and caucuses, engage in productive negotiations, bring home strengths of legal alternatives, prepare for and obtain helpful risk and transaction cost analysis from the mediator, guide your clients, get past impasse, and bring home a reasonable resolution of your matters.
I. Select an appropriate mediator and prepare the client for mediation
II. Understand the Employee’s and Employer’s BATNA
III. Identify legal and deal alternatives to a negotiated agreement
IV. Develop an Effective Mediation Plan, including:
A. A reasonable aspiration level, moderate and walkaway deals
B. Gather and Produce key information
C. Develop necessary demands or reserves
D. Develop effective pre-mediation statements
E. Conduct effective pre-mediation telephone conferences
F. Get the proper parties to the table
G. Effective opening statements in mediation
H. Appropriate use of joint sessions and caucuses
I. Make the best use of the mediator
J. Make the best use of clients and representatives during mediation
V. Handle client communications in the mediation process
VI. Communicate efficiently with adverse parties
VII. Effectively negotiate through mediation, including developing, delivering, and assessing deal proposals
This course originally appeared as a part of our June 2016 Bridge the Gap Event.
Simeon Baum, President of Resolve Mediation Services, Inc. (www.mediators.com), has successfully mediated over 1,000 disputes. He has been active since 1992 as a neutral in dispute resolution, assuming the roles of mediator, neutral evaluator and arbitrator in a variety of cases, including the highly publicized mediation of the Studio Daniel Libeskind-Silverstein Properties dispute over architectural fees relating to the redevelopment of the World Trade Center site, Trump’s $ 1 billion suit over the West Side Hudson River development, and Archie Comics’ shareholder/CEO dispute. He was selected for New York Magazine’s 2005 - 2014 “Best Lawyers” and “New York Super Lawyers” listings for ADR (http://www.superlawyers.com/new-york-metro/lawyer/Simeon-H-Baum/1de9e280-ba02-4bfb-8fe8-659bc286b8e4.html) and Best Lawyers’ “Lawyer of the Year” for ADR in New York for 2011 and 2014 (http://www.bestlawyers.com/Lawyers/Simeon_H_Baum)and for the International Who’s Who of Commercial Mediation Lawyers 2012-14.
An attorney, with 30 years’ experience as a litigator, Mr. Baum has served as a mediator or ADR neutral in a wide variety of matters involving claims concerning business disputes, financial services, securities industry disputes, reinsurance and insurance coverage, property damage and personal injury, malpractice, employment, ERISA benefits, accounting, civil rights, partnership, family business, real property, construction, surety bond defaults, unfair competition, fraud, bank fraud, bankruptcy, intellectual property,
Mr. Baum has a longstanding involvement in Alternative Dispute Resolution ("ADR"). He has served as a neutral for the United States District Courts for the Southern and Eastern Districts of New York Mediation Panels; New Jersey Superior Court, Civil Part, Statewide; Commercial Division, New York State Supreme Court, New York & Westchester Counties; U.S. Bankruptcy Court, Southern & Eastern Districts of New York; the New York Stock Exchange; National Association of Securities Dealers; the U.S. Postal Service, the U.S. Equal Employment Opportunity Commission, and CPR, and National Academy of Distinguished Neutrals (NADN), among others.
Mr. Baum’s peers have appointed him to many key posts: e.g., Member, ADR Advisory Group, Commercial Division, Supreme Court, New York County; ADR Advisory Group and Mediation Ethics Advisory Committee, N.Y. State Unified Court System. Founding Chair of the N.Y. State Bar Association’s Dispute Resolution Section, he was also subcommittee chair of the N.Y. State Bar Association’s ADR Committee; Legislative Tracking Subcommittee Chair of the ADR Committee of the Litigation Section of the American Bar Association; Charter Member, ABA Dispute Resolution Section Corporate Liaison Committee; President, Federal Bar Association’s SDNY Chapter, and Chair of the FBA’s national ADR Section. He is past Chair of the New York County Lawyers Association (NYCLA) Committee on Arbitration and ADR. Besides serving on the NYCLA’s Committee on Committees, he is past Chair of the Joint Committee on Fee Dispute and Conciliation (of NYCLA, ABC NY, and Bronx County Bar Associations), and is on the Board of Governors, NYS Attorney-Client Fee Dispute Resolution Program. He is also a Fellow of the American Bar Foundation. He is a Director for the New York NADN panel.
Mr. Baum has shared his enthusiasm for ADR through teaching, training, extensive writing and public speaking. He has taught ADR at NYU's School of Continuing and Professional Development, and he teaches Negotiation, and Processes of Dispute Resolution (focusing on Negotiation, Mediation and Arbitration) at the Benjamin N. Cardozo School of Law. He developed and conducts 3-day programs training mediators for the Commercial Division, Supreme Court, New York, Queens, and Westchester Counties. He has been a panelist, presenter and facilitator for numerous programs on mediation, arbitration, and ADR for Judges, attorneys, and other professionals. Mr. Baum is a graduate of Colgate University and the Fordham University School of Law.
Robert A. Stern is the Chair and Senior Partner of Clausen Miller’s East Coast Subrogation/Recovery Group, and is the main contact for many clients with subrogation losses outside the East Coast. Mr. Stern’s multi-practice experience provides him with a unique perspective on the successful and cost-effective manner of handling cases. He has tried, arbitrated, mediated and negotiated hundreds of cases, including multi-million dollar and high profile disputes. Mr. Stern is licensed to practice law in Massachusetts, New Jersey and New York; however, he has successfully litigated cases in state and federal courts (trial and appeal) across the United States. Mr. Stern’s active international case load has required him to not only work with attorneys in Canada, Caribbean, Europe, Mexico, and Middle East, but also learn the customs, practices and laws in those jurisdictions.
Mr. Stern began his legal career working on many reinsurance matters (including being the only associate handling the Unigard v. North River trial and appeals). Mr. Stern was the fifth attorney hired in Clausen Miller’s New York Office. As the firm has grown, so has Mr. Stern’s areas of practice. He has received assignments in almost every Clausen Miller practice area: admiralty/aviation/maritime/transportation; appeals; casualty/liability; corporate; disability/health/life; fidelity/surety; construction; environmental; first-party property; intellectual property; international; premises liability; product liability; real estate; reinsurance; and subrogation.
Mr. Stern received his Bachelor of Arts degree in Political Science and Economics, and completed the degree requirements for a Bachelor of Science in Psychology from Union College. He was awarded a Juris Doctor from Boston University School of Law. Prior to practicing law, Mr. Stern was employed with various law enforcement and investigative entities (as a Guard, Patrol Officer, Agent/Special Agent and/or Officer), including the Department of the Treasury, United States Custom Service as an Inspector. Mr. Stern was also a licensed N.Y.S. Emergency Medical Technician.
Mr. Stern has an AV® rating with Martindale-Hubbell indicating the highest ranking in legal ability and ethical standards as determined by his peers in the legal community. He has been named a New York Super Lawyer every year since 2006. Mr. Stern was the 2009, 2010, 2012, 2013 and 2014 Chair of the National Property Subrogation Strategies ExecuSummit; Co-Chair of the Property Track for NASP’s 2010 Litigation Skills and Management Conference; Co- Chair for NASP’s 2011 Litigation Skills and Management Conference; and was Co-Chair of the Product Liability Track for NASP's 2012 and 2013 National Annual Conferences. He is also included on the New Jersey Courts’ Statewide Roster of court-approved mediators as an R. 1:40 qualified mediator. He is a Certified Property Subrogation Arbitrator and was listed as a member in the Global Register’s Who’s Who in Executives and Professionals. In 2014, Mr. Stern was a Co-Editor of NASP's Subrogator Magazine, and in 2015 is the Editor-in-Chief. He is currently the Editor-in-Chief of the East Coast CM Report of Recent Decisions.
Mr. Stern frequently presents seminars and articles of interest to insurers, including courses at various insurance forums (NASP (Annual, Lit Skills and Chapters), National Property Subrogation Strategies ExecuSummit and PLRB/LIRB (Annual and Regionals)). He received the New York County Lawyers Association’s Certificate of Appreciation for pro bono work from 1992 through the Present; the New York State Bar Association’s Certificate of Appreciation; and was awarded "Partner in Education" by the New York City Public Schools. He was also Co-Editor of the Youth Law Manual distributed in New York Public Schools and a legal research assistant for the treatise "Securitization."
Mr. Stern created an educational video/DVD titled: "Alternative Dispute Resolution Techniques and Preparation." The 60 minute course addresses strategies and techniques in preparing for Arbitration, Mediation and Negotiation. The course is available at http://www.researchandmarkets.com/.
Mr. Stern authored a chapter in the New Appleman on Insurance Law Library Edition, a LexisNexis publication considered to be the most comprehensive source for insurance law. Chapter 161, entitled "Limitations On Bringing Subrogation Claims," addresses various subjects such as subrogating against an insured, actions impairing subrogation rights, waivers of subrogation, voluntary payment doctrine, estoppel, splitting causes of action, unclean hands, laches and invalidity of a tortfeasor's insurance policy. The Chapter not only provides an analysis of recent case law, with citations, but also helpful hints from Mr. Stern. A copy of New Appleman on Insurance Law Library Edition is available by searching the publication at www.lexisnexis.com/store.
Mr. Stern was presented with the Spirit of NASP Award from the President of the National Association of Subrogation Professionals, at NASP's 2015 Annual Conference. This honor was given to Mr. Stern in recognition of his many contributions to NASP and the subrogation industry.
Charles Platto is an independent mediator and arbitrator specializing in domestic and international commercial and insurance mediation and arbitration.
For the past 25 years he has been adjunct professor of Insurance Law at NYU Law School, Vermont Law School and currently at Fordham Law School.
He spent the first twenty years of his career as a litigation associate and partner at Cahill Gordon & Reindel in New York and Paris. Subsequently, he was a partner in his own national boutique insurance law firm, based in Vermont, New Hampshire and New York, partner in charge of the US practice of the international firm Salans (now part of Dentons), and then partner in charge of the national insurance practice of Wiggin and Dana, based in New York.
He is a past Chair of the International Litigation Committee of the International Bar Association and the IBA Task Force on Economic Consequences of Litigation Worldwide, and is currently a vice chair of the ABA Insurance Coverage Litigation Committee and an Editor of the Insurance Litigation Reporter (Thomson Reuters). He is the author/editor of 9 books on international litigation and arbitration and of numerous articles on insurance and arbitration/mediation.
As an arbitrator/mediator, Mr. Platto is a member of the panels of AAA, ICDR, CPR, ICC, ARIAS, FedArb, and REMEDI. As a full time arbitrator/mediator for the last five years, he has served as chair or panel members in a number of major domestic and international commercial and insurance arbitrations. In 2013, following Super Storm Sandy, he was asked by the American Arbitration Association to help set up and train the mediators for programs in New York and New Jersey to resolve all residential and commercial Sandy insurance claims. He subsequently mediated over 200 such claims through AAA and the New York and New Jersey state and federal courts.
Very informative presentation.
Great to have 3 different approaches represented here and to gain more insight into subrogation, as an insurance defense attorney who is considering becoming a mediator.
Very enlightening and well presented
Very experienced panel who communicated in a expert manner
Good primer on basics of insurance, insurance claims and mediation, i.e., not just potential problems but solving them. The panel discussion was a good vehicle for this type of program.