Hussmann: What to do if someone shrugs off mediation?

By William G. Hussmann Jr.

So your local Indiana court has ordered you to mediate in your regular old civil case. You know — the kind of case involving a fender-bender, slip and fall, or piece of machinery or software program that didn’t work. The damages aren’t huge, but they aren’t exactly minimal, either. Let’s be optimistic and assume the COVID-19 restrictions have been lifted for the following hypothetical: You have been ordered to mediate by June 1, and so you have arranged with the mediator to have a session on May 21.

On May 14, the mediator gets a call from defense counsel. His/her insurance claims person is really busy and wants to appear by telephone. Is that OK?

Well, I don’t know about other mediators, but my first response is to ask Mr./Ms. defense lawyer: “Have you checked with plaintiff’s counsel?” I know that sometimes insurance adjusters really appreciate the courtesy of telephone appearance and are much more receptive to settlement discussions and generosity when they don’t have to drive down from Chicago at 5:30 a.m. to get here in person in time to mediate and then drive back home. So maybe attendance by phone is a good idea, and maybe the plaintiff’s counsel will think so, too. So usually, I will end the conversation with: “Call the plaintiff’s counsel, and get back with me if there is no agreement.”

So then the call comes back to the mediator. Plaintiff’s counsel had to file suit because the adjuster would never return his/her calls. The insurer has not offered dime one on the claim yet, even though liability is probably going to be admitted here. The last time plaintiff’s counsel had this adjuster by phone, the adjuster didn’t push the mute button on his/her phone, and everyone could hear the adjuster’s thousands of keystrokes going on during the session, and it was pretty likely those keystrokes weren’t all about the case at issue. At the close of that prior session, the adjuster added $1,000 to the original offer and the case didn’t settle. Plaintiff’s counsel is not enthused about trying that again.

So the mediator is stuck with this dilemma. Do I/can I order the adjuster to drive five hours each way and appear in person for a pretty modest/routine claim? Do I subject the plaintiff to a likely futile morning (and some costs!) if I don’t do that? After all, the court has ordered mediation in the case.

What is a mediator to do?

Indiana Alternative Dispute Resolution Rule 2.7 (B)(2) says:

“All parties, attorneys with settlement authority, representatives with settlement authority, and other necessary individuals shall be present at each mediation conference to effectuate settlement of a dispute unless excused by the court” (emphasis added).

Notice that the rule does not say the necessary persons must be present “in person”. A refusal to drive down, but agreement to appear by telephone, does not technically violate the rule, since the adjuster is still “present” in some sense.

Let’s assume that Mr./Ms. Mediator decides that if we are really going to get this done, I will need to order the adjuster to appear in person. I notify the defense counsel that I, the mediator, am ordering the adjuster to appear in person.

May 21 arrives. Either the adjuster just doesn’t show up, but notifies defense counsel that the adjuster is in his/her office if needed; or, maybe worse yet, in walks the local “claims agent” who knows nothing about this case, and has no authority to act until he/she calls the adjuster, but certainly there is a warm body “present” on behalf of the defendant. There is not, however, any petition filed with the court requesting that the adjuster be excused, be allowed to attend by phone, or any order granting the same.

My inclination is to do the best I can on May 21 to get the case settled with what persons are present on that day. But what happens if the case does not settle? What happens if the case does not settle because — in the mediator’s view, the plaintiff has extremely unrealistic expectations for settlement of the case? What happens if — in the mediator’s view, the case does not settle because the defendant has taken an unreasonable position on settlement?

Here is the quandry! I am asking which of the following courses the mediator should take — or if there is another under these circumstances. My options are:

• If the case settled, do nothing. After all, it settled!

• If the case settled, nevertheless submit a report to the court that the insurance adjuster ignored your order to appear in person and did not obtain court permission not to attend and leave it at that.

• If the case settled, nevertheless submit a report to the court that the adjuster ignored your order to appear and did not obtain court permission not to attend and request that the court issue a sanction.

• If the case did not settle, do nothing.

• If the case did not settle, submit a report to the court that the insurance adjuster ignored your order to appear in person and did not obtain court permission not to attend and leave it at that.

• If the case did not settle, submit a report to the court that the insurance adjuster ignored your order to appear in person and did not obtain court permission not to attend and ask the court to issue a sanction.

Please contact me at [email protected] and let me know what you think I should do. I will report the results of this survey by way of an e-mail to all who respond.•

• William G. Hussmann Jr. is of counsel at Kightlinger & Gray LLP. Opinions expressed are those of the author.