Dodging Settlement Traps
CLM's Young Professionals Community recently held its first webinar on settlement pitfalls.
By Eric Gilkey
CLM’s Young Professionals Community recently held its first webinar, “Avoiding Common Pitfalls in the Settlement Process,” which drew over 460 registrants. Below are a few key takeaways from the presentation.
Joshua Bennett, Shareholder, Rogers Townsend
Amanda Shrewsbury, Claims Attorney, Berkley Environmental
“On today’s webinar, we will focus on some common pitfalls in the settlement process and talk about ways to avoid them and achieve better outcomes without any potential hiccups. We’ll offer several reminders to help you stay sharp and successful in your negotiations.”
“Pitfall number one is not knowing your case. This might seem obvious to most, but it’s often overlooked. Unless you have a complete understanding of the strengths and weaknesses of your case as well as alternative options, it’s difficult to make an informed decision on your negotiation strategy.”
“[Another] pitfall is defense counsel not negotiating all of the terms of the settlement that they need and want in that final agreement and release, such as the scope of the release, which parties are involved, and the claims being released. Confidentiality and indemnification provisions should be included in every settlement agreement, too.”
“The skill to defend your insured depends in part on your ability as an adjuster to evaluate information provided and use it skillfully. You have to decide what you will reveal to the other side, and when you’re going to do it. For instance, if you appear to be withholding vital information, you might lose the plaintiff’s counsel cooperation.”
“You are subject to an array of sanctions if the right people don’t show up to the mediation. Many jurisdictions and courts can use their sanction and contempt powers, or they can make you pay attorneys’ fees and even mediator’s fees. Opposing counsel can take advantage of sanctions if the right people don’t show up.”
“You need to anticipate the arguments that you will hear from the mediator and opposing counsel, and you need to have the key themes and talking points ready to make during the mediation. Combine preparedness with realistic expectations. If you’re a new adjuster…hold a roundtable with colleagues to help you feel confident.”
“What’s important to remember is that a settlement agreement may have to be approved by the court whether or not a suit is ever filed. So even if you’re able to settle a claim pre-suit and no attorneys are involved, you still might need to get that settlement approved.”
“What do you do in a situation when a claimant increases a demand at mediation? There are a few situations in which this might be justified, such as if settlement discussions took place when the claimant was unrepresented and they did not consider all of the possible damages.”