By Gerald T. Albrecht

It had been a very long day. I had just returned to the office after conducting an Examination Under Oath on a large hurricane claim. I was tired. I was hungry. And I had over 100 emails to read.

I scanned through my incoming pleadings. (How many (b)(6) depo notices can you get in one day)? And then I see an Order of Referral to Mediation. Great. Now I have to prepare for that. Have we even done any discovery yet? I start packing my briefcase. Ugh, now I have a mediation summary to do as well. Wait, no , I have an associate. Perfect! I will have the associate draft and send the summary to the mediator and I will read it the night before…well, maybe the morning of , the mediation. (Does the mediator even read the summary?)

So that was my life. For a long time. Examinations Under Oath, coverage opinions, depositions and trials. Natural disasters, or not. Accidental losses, or not. But thousands of property claims passed my desk. And all of the lawsuits eventually wound up in mediation.

As a younger lawyer, ( a long time ago), I never really appreciated the mediation conference. Why can’t you just go in there and give them a number, and if they don’t take it, you walk? Simple. To the point. No fuss.

As I got older I began to realize there was so much more to the process. The nuances of negotiation. The politics in both rooms and between each side. And, the ability to talk to the other side to learn about their case, and yours. Over time, I began to love the process. I would actually spend time crafting and practicing, my opening mediation statement. I know, I ’m weird, but how many of us can say that these days?

Now, I go to the office. When I sit down at the mediation table…I don’t sit on one side. I sit at the head of the table. Instead of litigating the property claims, I mediate them. I would like to share with you what I have learned as a mediator, especially when helping to resolve property insurance claims.


I cannot stress how important it is for the claimant to document the claim. Do it early. Do it often. Insurance companies want, and will require, photographs , detailed repair and replacement inventories, estimates, and receipts. Having these documents, and having them in the claim file early, helps the adjuster in getting more authority to pay the claim.

Most insurer s will have conference calls or meetings with the adjuster/litigation representative, and/or the defense attorney , in advance of the mediation conference. This is when they discuss the authority to be given for the mediation. The more the adjuster is able to answer questions about the damages, and the more documentation they are able to show from the claims file, the more authority will be provided. It truly is that simple.

Now, on the insurer side, I would also tell you that you need to read the documentation. Countless mediations have ground to a stop so that the claim representative can read through documentation previously submitted by the claimant. This is especially true when a litigation representative is at the mediation, and not the adjuster. With the onslaught of AOB and hurricane litigation, these litigation representatives are stretched to their limit. Which leads us to the “early” part.

Dumping a lot of documents on the insurer on the eve of the mediation does nothing. They don’t have time to read and understand it all. They don’t have time to get more authority. They won’t get to discuss the ramifications of that documentation with their attorney until the morning of the mediation…and that assumes that the attorney has been able to read it all.


Of course, before we even try to calculate the true damages, the parties must understand and appreciate the overall coverage issues. For the carrier, that means detailed coverage position letters to the claimants. (Some may be, in fact, “denial” letters). But the claimant must understand the carrier’s position on what is covered and what is not. And more importantly, why. And…in English, please. As a trial lawyer, I always knew that the coverage decision letter was going to be exhibit 3 at trial. (Policy, Proof of Loss, Denial letter…pretty much like clockwork). I always wanted the jury to read that letter and understand it. And, as a mediator, it is always helpful for the claimant to read it and understand it as well. (Well..ok…and me too..)

By the way, we do read the summaries, in detail. And it helps a great deal to be able to go into the claimant’s room and tell them clearly and succinctly why something is not covered. They may not agree, but at least they will understand your position. That is the beginning of any negotiated settlement.

For both the insurer and the claimant, I think it is critically important to break down the damages in detail and under the specific coverage provisions in the policy. It helps a great deal for the claimant to set forth what is being claimed for the Structure, Contents, Extra Expense and Business Interruption, ALE (Additional Living Expenses), and the consequential and “bad faith” damages as well as fees and costs. Again, the parties may never agree but at least you can break down the claims into different elements to see what can be done, even if it means resolving some of the claims, but not all.

It all comes down to thinking about and preparing for the mediation…before the mediation.


A few years ago, I was mentoring a young solo practitioner. He had a key fact witness whom he thought was going to give great testimony at trial. He called me to ask about the deposition he was going to take, and some other issues related to the witness. I asked him about what specifically the witness was going to say. I wasn’t getting good answers. I finally asked him: “ Have you talked to this guy”? His response was: “ You can do that?” “ You can actually talk to a fact witness ”? Ahh, young lawyers. They text, they email, and even depose…but the thought of actually just picking up the phone and talking to somebody is, well, strange. The same can be said for picking up the phone and talking to opposing counsel. We text, we email, we posture, we write “beat my chest” and preening emails….but too often we don’t just talk.

It amazes me how much time is wasted in mediation, just getting the two sides to share basic facts and positions. The property insurance bar in this state is growing, but it is still a specialized niche. We tend to see the same lawyers and firms. You don’t have to be best friends with opposing counsel, but you should not fear to have cordial, professional and substantive conversations about your clients and cases. It is not a sign of weakness to talk. Rather, it is a sign of strength.

And, it is ok to talk to the mediator, with opposing counsel, before the mediation. In fact, I encourage it. So much time and effort can be saved by framing the coverage issues and damage disputes before we sit at the mediator’s table.


I absolutely love being a mediator. Every day is a different case, a different challenge. And, there is nothing better than the “high’ of getting a contentious, problematic case to settlement. But to get there please remember these basic tenants. Document the damages. Analyze the coverage and damage issues. Talk amongst yourselves and with the mediator. And do all of this before you even sit at the table. Now, get back to preparing for that next depo and reading all those emails.