Article: How To Bypass an Impasse At Mediation

Here is a LINK to my article entitled "How To Bypass an Impasse at Mediation" which has just been published in the March/April edition of the Pennsylvania Lawyer magazine.

With this article I gathered lessons from my experience as a certified Federal Middle District Court Mediator and as a private Mediator with Cummins Mediation in order to provide tips on how to get past those difficult times at Mediation where there seems to be no way to move forward with the negotiations.  The hope is that these suggestions will enable you to realize more success at more Mediations.

Proud to note that this is my 200th published article.  Hope you enjoy it and that it helps you with your practice.

Should you ever need assistance with trying to bring a case of yours to a close through a Mediation, please consider Cummins Mediation.

570-319-5899

dancummins@cumminslaw.net

ARTICLE: 5 Tips to Improve Your Chances for Success at a Mediation

The below article of mine was recently published in the Pennsylvania Law Weekly and is republished here with permission from the publisher.

5 Tips to Improve Your Chances for Success at a Mediation


By Daniel E. Cummins

The current trend in civil litigation matters, especially with more generous, headline grabbing jury verdicts coming down in the time since the pandemic, is that most cases are being resolved by way of nonbinding mediations. Experience shows that taking the following steps in advance of mediations and at mediations can improve one’s chances for a favorable settlement of a matter.

Trust Your Selected Mediator


Whether your mediator has a background as a plaintiff’s attorney or an insurance defense attorney, or both over the course of their career, every mediator worth their salt understands the need to approach a mediation from an entirely neutral perspective. It can be safely stated that most, if not all, mediators take pride in their ability to set aside any preconceived notions with respect to litigation matters and thereby offer the parties a balanced view of the pros and cons of the claims and defense presented.

And so once you have vetted and selected your mediator, you should trust your mediator to conduct a fair review of the file in order to assist all parties in working toward an amicable resolution of the matter.

Zoom Is Just as Effective


In the time since the COVID-19 pandemic, the use of remote meeting platforms, such as Zoom, has become the norm for mediations and arbitrations. Experience advises that virtual mediations are just as effective as mediations that are held in person.

The use of remote means to complete meditations also has the added benefit of reducing the stress on the parties involved. Plaintiffs still get to have their day in court but are able to do so from the comfort of their own home or their attorney’s office. Claims professionals participating remotely will have avoided the stress and expense attendant with being required to travel to be present at an in-person and may thereby be in a more comfortable frame of mind as the negotiations begin.

Whether a mediation is set to take place virtually or in person, the key to your success at a mediation, regardless of the format, is to be fully prepared to present your client’s case at the mediation.

Be Prepared


On the plaintiff’s side of a mediation, the day of the mediation is usually going to turn out to be that client’s one day in court. On the defense side, the mediation is a day for the carrier to try to close another file by way of a reasonable settlement and thereby save on further defense costs. As such, whether counsel is on the plaintiff’s side of the matter or the defense side of the matter, with the attorney serving as the mouthpiece for the client, the client deserves counsel that is fully prepared and knows the file inside and out.

Accordingly, in preparation for a mediation, counsel should expect that opposing counsel will be perusing every page of every document in the file in an effort to prepare for the meeting. As such, the file should be equally thoroughly reviewed on your own side as you never know what opposing counsel may find in the deepest corners of the file that could hurt your client’s case.

For example, a gold mine in this regard includes physical therapy notes in which there is typically a treasure trove of information that could help or hurt either side of the case. It also is advisable to peruse the transcripts of the depositions of the parties and witnesses completed in the case in order to be reminded of the overall tone of the case as you prepare to negotiate on behalf of your client at a mediation.

Perhaps one of the most important parts of preparing for a mediation is immersing oneself into the thought processes of opposing counsel in order to fully anticipate the arguments that opposing counsel will make to the mediator. What will opposing counsel’s arguments be on the liability issues? What will opposing counsel’s arguments be on the prior medical history or causation issues? What will opposing counsel argue relative to the type and extent of the injuries and economic damages alleged? Write down an outline of responses to each of these anticipated arguments so that you are prepared to quickly counter the anticipated arguments from the opposition.

Part of being fully prepared for a mediation should also include a conference with one’s own client or insurance company representative prior to the mediation in an effort to determine what expectations exist and, if necessary, to begin to temper or manage such expectations.

Fully preparing for the mediation will serve to avoid surprises for counsel or the client and may make the process move faster given that you will have all of the necessary information to negotiate at the forefront of your mind and at your fingertips.

Be Sure to Exchange Submissions With the Other Side


In addition to planning to draft a mediation memorandum that is concise and to the point, one should also plan to share that memorandum and the supporting exhibits with the other side. Nothing may further the chances for success at a mediation more than sharing one’s submissions with the other side and requesting that the information being exchanged be shared with the opposing party or the opposing insurance company in advance of the mediation.

It is always wise to draft a mediation memorandum that pointedly, but respectfully, emphasizes the weaknesses of your opponent’s case. Soften the harshness of the presentation of information that is detrimental to the other side by phrasing it in terms of the real world impact of that evidence by noting how a jury may react to that information when it comes out at trial.

To add to the credibility of your submissions, it may also be wise to suggest that you acknowledge and understand the issue with your own case while still attempting to minimize the importance of those difficulties.

The mediation memorandum should also outline the reasons that the opposing party should desire to have the case amicably resolved as opposed to litigated further or tried. Never hesitate to point out that a settlement will save time and expenses and will avoid the uncertainty of a jury verdict.

In terms of supporting exhibits, only provide the mediator with the most pertinent liability documents, photographs, medical records, and economic damages supports necessary to drive home the salient points of your case or defense. A documents dump of voluminous records will be frowned upon by the mediator and will only serve to increase the expenses of the mediation given the extra time it will take for the mediator to wade through the documentation. In this digital age of litigation, the symbolism attendant with a large binder of documents that a big binder equals a big case is no longer relevant.

An attorney’s credibility will be enhanced by that attorney taking the time to pinpoint the most relevant documentation to present to the mediator in advance of the mediation. Should there be additional, more detailed documentation you might wish to share with the mediator, you could always have that ready to show the mediator those documents at the mediation.

Also know and keep in mind that, given that the Rules of Civil Procedure pertaining to discovery are designed to provide for full disclosure and to prevent any surprises at trial, there will likely be no secrets on how you will likely present your case at trial by the time you get to a mediation. As such, there is really no reason not to share your mediation memorandum and supporting exhibits with the other side. As noted above, the sharing of your submissions with the other side will not only highlight to the other side the difficulties they may face with their case, but will also let the other side see and know that you are ready, willing, and able to go to bat for your own client at trial if it comes to that.

Certainly, if you are going to instead keep your mediation memorandum and exhibits confidential from the opposing side and only submit them to the mediator, be sure to give the other side the professional courtesy of a heads up in this regard before the other side submits their materials to the mediator. Otherwise, you could look petty, you may irk the opposing counsel and party, and you may cause the mediation to get off to a bad start by creating negative feelings which, in the end, could hurt or delay your client’s chances for a favorable outcome at the mediation.

Avoid Posturing for the Sake of Posturing


Posturing for the sake of posturing at a mediation is never advisable. Everyone involved in the proceedings can easily see posturing for what it is, i.e., the taking of a stance that bears no reasonable resemblance to a fair and practical evaluation of the case presented. The act of presenting an entirely unreasonable offer or demand at a mediation really serves no purpose and hurts the credibility of the attorney advancing such positions to the detriment of that attorney’s client or insurance carrier.

Knowing where your endgame may be in terms of a settlement figure, the better approach at a mediation is to make measured moves in the negotiations that signal a willingness to negotiate while still remaining firm on one’s belief as to the proper number for a settlement from the perspective of your client.

In the end, each side should work with the mediator in an effort to tap out the other side’s complete settlement authority and get to the number that perhaps no one is completely happy with but is more than content with to call it a day in order to avoid additional time-consuming and expensive litigation along with the uncertainty of a jury verdict.

Daniel E. Cummins is the managing attorney at Cummins Law where he focuses his practice on motor vehicle and trucking liability cases, products liability matters, and premises liability cases. He also serves as a mediator for the Federal Middle District Court and for Cummins Mediation in these types of cases. He is additionally the sole creator and writer of the Tort Talk Blog at www.TortTalkcom.


Reprinted with permission from the June 4, 2025 edition of the "The Pennsylvania Law Weekly © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.

Court Addresses Applicability of Mediation Privilege (42 Pa.C.S.A. Section 5949)

Did you know that there was a provision in the Judicial Code codifying the rule that information exchanged at mediations should be treated as confidential by all parties involved?

In the case of Lee & Associates v. Conewago Industrial Park Associates, No. 2018-00757 Civil (C.P. Cumb. Co. Feb. 8, 2021 Peck, J.), the court addressed the concept of a mediation privilege in the context of a Motion to Compel Discovery filed by a Plaintiff in a civil action in which a commercial realtor was suing a landowner for commissions allegedly earned in connection with the sale of two (2) lots owned by the Defendant.   

In this case, the Plaintiff’s attorney sought the discovery of documents signed by persons where not parties to a mediation.   

Under the mediation privilege, all communications and documents shared during a mediation are considered to be privileged from disclosure outside of the mediation proceedings.  See 42 Pa. C.S.A. Section 5949.

The court ruled that the mediation privilege did not apply to the case at hand. As such, the Defendant was compelled to provide discovery with respect to the commissions at issue.   

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Thomas E. Brenner of the Harrisburg, Pennsylvania law firm of Caldwell & Kearns, P.C. for bringing this case to my attention.  

ARTICLE: The Art of Mediating: The Goal Is to Settle, Not Win

The below article of mine providing tips on handling mediations was published in the October 17, 2017 edition of The Legal Intelligencer and is republished here with permission.

Should you need any assistance in mediating cases through the end of the year or beyond, I would be happy to help through Cummins Mediation Services.  Please contact me at dancummins@CumminsLaw.net for my resume, fee schedule or to arrange for a Mediation.   Thank you.

The Art of Mediating: The Goal Is to Settle, Not Win

The Legal Intelligencer

October 17, 2017    

By

Daniel E. Cummins

With the uncertainty of what a jury will do in a particular case and the significant costs associated with trying a case to verdict, alternative dispute resolution proceedings in the form of mediations and arbitrations have been a rising trend across the commonwealth of Pennsylvania.

The following practice tips for nonbinding mediations may assist litigants in bringing their cases to a desired resolution.

Be Fully Prepared

All too often, parties may arrive at a nonbinding mediation without having provided the opposing party with all of the 
information necessary to allow for a successful mediation.

On the plaintiff's side, there are times where a plaintiff has not yet finalized the information pertinent to the economic damages claims, such as wage loss claims or medical expenses claims. At times, the parties are still waiting for the completion of the lengthy process associated with securing health care, Medicaid or Medicare liens.

It is advisable to postpone any mediation proceedings until this information has been secured and documented so as to allow the defense to complete its evaluation and arrive at the mediation with additional settlement authority. The production of such information also provides the plaintiff with ammunition to argue for a higher settlement of the claims presented.

On the defense side, it may be advisable not to proceed to an arbitration until all written discovery, depositions and expert review of the claims presented has been completed.

Plaintiffs allowing a case to proceed to mediation before such items have been accomplished may be faced with a defense asserting that there is no additional settlement authority to be discussed at the conference but that the case may be revisited after the completion of additional discovery efforts, such as an independent medical examination of the plaintiff. Plaintiffs can take away this argument by not agreeing to proceed to mediation until such discovery tasks are completed.

Written Submissions Are Important

When proceeding to a mediation, it is important to provide the mediator with a concise, but thorough, overview of the claims and defenses presented. A concise chronology of the facts of the underlying matter will inform the mediator as to the legal issues presented and provide an initial sense as to the value of the claims asserted.

Written submissions need not contain a recitation of every medical visit or diagnostic study completed. Rather, the highlights of the plaintiff's treatment following the accident will suffice.

On the defense side, a mediation memorandum can be utilized to raise and provide support for defenses on the liability issues, the causation question and the alleged extent of the injuries and damages presented. A defense mediation memorandum can also be utilized to emphasize the plaintiff's prior medical history so as to confirm that the case presented involves an aggravation of a pre-existing condition claim.

There is also no need to provide a mediator with voluminous written materials to review. Rather, litigators should emphasize the highlights of the case through documentary evidence. Rather than providing the mediator with complete medical records, it may be advisable to only submit the notes of the important office visits and notable reports of diagnostic films and studies.

Also, rather than submitting entire transcripts of depositions, the better practice may be to submit the cover page of the deposition transcript along with the pertinent pages that may have been cited in the mediation memorandum.

In addition to not overburdening the ­mediator with unnecessary information, presenting more concise documentation will also serve to keep the cost of the mediation down as the mediator will have less to review in preparation for the proceedings.

Oftentimes, the parties will submit their mediation memorandum and supporting exhibits to the arbitrator confidentially. The better practice is to disclose your materials to the opposing party in order that the opposing party may share the same with their client in order to let their client know of the weaknesses of the case presented and the strengths of the opponent's case.

Prepare Client and Claims Representative

Most plaintiffs and some claims representative are not familiar with how the mediation process works.

The better practice is to fully inform your client that, at a mediation, the mediator will likely have all of the parties in the room for an initial conference at which updates on the case presented can be provided. At the initial conference, both parties may also be invited to provide their overview of the case presented in order to let the opposing party know how the case is viewed by the opponent.

A plaintiff should be advised that he or she may be requested by the mediator at this initial conference to provide an update as to the client's condition and treatment. In this regard, a plaintiff who admits to improvement in his or her condition with the treatment provided to date adds to the credibility of that litigant. An injured party who contends that there has been no improvement whatsoever in his or her condition despite years of treatment may have their overall credibility called into question by the opponent.

If a plaintiff is reluctant to admit improvement, the plaintiff can add the proviso of that, while he or she may have improved somewhat over time, the injuries have not resolved and continue to limit the plaintiff in his or her everyday activities of daily living.

The client should be advised that, once the initial conference is completed, the mediator will likely put each party in a separate room and commence the negotiations by traveling back and forth between the rooms in a continuing effort to bring the parties closer together towards an amicable resolution of the claims presented.

The parties should also be made aware that there may be a reiteration of the same points over and over with different emphasis on different points at different times during the course of the mediation. This is all a part of the process of helping each side of the litigation to fully understand and appreciate the pros and cons of the claims and defenses presented.

The client and the claims representative should also be advised that the mediator has been selected to preside over this mediation because that person has experience in evaluating the claims presented in the jurisdiction in which the case is pending. It should be noted to the parties that a mediator typically does not provide the parties with his concrete evaluation of the case presented as the job of the mediator is not to evaluate the case. Rather, the mediator's function is to facilitate negotiations between the parties towards a settlement figure that each party may not be entirely happy with but are satisfied enough to agree to conclude the matter.

Listen to What the Mediator Is Saying

When engaging in a mediation, parties may get so wrapped up in their own position that they may fail to listen to the information being provided by the mediator after the mediator has met with the opposing side.

Listening to what the mediator is reporting from his last conference with the opposing party may send signals as to where the opposing party may be willing to proceed in its next step.   Listening to such information may also assist the party hearing the information in formulating their next step in the negotiation process.

Be Clear on What Can Be Disclosed

At various times during a mediation, a party may disclose information to the mediator that the party does not wish to be disclosed to the opposing counsel.

When disclosing information to the mediator that a party does not wish to be revealed to the other side, that party should be clear in its statement to the mediator that such information should be kept confidential. Mediators will keep this information confidential to keep your trust.

The provision of such confidential information may assist the mediator in understanding certain aspects of the case and why a party may be taking a particular position on a particular issue. The disclosure of such information to the mediator confidentially may, in the end, assist the mediator in massaging the other side closer toward a settlement figure.

Willingness to Negotiate

Obviously, the success of any mediation depends upon the willingness of each party to negotiate reasonably. In addition to emphasizing the strong points of one's case, the credibility of the parties will be enhanced by that party's concession with respect to the weak points of their case presented. An admission of the weak points of a case, with an associated explanation as to how that party plans to deal with those weak points at a potential trial, will provide the mediator with information to take to the other side in the continuing negotiations on the case presented.

When going into a mediation, clients and claims representatives should be made aware that the goal is not to "win" the case, but rather to settle the case and secure compensation or close a file. Shifting the parties' focus from winning to settling prior to going into the proceedings may make all the difference in the success of a mediation. •

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Cummins Law. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.  Attorney Cummins also provides Mediation services through Cummins Mediation Services.

ARTICLE: The Art of Mediating: The Goal is to Settle, Not Win

The below article of mine providing tips on handling mediations was published in the October 17, 2017 edition of The Legal Intelligencer and is republished here with permission.

Should you need any assistance in mediating cases through the end of the year or beyond, I would be happy to help through my venture at Cummins Mediation Services.  Please contact me at dancummins@comcast.net for my resume, fee schedule or to arrange for a Mediation.   Thank you.

The Art of Mediating: The Goal Is to Settle, Not Win

The Legal Intelligencer

October 17, 2017    

By

Daniel E. Cummins

With the uncertainty of what a jury will do in a particular case and the significant costs associated with trying a case to verdict, alternative dispute resolution proceedings in the form of mediations and arbitrations have been a rising trend across the commonwealth of Pennsylvania.

The following practice tips for nonbinding mediations may assist litigants in bringing their cases to a desired resolution.

Be Fully Prepared

All too often, parties may arrive at a nonbinding mediation without having provided the opposing party with all of the 
information necessary to allow for a successful mediation.

On the plaintiff's side, there are times where a plaintiff has not yet finalized the information pertinent to the economic damages claims, such as wage loss claims or medical expenses claims. At times, the parties are still waiting for the completion of the lengthy process associated with securing health care, Medicaid or Medicare liens.

It is advisable to postpone any mediation proceedings until this information has been secured and documented so as to allow the defense to complete its evaluation and arrive at the mediation with additional settlement authority. The production of such information also provides the plaintiff with ammunition to argue for a higher settlement of the claims presented.

On the defense side, it may be advisable not to proceed to an arbitration until all written discovery, depositions and expert review of the claims presented has been completed.

Plaintiffs allowing a case to proceed to mediation before such items have been accomplished may be faced with a defense asserting that there is no additional settlement authority to be discussed at the conference but that the case may be revisited after the completion of additional discovery efforts, such as an independent medical examination of the plaintiff. Plaintiffs can take away this argument by not agreeing to proceed to mediation until such discovery tasks are completed.

Written Submissions Are Important

When proceeding to a mediation, it is important to provide the mediator with a concise, but thorough, overview of the claims and defenses presented. A concise chronology of the facts of the underlying matter will inform the mediator as to the legal issues presented and provide an initial sense as to the value of the claims asserted.

Written submissions need not contain a recitation of every medical visit or diagnostic study completed. Rather, the highlights of the plaintiff's treatment following the accident will suffice.

On the defense side, a mediation memorandum can be utilized to raise and provide support for defenses on the liability issues, the causation question and the alleged extent of the injuries and damages presented. A defense mediation memorandum can also be utilized to emphasize the plaintiff's prior medical history so as to confirm that the case presented involves an aggravation of a pre-existing condition claim.

There is also no need to provide a mediator with voluminous written materials to review. Rather, litigators should emphasize the highlights of the case through documentary evidence. Rather than providing the mediator with complete medical records, it may be advisable to only submit the notes of the important office visits and notable reports of diagnostic films and studies.

Also, rather than submitting entire transcripts of depositions, the better practice may be to submit the cover page of the deposition transcript along with the pertinent pages that may have been cited in the mediation memorandum.

In addition to not overburdening the ­mediator with unnecessary information, presenting more concise documentation will also serve to keep the cost of the mediation down as the mediator will have less to review in preparation for the proceedings.

Oftentimes, the parties will submit their mediation memorandum and supporting exhibits to the arbitrator confidentially. The better practice is to disclose your materials to the opposing party in order that the opposing party may share the same with their client in order to let their client know of the weaknesses of the case presented and the strengths of the opponent's case.

Prepare Client and Claims Representative

Most plaintiffs and some claims representative are not familiar with how the mediation process works.

The better practice is to fully inform your client that, at a mediation, the mediator will likely have all of the parties in the room for an initial conference at which updates on the case presented can be provided. At the initial conference, both parties may also be invited to provide their overview of the case presented in order to let the opposing party know how the case is viewed by the opponent.

A plaintiff should be advised that he or she may be requested by the mediator at this initial conference to provide an update as to the client's condition and treatment. In this regard, a plaintiff who admits to improvement in his or her condition with the treatment provided to date adds to the credibility of that litigant. An injured party who contends that there has been no improvement whatsoever in his or her condition despite years of treatment may have their overall credibility called into question by the opponent.

If a plaintiff is reluctant to admit improvement, the plaintiff can add the proviso of that, while he or she may have improved somewhat over time, the injuries have not resolved and continue to limit the plaintiff in his or her everyday activities of daily living.

The client should be advised that, once the initial conference is completed, the mediator will likely put each party in a separate room and commence the negotiations by traveling back and forth between the rooms in a continuing effort to bring the parties closer together towards an amicable resolution of the claims presented.

The parties should also be made aware that there may be a reiteration of the same points over and over with different emphasis on different points at different times during the course of the mediation. This is all a part of the process of helping each side of the litigation to fully understand and appreciate the pros and cons of the claims and defenses presented.

The client and the claims representative should also be advised that the mediator has been selected to preside over this mediation because that person has experience in evaluating the claims presented in the jurisdiction in which the case is pending. It should be noted to the parties that a mediator typically does not provide the parties with his concrete evaluation of the case presented as the job of the mediator is not to evaluate the case. Rather, the mediator's function is to facilitate negotiations between the parties towards a settlement figure that each party may not be entirely happy with but are satisfied enough to agree to conclude the matter.

Listen to What the Mediator Is Saying

When engaging in a mediation, parties may get so wrapped up in their own position that they may fail to listen to the information being provided by the mediator after the mediator has met with the opposing side.

Listening to what the mediator is reporting from his last conference with the opposing party may send signals as to where the opposing party may be willing to proceed in its next step.   Listening to such information may also assist the party hearing the information in formulating their next step in the negotiation process.

Be Clear on What Can Be Disclosed

At various times during a mediation, a party may disclose information to the mediator that the party does not wish to be disclosed to the opposing counsel.

When disclosing information to the mediator that a party does not wish to be revealed to the other side, that party should be clear in its statement to the mediator that such information should be kept confidential. Mediators will keep this information confidential to keep your trust.

The provision of such confidential information may assist the mediator in understanding certain aspects of the case and why a party may be taking a particular position on a particular issue. The disclosure of such information to the mediator confidentially may, in the end, assist the mediator in massaging the other side closer toward a settlement figure.

Willingness to Negotiate

Obviously, the success of any mediation depends upon the willingness of each party to negotiate reasonably. In addition to emphasizing the strong points of one's case, the credibility of the parties will be enhanced by that party's concession with respect to the weak points of their case presented. An admission of the weak points of a case, with an associated explanation as to how that party plans to deal with those weak points at a potential trial, will provide the mediator with information to take to the other side in the continuing negotiations on the case presented.

When going into a mediation, clients and claims representatives should be made aware that the goal is not to "win" the case, but rather to settle the case and secure compensation or close a file. Shifting the parties' focus from winning to settling prior to going into the proceedings may make all the difference in the success of a mediation. •

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.  Attorney Cummins also provides Mediation services through Cummins Mediation Services.

 

Article by Judge Wallitsch on Medical Malpractice ADR Proceedings

Here is a LINK to an April 9, 2016 article in The Legal Intelligencer written by noted

Judge Thomas A. Wallitsch
ADR Options, Inc.
 

Mediator/Arbitrator Judge Thomas A. Wallitsch of ADR Options, Inc. providing tips for success at mediations and arbitrations in the medical malpractice setting. 

Please email me at dancummins@comcast.net if you are unable to access the article via the Link provided.

Third Circuit Affirms Summary Judgment for UIM Carrier Due to Lack of Evidence That Tortfeasor Was "Underinsured" (DECISION IS "NOT PRECEDENTIAL")

Tort Talkers may recall that I previously reported on the Pennsylvania Eastern District Federal Court decision of Gallagher v. Ohio Casualty Insurance Company HERE in which the federal trial court ruled that a Plaintiff was barred from pursuing a UIM claim after participating in a non-binding mediation that resulted in a settlement of the third party claim at an amount less than the third party tortfeasor's liability limits.

UPDATE

On January 29, 2015, the Third Circuit Court of Appeals issued its "Not Precedential" decision in the case with the citation being Gallagher v. Ohio Casualty Ins. Co., No. 14-2687 (3d Cir. Jan. 29, 2015 Hardiman, Scirica, and Barry, Circuit Judges)(Op. by Barry, Circuit Judge).

The Opinion notes that the decision in this case by the Third Circuit is not an opinion of the full court and, pursuant to I.O.P. 5.7, "does not constitute binding precedent."

The third party tortfeasor was covered by a liability policy with $100,000 in liability limits.

In the third party matter, the Plaintiff agreed to a "private, non-binding arbitration" at which the arbitrator evaluated the case as having a value of $41,715.  The Plaintiff initially rejected that assessment, but later agreed to settle the third party matter for that exact same amount.

Thereafter, when the Plaintiff filed suit against the UIM carrier, the UIM carrier eventually filed a motion for summary judgment arguing collateral estoppel. 

The trial court rejected the collateral estoppel argument but found that the UIM carrier was entitled to summary judgment given the lack of evidence produced by the Plaintiff to show that the tortfeasor defendant was underinsured.  In other words, the Plaintiff failed to present evidence that her damages met or exceeded the amount of the tortfeasor's liability limits.

The Third Circuit rejected the Plaintiff's assertion that the trial court concluded that the Plaintiff was not entitled to UIM benefits because she accepted a settlement less than the liability limits--the Third Circuit found this assertion to be a mischaracterization of the trial court's reasoning.

Rather, the Third Circuit agreed with the trial court's actual finding and reasoning that the Plaintiff had failed to produce any evidence that the third party tortfeasor was "underinsured" so as to support the Plaintiff's effort to pursue UIM benefits in this matter after having settled with the tortfeasor at an amount substantially less than the available liability limits.

The court noted that the Plaintiff's allegations of "serious" or "permanent" injuries as well as economic damages, without more, only amounted to "unsupported allegations in the pleadings" which, as a matter of law, were insufficient to establish any genuine issue of material fact.  Accordingly, the UIM carrier's summary judgment motion was granted.


It is reiterated that the Third Circuit marked its decision as "Not Precedential."  Anyone wishing to review a copy of the Third Circuit's Opinion may contact me at dancummins@comcast.net.

The trial court Opinion in Gallagher may be viewed at this LINK.  The related Court Order can be viewed HERE.


To review Tort Talk blog posts on cases that do apply the application of the Collateral Estoppel Doctrine in the context of Post-Koken third party liability/UIM auto accident cases, click this LINK.


Source of image: www.commons.wikimedia.org

Updates, Trends and Thoughts Regarding Pennsylvania Civil Litigation Law by

Northeastern Pennsylvania Insurance Defense Attorney, Daniel E. Cummins

ADR TIPS FROM NOTED ARBITRATORS/MEDIATORS

TIPS TO IMPROVE CHANCES FOR SUCCESS AT ARBITRATION/MEDIATION PROCEEDINGS

An interview conducted by

Daniel E. Cummins, Esquire


With the ever-present backlog of trial calendars in the trial courts across Pennsylvania, more and more litigants are turning to alternative dispute resolution in the form of non-binding mediation or binding arbitration to bring their cases to a resolution. Of course, the uncertainty attendant with jury trials has also always been a great motivator for parties to move their cases into a mediation or a binding arbitration with confidential high/low parameters in place.

There is no better way to learn about what works and what doesn’t work during ADR proceedings than by asking questions of mediators/arbitrators that have presided over numerous ADR proceedings.

The following questions, seeking tips on how parties may improve their chances for success in ADR proceedings, were submitted for a response to noted attorney mediators/arbitrators, Richard Fine, James A. Gibbons, Tom Helbig, and Lucille Marsh.

1. WHAT TIPS WOULD YOU OFFER IN TERMS OF IMPROVING THE WRITTEN MEMORANDUM SUBMITTED FOR AN ARBITRATION/MEDIATION?

Richard Fine:

The written memorandum should be a simple, convincing presentation of the party's position; it should anticipate the opposing party's arguments on liability (in arbitrations) and damages, and should set forth clear responses to those arguments. Concentrate on the points that will put pressure on the opposing party.

If relying on case law, it should be summarized as well, but copies of relevant decisions should be provided with the memorandum. Don't expect your arbitrator or mediator to go to the books to find the cases you cite.

A brief description of any settlement negotiations that occurred between the parties prior to mediation should be included.

If setting forth a settlement figure, or range of figures, be sure to give the basis for arriving at that figure. Explain how you calculated your values. Include proof of any liens that must be satisfied, etc.

Consideration should be given to whether the memorandum is to be shared with the opposing party, or whether some or all of it should be for the mediator's eyes only.


Jim Gibbons:

Try to not parrot the medical records, especially if you are submitting the records too. Pay attention to your strengths, but don't ignore your weaknesses. Outline your settlement position and provide a rationale for your figures.

Tom Helbig:

For Arbitration – Make certain to address all the relevant facts and legal principles that support your position. My preference is for counsel to err on the side of providing too much information in the Memorandum. Remember the Arbitrator will generally review the written submissions both before and after the Hearing, and a well written Memorandum is another opportunity to persuade the Arbitrator.

For Mediation – An exhaustive Memorandum is not necessary since there will be more discussion of the case facts and issues during the Conference. Since settlement is the ultimate goal, however, it is important to provide to the Mediator your settlement position and outline the specific reasons supporting your present position.


Lucille Marsh:

A concise Mediation Memorandum setting forth the essential facts of the case, damages and any issues, pro or con, to liability or damages is very helpful. Eliminate puffing and the superfluous. If case is complex, a chronology/summary of events, i.e. medical treatment, is useful to the Mediator as a negotiating tool. Give the Mediator information which can be used to leverage with the other side. In Arbitration, where counsel must convince the Arbitrator of the merits, including all relevant facts, case law or argument supporting a claim or defense is highly effective in my opinion. Avoid arguing a position not supportable by the facts and law. Remember - a Mediator only facilitates a settlement whereas an Arbitrator must be influenced to decide the case in a party's favor.



2. WHAT TIPS WOULD YOU OFFER IN TERMS OF THE EXHIBITS TO BE SUBMITTED FOR AN ARBITRATION/MEDIATION?


Richard Fine:

The less paper you ask the mediator to look through, the better.

If you have already had an expert review medical records, or someone in your office has prepared a digest, summary or chronological chart of treatment, use that as your exhibit. If you feel that certain medical records are important for the arbitrator or mediator to see, tab or highlight the relevant portion.

If deposition testimony is being submitted, I prefer to have the entire transcript, but again relevant portions should be tabbed and highlighted for quick access.

Photographs should be clear and labeled on the back, preferably 5 X 7 or larger. Include the date each was taken. Don't present 5 or 6 when 1 or 2 will do the job.

At the proceeding itself, consider a well-thought-out Power Point presentation for your exhibits.


Jim Gibbons:

Highlighting helps attract attention; I have no problem with it. Don't submit unnecessary medical records. Submit the records that speak to the injuries at issue. If you're going to submit depo testimony, submit the entire transcript. I'd suggest in that instance, communication with
opposing counsel beforehand can avoid duplicate submissions.


Tom Helbig:

Make sure to reach an agreement with opposing counsel on the proposed exhibits before submitting them to the Arbitrator or Mediator. A recurring problem has been the submission of updated medical records and reports without providing them to opposing counsel, or documents obtaining objectionable hearsay statements, such as police reports, without a stipulation as to admission from opposing counsel. Submission of all medical records is unnecessary (e. g. every PT or primary care physician’s note); however, a complete medical chronology is helpful, especially for a comparison of an individual’s pre and post-accident medical condition.


Lucille Marsh:

In Mediation, since I do not need to be convinced of the merits of any party's position, only relevant and pertinent medical records, photos and portions of depositions need be supplied. Do not overwhelm the Mediator with paperwork. A short and concise summary of medical treatment is in my opinion far more effective than a stack of medical records. On the defense side I generally like to have a copy of any IME reports which I can compare to the Plaintiff's concise summary. On the other hand, in arbitration counsel needs to convince the fact finder that his/her position is the more correct one and all supportive, relevant medical reports, documents, photographs or statements should be utilized. In complex or catastrophic cases, a day in the life video or other visual aid illustrating how the accident occurred or product was defective is very effective.



3. IN ARBITRATIONS, WHAT IS YOUR POSITION ON THE VALUE OF CLOSING ARGUMENTS BY COUNSEL?


Richard Fine:

I welcome closing arguments and would always give parties the option, but never make them mandatory. Attorneys should remember their audience; the arbitrator does not need or want courtroom dramatics-- don't "hype" your case.

Be careful not to argue points that are clearly not supported by the evidence; sum up your case as succinctly as possible,


Jim Gibbons:

I welcome closing arguments in arbitrations, but counsel need to remember that the panel is not composed of lay people. Less theatrics have a bigger impact. I do not see any need for openings or closings in mediations.


Tom Helbig:

Absolute necessity and rarely, if ever, should be waived by counsel. Need not be lengthy or theatrical; rather I prefer counsel to elicit a concise summary of the credible evidence supporting his or her theory of the case and why the Arbitrator should decide in their favor on a particular issue (e. g. liability, damages, coverage).


Lucille Marsh:

Counsel should always be given the opportunity to make a closing argument. However, depending upon the complexity of the matter, a closing argument may or may not be of any value. If there is a legal issue, a closing argument should reference case law and facts which support the party’s position. Address any evidence that came up during the hearing that was not addressed or anticipated in the submitted Memorandum. Avoid arguing anything unsupported by the evidence as that will only adversely impact your credibility. Avoid arguing the obvious. Highlight the evidence that supports your position and/or nullifies your opponent’s position.



4. ANY TIPS ON HOW COUNSEL MAY BETTER PREPARE THEIR CLIENT AND/OR CLAIMS REPRESENTATIVE FOR PARTICIPATION IN ADR PROCEEDINGS?


Richard Fine:

Plaintiff's counsel should make certain that the client understands the purpose of the proceeding. Unrealistic expectations can derail a mediation. The client should be fully briefed ahead of time as to the nature and significance of any subrogation liens, Medicare or Welfare liens, and costs that need to be reimbursed from the proceeds of an award or settlement.

Claims representatives must understand that without full authority to settle, a mediation cannot succeed. Ideally, the individual with authority should be present in person. This helps to streamline the negotiating process, avoiding the need for repeated calls "to the company". Furthermore, the opportunity to meet the Plaintiff will allow the claims rep to assess how a jury might react to the individual.

If there is more than one defendant, discussions should be held with the claims representative in advance of the ADR proceeding as to how a settlement package might be put together---by what percentage or other method the ultimate pay-out should be split between them.


Jim Gibbons:

In mediations, counsel need to emphasize to their clients/adjusters that the tone is one of compromise. Parties must understand that there is a distinct possibility that what they want to pay/receive may not be what they will end up paying/receiving. Parties need to understand that the numbers at the beginning of the process will not be the numbers at the end of the process. Counsel also need to counsel patience. It is a process, and insisting on getting to the end at the beginning is counter-productive. It's not going to be over in an hour or two.


Tom Helbig:

For Mediation, it is important for the parties and claims representatives to clearly understand the Mediation process and its ultimate purpose, i. e., there must be a sincere desire to resolve the claim and not necessarily prove the other party is wrong. Must understand the Mediator is a facilitator and not a fact-finder; thus, if the parties and/or claims representatives are unwilling to fully discuss the case issues and potentially re-examine their positions, then Mediation should probably not be pursued.


Lucille Marsh:

Impress upon your client/representative the importance of the ADR. Point out the pros and cons of your case so that the client/representative enters the ADR fully aware of the uncertainties. Have your client assess both best case scenario and worst case scenario in discussing settlement range and settlement needs. Discuss in advance a realistic range of settlement you’re willing to consider. Be flexible. Make sure that your client/representative has the desire and willingness to participate in ADR - otherwise you are wasting your time and money.


5. DO YOU HAVE ANY MISCELLANEOUS TIPS FOR COUNSEL TO IMPROVE THEIR CHANCE FOR SUCCESS AT AN ADR PROCEEDING?


Richard Fine:

Simplify and organize!

Know your facts, know the applicable law, and whenever possible, know your mediator or arbitrator. Take his or her style and personality into account when presenting your case.

Remember the Boy Scout motto, and be prepared.


Jim Gibbons:

Obviously, having a claim rep in the room is ideal. Second best is having them available by phone. Come with authority. If you've had preliminary discussions prior to the mediation, don't raise the demand/lower the offer at the mediation.

Defense counsel: try and bring a proposed release with you to speed up the process of payment.

Plaintiffs' counsel: have a good handle on your costs to date; your client will likely ask how much goes into his/her pocket at the mediation. That can be a big help. If there is a lien, initiate contact with the lienholder prior to the mediation and try to get a conversation going about compromising the lien.


Tom Helbig:

PLAINTIFF - Don’t necessarily rely upon your client as the only witness to be called at the hearing. It may be helpful to enhance a pain and suffering or wage loss claim with the testimony of family members, friends, and/or co-workers. A relatively modest expenditure of time and money to present these corroborating witnesses may be beneficial.

DEFENDANT -Important hearing/conference items for the arbitrator/mediator’s consideration may include a medical chronology and all relevant pre and post-accident records; vehicle damage photographs; and subsequent accident/incident reports.


Lucille Marsh:

In Mediation, be candid with the Mediator when in private caucus. Confidentiality and trust are critical for any successful Mediation. Posturing in front of the Mediator (and your client) serves no purpose in advancing your case. A good Mediator will make it very clear that any strategy or confidential information you provide will never be revealed to your opponent and realistically discussing weaknesses as well as strengths of your case only enhances your credibility. Be fully prepared to quantify your damages with back up, i.e. medical bills; wage loss; economic analysis of lost future earnings or earnings capacity, etc.



BIOGRAPHIES


Richard Fine is currently a mediator and arbitrator associated with ADR Options, Inc.; Resolute Systems, Inc.; Settlement Systems, Inc.; and The Peacemakers. Mr. Fine, a cum laude graduate of the University of Pennsylvania who attended Washington University School of Medicine and received his juris doctor from Dickinson School of Law, began his career clerking for Judge Joseph Sloane of Philadelphia County. He then moved into private practice in Pennsylvania state courts and the U.S. District Court for the Middle District of Pennsylvania, as part of the firm now known as Fine, Wyatt & Carey, where he is presently the senior and managing partner. He has also been admitted to practice before the U.S. Supreme Court. Mr. Fine was appointed by Chief Judge Sylvia H. Rambo of the U.S. District Court for the Middle District of PA to serve as a mediator under the Civil Justice Reform Act of 1990. He was also appointed by President Judge Chester T. Harhut to serve as a mediator for the Court of Common Pleas of Lackawanna County. A former board member and past president of the Lackawanna County Bar Association, Mr. Fine is also a member of the Wayne County Bar Association, the Pennsylvania Bar Association, the American Bar Association, the Association of Trial Lawyers of America, the Pennsylvania Defense Institute, the Pennsylvania Association for Justice, and the International Association of Defense Counsel. Mr. Fine has served in his community as a board member of the Jewish Community Center, the Jewish Federation, the Community Medical Center, Temple Hesed, and Allied Services; a trustee of Webster Towers; and a member of the Mellon Bank advisory board. He currently serves as a hearing committee member with the Disciplinary Board of the Supreme Court of Pennsylvania and has lectured for the Lackawanna Bar Association, the Pennsylvania Bar Institute, and the Pennsylvania Association for Justice. Attorney Fine may be contacted at finerg@comcast.net.


Jim Gibbons provides mediation services in commercial, real estate, civil rights, personal injury and medical negligence cases throughout northeastern and central
Pennsylvania. He is certified by the U.S. District Court as a mediator and is
regularly appointed there and in the local county courts as a mediator and
arbitrator. He has spent his entire career in litigation in the state and
federal courts. Attorney Gibbons may be contacted at gibbonslawfirm@epix.net.


Thomas Helbig received his BA from the University of Scranton in 1977 and his JD from Seton Hall University School of Law in 1981. Following graduation, he served as a law clerk to US District Judge Richard P. Conaboy in the US Middle District of Pennsylvania for two years. Prior to beginning his solo practice in 2008, he was a partner in the Scranton law firm of Scanlon, Howley & Doherty for seventeen (17) years and, previous to that, in the Wilkes-Barre law firm of Hourigan, Kluger, & Quinn P.C. for nine (9) years. In addition to his private litigation practice, Mr. Helbig focuses his present practice on mediation and arbitration work. He was recently appointed to the position of Settlement Master in the Court of Common Pleas of Lackawanna County under newly revised Local Rule 212. He previously served as Interim Discovery Master in Lackawanna County, and also as a court-appointed Special Trial Master presiding over jury and non-jury trials. Over the last twenty-five (25) years, he has conducted numerous mediations and arbitrations in third party and first party civil cases.


Lucille Marsh is a partner in the firm of Kreder Brooks Hailstone LLP. She focuses her practice on insurance defense, civil litigation, mediation and family law. She is a graduate of Chatham College and Dickinson School of Law. She has been a Certified Mediator in the United States District Court for the Middle District of Pennsylvania since 1996 and provides private mediation/arbitration services. She is an Adjunct Instructor at Keystone College. Attorney Marsh is a member of the Pennsylvania Bar Association, Lackawanna Bar Association and the Pennsylvania Defense Institute. She has served on various PBA Task Forces and Committees. She served as a member of the Third Circuit Lawyers’ Advisory Committee and Middle District CJRA Advisory Committee. Attorney Marsh may be contacted at Lmarsh@kbh-law.com.