What is the loss adjuster’s goal in a settlement negotiation?
To resolve the claim in a fair and equitable way.
Identify and define TWO (2) bases for negotiating styles. How do they differ from each other?
- 1) rights-based negotiation: one party will lose and the other one will win;
- 2) interest-based negotiation: where cooperation is stressed and each party is expected to make concessions to the other in order to eventually answer to both parties' needs.
What tools can be used by negotiators, in a negotiation session, to remain focused on the issues?
repetition to help people remain focused
When meeting an injured claimant, what can the adjuster say at the outset to set an appropriate tone for the meeting?
The adjuster can express his empathy for the injuries sustained “...I’m sorry this has happened...” but avoid indicating you know how it feels.
Why is reactive devaluation a danger when the adjuster makes the first offer of settlement?
Reactive devaluation occurs when the other party interprets your first settlement offer as being the lower end of the settlement range and will react by looking for a larger number
When may parties decide to try alternative dispute resolution methods, such as mediation?
When negotiations break down or the claim was denied, mediation is possible instead of litigation
What skills should a mediator have?
The mediator must be neutral and skilled in negotiation, communication, interviewing, and counselling.
What role can the loss adjuster play in mediation?
act as the insurer’s representative during mediation proceedings
What authority should the adjuster bring to the mediation, and why?
The adjuster should have the authority to agree to a settlement in mediation, otherwise another representative will have to be brought in (with the authority) and much time and effort would have been wasted
Why might litigation defence counsel not be comfortable with the approach needed in mediation?
Litigation council is most comfortable with the adversarial system and may not adapt well to the co-operative nature of mediation.
How is the role of counsel in mediation similar to their role in litigation?
Council participates in negotiation, interprets information, and provides feedback as necessary
What terms are outlined in the mediation agreement?
- The mediation agreement sets out all the terms and conditions of the mediation, including confidentiality. Such items as:
- Who will pay the costs
- What will happen if mediation is cancelled
- Issues of confidentiality
- Other terms that may be a source of contention later
Why should the opposing party be given an opportunity to question any expert witness?
- Expert witness testimony tends to carry more weight if opposing council may question them.
- Refusing to allow opposing questions will cast suspicion on the testimony given.
separate, private, side meetings in mediation
What is “jackpot syndrome” and why is it an obstacle to a successful mediation?
- occurs when a claimant feels they have a very good case and can secure a larger settlement at trial.
- This is a problem because it is a disincentive to the claimant to continue with mediation.
List THREE (3) options that might be available should a mediation break down.
- Neutral evaluation
When should surveillance evidence be disclosed?
Surveillance evidence should be disclosed in the mediation summary and sent to counsel ahead of time.
What are the TWO (2) different approaches to confidentiality for caucusing? Why would one approach be chosen over the other?
- 1) everything discussed can be revealed to the group as a whole;
- 2) everything revealed is confidential unless agreed that it can be shared with the group;
- promise of confidentiality encourages participants to disclose information fully;
- Each party may lose if goes to litigation;
- legal fees are not usually recovered;
- each party assesses the current situation and what their chances of success would be in court;
- claims rep have an opportunity to reflect on what was said
Which statement is incorrect – Mediation is an important tool because...
it is binding on both parties
The role of a mediator...
...generate creative solutions to the dispute
In mediation “caucus” means...
...separate, private side meetings
The best way for an adjuster to acknowledge a claimants injury is to...
...Say “I am sorry you were injured”
During negotiations, of the following, which is the best way to handle someone who becomes angry...
...Listen respectfully, be calm and friendly
EQ: Interest-based negotiation takes place when...
...each party is expected to make concessions to the other
EQ: Poor communication is often the cause of...
...disputes between parties
EQ: Anger can impede effective negotiation because, when people are angry, they tend not to...
...hear or understand what is being said
...can be referred to as assisted negotiation
EQ: As it relates to the mediation process, caucusing is...
...separate, private, side meetings
EQ: Which of the following is the most likely expression of an empathetic adjuster to a claimant's injury?...
EQ: Mediation is an alternative to litigation because litigation is often...
...slow and costly
EQ: An ideal mediator is...
...skilled in negotiation, communication and counselling