TreatiseAnswer Book

Financial Services Mediation Answer Book (2017 Edition)

 by Layn R Phillips, Pierre M Gentin, Jill R Sperber, Lindsay R Goldstein
 
 Copyright: 2017

 Product Details >> 

Product Details

  • ISBN Number: 9781402428968
  • Page Count: 350
  • Number of Volumes: 1
  •  

Financial Services Mediation Answer Book provides detailed guidance, in question-and-answer format, on all aspects of mediating disputes involving financial services. More than 40 attorneys contributed to this book, reflecting a wide range of experiences, observations and perspectives, on both the plaintiff and defense sides. The book includes discussion of the decision to mediate, the roles of the participants to a mediation, choosing a mediator and venue, writing mediation submissions, conducting the mediation, engaging in settlement negotiations, and what to do when negotiations fail. In addition, the book covers how the availability of insurance affects the mediation process, and how to address issues that are specific to mediations involving auditors. The book also includes a chapter on recurring legal issues that can arise when mediating financial services disputes, and concludes with a series of Q&As by several highly experienced mediators.
  Table of Contents
  Preface
Chapter 1: Laying the Groundwork for Mediation
  • : Determining When to Mediate1-3
  • Q 1.1 : At what stage in a dispute is mediation most effective?1-3
    • : Readiness of Parties1-4
    • Q 1.1.1 : How do you know if the parties are ready to mediate?1-4
    • : Early in the Case1-4
    • Q 1.1.2 : Does it make sense to mediate early in a case?1-4
    • : Late in the Case1-6
    • Q 1.1.3 : Is it ever too late in a case to mediate?1-6
    • : After Discovery1-7
    • Q 1.1.4 : What are some of the benefits of mediating after discovery?1-7
    • : Impact of Developments in the Case1-7
    • Q 1.1.5 : What developments in a case impact counsel’s determination of when to mediate?1-7
    • : Developments Outside the Litigation1-8
    • Q 1.1.6 : What developments that occur outside the context of the litigation can impact counsel’s determination of when to mediate?1-8
  • : Mediation “Red Flags”1-9
  • Q 1.2 : What are the “red flags” that a mediation could be counter-productive?1-9
  • : Other Preconditions for a Successful Mediation1-10
  • Q 1.3 : Are there structural/legal issues that have to be resolved before a mediation can be successful?1-10
  • : Special Considerations for Financial Services Mediations1-11
  • Q 1.4 : Are there special considerations for determining when to mediate financial services disputes?1-11
  • : Negotiating before Engaging a Mediator1-11
  • Q 1.5 : Should the parties attempt to negotiate without the aid of a mediator before engaging a mediator?1-11
  • : Reasons Not to Mediate1-12
  • Q 1.6 : What are some reasons not to engage in mediation?1-12
  • : Goals of Mediation1-12
  • Q 1.7 : Is settlement always the goal of mediation?1-12
  • : Multiple Rounds of Mediation1-13
  • Q 1.8 : If the parties fail to reach a settlement during mediation, is it worthwhile to try conducting a mediation later in the case?1-13
  • : Special Circumstances in Considering the Appropriateness of Mediation1-14
  • Q 1.9 : How is the decision to mediate impacted in a multi-defendant or multi-plaintiff case?1-14
  • Q 1.10 : What are the considerations when mediating cases involving non-U.S. clients?1-15
  • : Preparing the Client for a Successful Mediation1-16
  • Q 1.11 : How can counsel overcome resistance to mediation by a client?1-16
  • Q 1.12 : How can counsel explain mediation to a client who has never mediated?1-17
  • Q 1.13 : How can counsel prepare clients for a successful mediation?1-18
  • : Initial Mediation Communications1-19
  • Q 1.14 : Should the parties exchange mediation statements?1-19
    • Q 1.14.1 : Should the parties make presentations to each other (whether merits, damages or other topics) or communicate through the mediator?1-20
  • : Confidentiality1-21
  • Q 1.15 : Should the parties be required to keep the mediation sessions confidential?1-21
Chapter 2: The Decision to Mediate: Choosing the Mediator, Venue, and Process
  • : Choosing the Right Mediator2-3
  • Q 2.1 : What qualities should be sought in selecting a mediator? When is it important to select a mediator with expertise in a particular area of law or subject matter, who is familiar with the forum, or who has judicial expertise?2-3
    • : Impartiality2-4
    • Q 2.1.1 : What should be considered in evaluating the impartiality of a potential mediator?2-4
    • : Mediation Style2-4
    • Q 2.1.2 : What are the different mediation styles?2-4
    • Q 2.1.3 : How can parties evaluate which mediation style is right for the dispute?2-6
    • : Mediator’s Background, Experience, and Expertise2-7
    • Q 2.1.4 : What professional qualifications and experience should a mediator have?2-7
    • : Mediator’s Process Skills and Intangible Attributes2-8
    • Q 2.1.5 : What process skills should a mediator possess?2-8
    • : Local and Jurisdiction-Specific Matters2-9
    • Q 2.1.6 : What jurisdiction- and case-specific issues must be kept in mind in choosing a mediator?2-9
  • : Differences between the Evaluative and Facilitative Style of Mediators2-10
  • Q 2.2 : What are the strengths and weakness of each style of mediation?2-10
    • : Advantages of Evaluative Mediators2-10
    • Q 2.2.1 : What are the advantages of using an evaluative mediator?2-10
    • : Disadvantages of Evaluative Mediators2-11
    • Q 2.2.2 : What are the disadvantages of using an evaluative mediator?2-11
    • : Advantages of Facilitative Mediators2-12
    • Q 2.2.3 : What are the advantages of using a facilitative mediator?2-12
    • : Disadvantages of Facilitative Mediators2-13
    • Q 2.2.4 : What are the disadvantages of using a facilitative mediator?2-13
  • : Mediators with “Stature”2-14
  • Q 2.3 : When is it important to select a mediator with “stature”?2-14
    • : Impact of Insurance Policy Limits2-15
    • Q 2.3.1 : What impact should the existence of insurance policy limits have on the selection of a mediator?2-15
  • : Agreeing to the Other Side’s Proposed Mediator2-16
  • Q 2.4 : When should counsel agree to the mediator proposed by the other side?2-16
  • : Location of the Mediation2-17
  • Q 2.5 : What are the pros and cons of the mediation being conducted at counsel’s office?2-17
  • : Length of the Mediation2-19
  • Q 2.6 : Should the parties agree up front as to how many sessions the mediation should take and whether the sessions should be closed?2-19
  • : Role of Insurance2-20
  • Q 2.7 : What role does insurance play?2-20
    • : Pre-Mediation Consideration of the Role of Insurance2-21
    • Q 2.7.1 : What should the plaintiff know about the defendant’s insurance coverage before the mediation begins?2-21
    • : The “Within Policy Limits Demand” Card2-22
    • Q 2.7.2 : What does a “demand for settlement within policy limits” mean?2-22
  • : Settlements in Comparable Cases2-22
  • Q 2.8 : How should the parties evaluate and use prior settlements in “comparable” cases?2-22
  • : Exchange Mediation Statements or Confidential Submissions to the Mediator2-24
  • Q 2.9 : Should mediation submissions be confidential or exchanged by the parties?2-24
    • : Exchanging Submissions with Adversaries2-24
    • Q 2.9.1 : What are the advantages to the parties exchanging their mediation statements?2-24
    • : Confidential Submissions2-25
    • Q 2.9.2 : What are the advantages to keeping the submissions confidential to the mediator?2-25
  • : Alternatives to Mediation Statements2-26
  • Q 2.10 : When might mediation statements not be necessary?2-26
  • : Opening Statements2-26
  • Q 2.11 : Should there be opening statements?2-26
  • : Steps in the Mediation Process2-28
  • Q 2.12 : How does a mediation begin?2-28
    • : Evaluating the Changing Positions of the Parties2-28
    • Q 2.12.1 : What techniques are used to evaluate the changes in offers and counter-offers?2-28
  • : Binding Mediation2-30
  • Q 2.13 : What are the pros and cons of binding mediation?2-30
  • : Addressing Issues of Corporate Governance Relief2-31
  • Q 2.14 : Can mediations address “corporate governance” relief issues?2-31
Chapter 3: The Players in a Mediation: Parties, Counsel, and Others
  • : Parties and Principals3-2
  • Q 3.1 : What roles do the principals or parties play in the mediation?3-2
    • Q 3.1.1 : Should the principals attend the mediation sessions?3-2
    • Q 3.1.2 : What advantages do the parties’ principals gain by attending the mediation sessions?3-3
  • : Counsel3-3
  • Q 3.2 : What is counsel’s role in the mediation?3-3
  • : Decision-Makers3-4
  • Q 3.3 : Who are other key decision-makers in the case?3-4
  • : Insurers3-5
  • Q 3.4 : In particular, what must be known about relevant insurance coverage?3-5
    • Q 3.4.1 : What is the role of “coverage counsel”?3-6
  • : Other Defense-Side Participants3-7
  • Q 3.5 : What other participants might appear on the defense side?3-7
  • : Other Plaintiff-Side Participants3-7
  • Q 3.6 : What other participants might appear on the plaintiff side?3-7
  • : Settlement Counsel3-8
  • Q 3.7 : What type of mediations appropriately warrant separate settlement counsel?3-8
  • : Expert Witnesses3-8
  • Q 3.8 : Under what circumstances does it make sense to have experts attend, make presentations, or be available for questioning by the mediator?3-8
    • Q 3.8.1 : When is it helpful to get damages experts to agree on key variables?3-9
    • Q 3.8.2 : What should be considered in deciding the extent to which expert testimony should be shared during a mediation?3-9
    • Q 3.8.3 : Should different experts from those being used to testify at the underlying trial be used for mediation-only purposes?3-10
    • Q 3.8.4 : When should a neutral expert be used?3-11
  • : Additional Factors Affecting the Nature of Participants’ Involvement3-11
  • Q 3.9 : Who needs to have authority to authorize a settlement, when should such authority be available, and what kind of authority is needed?3-11
  • Q 3.10 : How do personality issues affect the mediation process?3-12
    • Q 3.10.1 : How can counsel best handle difficult counsel and/or difficult situations with principals?3-13
  • Q 3.11 : How should principals’ and other stakeholders’ expectations be set?3-14
  • Q 3.12 : Under what circumstances should the mediator play a facilitative or an evaluative role?3-15
    • Q 3.12.1 : Are two mediators ever advisable?3-15
  • Q 3.13 : Who should be invited to be part of the mediation?3-15
Chapter 4: Mediation Submissions by Plaintiffs and Defendants
  • : Establishing Ground Rules4-3
  • : Plaintiff’s Perspective4-3
  • Q 4.1 : What bottom-line knowledge should plaintiff’s counsel have from the plaintiff regarding willingness to settle?4-3
  • Q 4.2 : What scope of confidentiality should be afforded?4-3
  • Q 4.3 : What information should be sought from the defendant before the mediation begins?4-4
  • Q 4.4 : What are some other important pre-mediation information requests?4-4
  • Q 4.5 : Which decision-makers should attend the mediation?4-5
  • Q 4.6 : When are pre-mediation caucuses helpful?4-6
  • : Defendants’ Perspective4-7
  • Q 4.7 : What ground rules are important to confidentiality?4-7
  • Q 4.8 : What agreements should be in place regarding the mediation statement?4-7
  • Q 4.9 : Should the mediation statement be shared or submitted only to the mediator?4-8
  • Q 4.10 : How should submission of evidence with the mediation statement be handled?4-8
  • : Monetary Preconditions to Mediation4-9
  • : Plaintiff’s Perspective4-9
  • Q 4.11 : Should plaintiff impose monetary preconditions before settlement negotiations or mediation can begin?4-9
  • : Defendants’ Perspective4-10
  • Q 4.12 : Should defendants impose monetary preconditions before settlement negotiations or mediation can begin?4-10
  • : Term Sheets4-11
  • Q 4.13 : Should the parties create a term sheet in advance of the mediation session?4-11
  • : Plaintiff’s Perspective4-11
  • : Defendants’ Perspective4-12
  • : Writing the Mediation Statement4-13
  • Q 4.14 : What substance should be in a mediation statement?4-13
    • : Plaintiff’s Perspective4-13
    • Q 4.14.1 : In general, what should a mediation statement seek to accomplish?4-13
    • Q 4.14.2 : How should the key legal issues be discussed?4-14
    • Q 4.14.3 : What facts should be included?4-14
    • Q 4.14.4 : How should key evidentiary issues be handled?4-15
    • Q 4.14.5 : How should the demand be handled in the mediation statement?4-15
  • : Defendants’ Perspective4-16
  • Q 4.15 : In general, what should the mediation statement attempt to accomplish?4-16
    • Q 4.15.1 : What information should be in the mediation statement?4-17
    • Q 4.15.2 : How should the key legal issues be addressed by the defendant?4-18
    • Q 4.15.3 : What facts should be highlighted in the mediation statement?4-18
    • Q 4.15.4 : How should evidentiary issues be handled?4-19
    • Q 4.15.5 : How should the client’s requested outcome be described?4-19
  • : Ex Parte or Shared Mediation Submissions4-19
  • Q 4.16 : When should ex parte versus shared mediation submissions be used?4-19
  • : Plaintiff’s Perspective4-20
  • : Defendants’ Perspective4-20
  • : Other Materials to Be Submitted4-22
  • Q 4.17 : What other materials are important to submit?4-22
  • : Plaintiff’s Perspective4-22
  • : Defendants’ Perspective4-22
  • : Level of Candor with Parties and Mediator4-23
  • Q 4.18 : What level of candor is best to use with the other side and with the mediator?4-23
  • : Plaintiff’s Perspective4-23
  • : Defendants’ Perspective4-24
Chapter 5: Preparing for and Participating in the Mediation Session
  • : Review of Materials5-2
  • Q 5.1 : What case-related materials should you review?5-2
    • Q 5.1.1 : What information about the opposing parties should counsel review?5-3
    • Q 5.1.2 : What information about the pending action should be clear in a party’s mind?5-4
  • : Discussions with the Client5-4
  • Q 5.2 : What should be discussed with the client before the start of the mediation session?5-4
  • : Discussions with Co-Counsel5-6
  • Q 5.3 : How should co-counsel work with each other?5-6
  • : Discussions with the Mediator5-6
  • Q 5.4 : What should be known about the mediator’s plans for the mediation process?5-6
  • : Understanding the Client’s Goals5-7
  • Q 5.5 : Why is it important to understand the client’s goals for the mediation?5-7
  • : Opening Arguments5-8
  • Q 5.6 : How are opening arguments handled in different kinds of mediations?5-8
  • : Initial Joint Session5-9
  • Q 5.7 : What happens at the initial joint session of parties and mediator?5-9
  • : Initial Private Session5-10
  • Q 5.8 : What happens at the initial private session with each party?5-10
  • : Reaching the Mediator Outside of Sessions5-11
  • Q 5.9 : How to reach the mediator outside of sessions?5-11
    • : Mediator Sessions with Attorneys Only5-11
    • Q 5.9.1 : When do mediators meet with attorneys only?5-11
    • : Mediator Sessions with Clients Only5-12
    • Q 5.9.2 : When do mediators meet with clients only?5-12
  • : Multiple Parties5-12
  • Q 5.10 : What issues arise when there are multiple parties to the mediation?5-12
  • : Negotiation Techniques5-14
  • Q 5.11 : When only money is involved, what is a common approach to moving to a settlement?5-14
  • Q 5.12 : What approaches are often employed when the resolution of the matter involves relief other than (or in addition to) money?5-15
  • : Interaction with the Mediator5-15
  • Q 5.13 : What are some considerations in interacting with the mediator?5-15
    • Q 5.13.1 : Can the mediator be asked about the other side’s position?5-15
    • Q 5.13.2 : When is it appropriate to replace the current mediator?5-16
  • : “Take It or Leave It” Proposals5-16
  • Q 5.14 : When are “take it or leave it” proposals likely to be successful?5-16
Chapter 6: Getting Underway and Closing the Deal
  • : Success Factors6-2
  • Q 6.1 : What are the factors that impact whether a mediation will be successful?6-2
  • : Plaintiffs and Defendants6-2
  • : Pre-Mediation Steps6-5
  • Q 6.2 : What steps should be taken prior to the mediation to improve the possibilities of success?6-5
  • : Plaintiffs6-5
  • : Defendants6-6
  • : Settlement Demands6-7
  • Q 6.3 : Are settlement demands by plaintiffs prior to mediation helpful to the parties?6-7
  • : Plaintiffs6-7
  • : Defendants6-8
  • : Joint Sessions6-8
  • Q 6.4 : Should there be a joint gathering with plaintiffs’ and defendants’ presentations at the outset of the mediation?6-8
  • : Plaintiffs6-8
  • : Defendants6-9
  • : First Mediation Session6-10
  • Q 6.5 : What should be done during the first session with the mediator to put the client in the best negotiating position?6-10
  • : Plaintiffs6-10
  • : Defendants6-11
  • : Negotiation Techniques and Strategies6-13
  • Q 6.6 : What techniques/strategies are used to move the negotiations in the client’s favor?6-13
  • : Plaintiffs6-13
  • : Defendants6-16
  • Q 6.7 : What are winning strategies for breaking stalemates and reaching an agreement?6-19
  • : Plaintiffs6-19
  • : Defendants6-21
  • Q 6.8 : When does it make sense to walk away?6-23
  • : Plaintiffs6-23
  • : Defendants6-23
  • : After the Agreement6-25
  • Q 6.9 : What steps should the parties take once they have reached an agreement in a mediation?6-25
  • : Plaintiffs6-25
  • : Defendants6-25
Chapter 7: Following Up If Initial Negotiations Fail
  • : Mediations Are a Multi-Step Process7-3
  • Q 7.1 : Recognizing that many mediations do not settle during the first session, how should counsel approach follow-up sessions with the mediator?7-3
  • : Plaintiffs’ Counsel7-3
  • : Defense Counsel7-3
  • : Initiating a Follow-Up Session7-4
  • Q 7.2 : Where the mediation has broken down in the initial session, who should initiate a follow-up session?7-4
  • : Defense Counsel7-4
  • : Plaintiffs’ Counsel7-5
  • : Mediator Follow-Up Techniques7-6
  • Q 7.3 : What different mediator follow-up techniques are most effective?7-6
  • : Defense Counsel7-6
  • : Plaintiffs’ Counsel7-8
  • : Direct Mediator-Client Communication7-9
  • Q 7.4 : Is it a good follow-up technique for the mediator to talk directly with the client without counsel’s participation?7-9
  • : Defense Counsel7-9
  • : Plaintiffs’ Counsel7-9
  • : Follow-Up Sessions in Multi-Party Disputes7-10
  • Q 7.5 : Are there follow-up techniques that are particularly helpful in multi-party disputes?7-10
  • : Defense Counsel7-10
  • : Plaintiffs’ Counsel7-11
  • : Other Process-Oriented Steps During Follow-Up7-11
  • Q 7.6 : What other process-oriented steps can help further the mediation follow-up process?7-11
  • : Defense Counsel7-11
  • : Plaintiffs’ Counsel7-13
  • : Follow-Up After an Unsuccessful Double-Blind Mediator’s Proposal7-14
  • Q 7.7 : Are there particular issues and techniques needed after an unsuccessful double-blind mediator’s proposal?7-14
  • : Defense Counsel7-14
  • : Plaintiffs’ Counsel7-14
  • : When the Insurer Won’t Settle7-15
  • Q 7.8 : What techniques are effective when an insurer has failed or refused to fund the settlement?7-15
  • : Plaintiffs’ Counsel7-15
  • : Defense Counsel7-15
  • : Settlement Discussions Outside the Presence of the Mediator7-18
  • Q 7.9 : How much follow-up settlement dialog should counsel continue to have with opposing counsel without the mediator present after the initial mediation failed?7-18
  • : Plaintiffs’ Counsel7-18
  • : Defense Counsel7-18
  • : The Most Important Aspect of Follow-Up Sessions7-19
  • Q 7.10 : What is the most important aspect of follow-up negotiations after a failed mediation?7-19
  • : Defense Counsel7-19
  • : Plaintiffs’ Counsel7-19
Chapter 8: Mediation Issues Relating to Auditors
  • : Obstacles, Challenges, and Benefits of Suing Accounting Firms8-3
  • Q 8.1 : What are the obstacles, challenges, and benefits associated with prosecuting an accounting firm in complex securities and other professional liability cases? To what extent do these factors vary depending on the nature of the plaintiff, i.e., a class, a trustee, or a large institution?8-3
  • : Plaintiff’s Counsel Perspective8-3
  • : Auditor’s Counsel Perspective8-6
  • : Accounting Firm Defendants Participating with Other Defendants8-8
  • Q 8.2 : What are the pros and cons of mediating a financial services case with the accounting firm defendant participating with all other defendants, as opposed to mediating separately with the accounting firm?8-8
  • : Plaintiff’s Counsel Perspective8-8
  • : Auditor’s Counsel Perspective8-9
  • : “Last Man Standing” Approach8-10
  • Q 8.3 : With accounting firms often deploying a “last man standing” strategy, what are the strategic advantages and disadvantages to this approach? Under what circumstances can an accounting firm, by not settling with the defendants, pose a credible threat to an earlier underlying settlement?8-10
  • : Plaintiff’s Counsel Perspective8-10
  • : Auditor’s Counsel Perspective8-11
  • : Comparables and Precedents8-13
  • Q 8.4 : How is the discussion of comparable settlements and precedents, which seems to take on greater emphasis in mediations involving accounting firms, best handled? Why is there such a focus on the importance of precedent?8-13
  • : Plaintiff’s Counsel Perspective8-13
  • : Auditor’s Counsel Perspective8-14
  • : Role of In-House Counsel in Mediations Involving Accounting Firms8-15
  • Q 8.5 : What are the pros and cons of involving in-house counsel, who often play active and critical roles in accounting firm mediations? How, if at all, are mediating strategies adjusted to deal with them?8-15
  • : Plaintiff’s Counsel Perspective8-15
  • : Auditor’s Counsel Perspective8-15
Chapter 9: Insurance and Mediation
  • : Whether to Mediate9-2
  • Q 9.1 : How much input does the insurer have in making the decision to mediate?9-2
    • Q 9.1.1 : How much input should the insurer have in making the decision to mediate?9-3
    • Q 9.1.2 : How does the nature and type of policy language affect the insurer’s input?9-3
    • Q 9.1.3 : What are the main considerations for an insurer in determining whether to mediate? Do these differ from an insured’s considerations?9-4
    • Q 9.1.4 : When should defense counsel contact the insurer if mediation is being considered?9-4
  • : Timing of Mediation9-5
  • Q 9.2 : What are some of the special considerations that insurers may have in determining when to mediate?9-5
    • Q 9.2.1 : What other factors and considerations may affect the decision of when to mediate?9-6
  • : Selection of Mediator9-6
  • Q 9.3 : Who gets the final say in selection— the insureds or the insurers?9-6
    • Q 9.3.1 : Do insureds and insurers look for different things in choosing a mediator?9-7
    • Q 9.3.2 : Is insurance coverage expertise important?9-7
    • Q 9.3.3 : Are some mediators viewed as being fairer to insurers?9-8
    • Q 9.3.4 : What should insurers do when a mediator is chosen by the court or insurers are forced to use a mediator whom they did not choose?9-8
  • : Preparing the Insurers for Mediation9-9
  • Q 9.4 : What can insureds and defense counsel do to maximize the chances of a successful mediation?9-9
    • Q 9.4.1 : What information should be provided to insurers in advance of the mediation?9-9
    • Q 9.4.2 : What should defense counsel say to insurers about the reasonable settlement value of the case?9-9
    • Q 9.4.3 : What settlement authority, if any, should be sought from insurers in advance of the mediation?9-10
    • Q 9.4.4 : Should the insured and insurer attempt to agree upon a negotiating strategy in advance of the mediation?9-10
    • Q 9.4.5 : What should be discussed with the mediator prior to the mediation?9-11
    • Q 9.4.6 : Should brokers or insureds attempt to contact claims handlers or business people at the insurers prior to the mediation?9-11
  • : Whether to Attend the Mediation9-12
  • Q 9.5 : What are the considerations for an insurer in whether to attend a mediation?9-12
    • Q 9.5.1 : Should all insurers attend or just certain insurers?9-13
    • Q 9.5.2 : Does insurer attendance signal case value to the plaintiffs?9-13
    • Q 9.5.3 : Should the mediator “order” all insurers to attend? Does that help avoid any signals?9-14
    • Q 9.5.4 : Does participation by phone work for insurers?9-14
    • Q 9.5.5 : Must an insurer representative with full authority be physically present?9-15
  • : Rules of Confidentiality9-15
  • Q 9.6 : Are demands on insurers at a mediation truly confidential?9-15
    • Q 9.6.1 : What, if anything, can insureds put into writing after the mediation session?9-16
    • Q 9.6.2 : Does confidentiality extend to discussions about coverage and not just the negotiations about settlement?9-17
    • Q 9.6.3 : With the mediation process often lasting for months, how broad is the confidentiality protection that insurers may invoke?9-18
    • Q 9.6.4 : If everything is confidential, how does an insured prove bad faith?9-18
    • Q 9.6.5 : Does mediation give insurers free reign to try anything?9-19
  • : Disclosures about Insurance Policies and Coverage Issues9-20
  • Q 9.7 : How much should plaintiffs be told about insurance coverage and disputes?9-20
    • Q 9.7.1 : Should plaintiffs be given the policies prior to a mediation?9-21
    • Q 9.7.2 : Should plaintiffs be told the specifics about coverage disputes?9-22
    • Q 9.7.3 : Does the disclosure of a coverage dispute help or hurt the effort to settle the case? Does it lower expectations?9-22
    • Q 9.7.4 : Is there a way for insureds and insurers to attempt to use coverage disputes to their mutual advantage at mediations?9-23
    • Q 9.7.5 : What special considerations are involved when plaintiffs and/or insureds attempt to invoke more than one policy year?9-23
  • : Mediation of Coverage Issues9-24
  • Q 9.8 : Is mediation of coverage an express responsibility of the mediator or simply an incidental issue or group of issues?9-24
    • Q 9.8.1 : When should the mediator be apprised of the coverage issues and how?9-25
    • Q 9.8.2 : Should the insurers submit separate briefing on the coverage issues?9-26
    • Q 9.8.3 : Are the coverage issues relevant to all insurers or just some?9-26
    • Q 9.8.4 : What is the impact on the mediation when a single insurer has a coverage issue and how does this change when all insurers are united on a coverage defense?9-27
    • Q 9.8.5 : Do all coverage issues necessarily implicate settlement contributions by insureds?9-29
    • Q 9.8.6 : When are insured contributions appropriate?9-29
  • : Conducting the Mediation9-30
  • Q 9.9 : Is it better for insurers to be in the same room with the insureds and to break out only when needed?9-30
    • Q 9.9.1 : Should insurers be allowed to ask questions of the plaintiffs?9-31
    • Q 9.9.2 : Should insurers take the opportunity to provide their own perspective about the case?9-31
    • Q 9.9.3 : How do insurers feel about two-day mediations? When are they needed and when are they a waste of time?9-31
    • : Conducting the Negotiations/Extending Settlement Authority9-32
    • Q 9.10 : Who has the last word on offers and strategy? The insurer whose money it is? The insured? Defense counsel?9-32
      • Q 9.10.1 : Should insurers ever give blanket authority? Or authority “up to” a number?9-32
      • Q 9.10.2 : Should an insurer agree to waive consent and reasonableness? When should the insured ask for a waiver and when should the insurers agree?9-32
      • Q 9.10.3 : How candid should insurers be with the mediator about ultimate authority? Can the mediator be trusted? Will the insurer be disadvantaged if other parties are less candid with the mediator?9-33
      • Q 9.10.4 : How do specific settlement strategies and approaches affect insurers? For example, are settlement ranges a good thing for insurers?9-33
      • Q 9.10.5 : When plaintiffs make a ridiculous opening demand, is the only appropriate response a lowball offer?9-33
      • Q 9.10.6 : What happens when insurers heed the mediator’s advice to ignore the demand and to respond with a reasonable offer?9-33
      • Q 9.10.7 : When and how should insurers seek to end a mediation?9-34
    • : The Impact of Multiple Layers of Coverage—Attachment and Exhaustion Issues9-34
    • Q 9.11 : Does the existence of multiple layers of coverage enhance or detract from the mediation process?9-34
      • Q 9.11.1 : What is the impact of different coverage at different levels?9-35
      • Q 9.11.2 : In what situations are tower-wide contributions appropriate?9-35
      • Q 9.11.3 : Are recent case decisions making creative tower-wide settlements more difficult to achieve?9-36
      • Q 9.11.4 : What is the proper role of an excess insurer in pressuring an underlying insurer to settle or extend authority?9-37
      • Q 9.11.5 : Should the mediator enlist the support of excess insurers to pressure underlying insurers?9-38
    • : Precedent9-38
    • Q 9.12 : When should insurers be concerned that settlement concessions will set a precedent with plaintiffs, insureds and even the mediator?9-38
      • Q 9.12.1 : How does the mediator get the case settled while avoiding any appearance of a precedent?9-39
      • Q 9.12.2 : What should insurers do when the mediator refers to other settlements and mediations?9-40
      • Q 9.12.3 : When is it appropriate or a good strategy for insurers to attempt to rely on other settlements?9-40
    • : What to Do If the Insurer Will Not Settle; Assertions of Bad Faith9-40
    • Q 9.13 : Should the mediator get involved in assertions of bad faith? As a leverage tool? Merely as information?9-40
      • Q 9.13.1 : Can there ever be bad faith within the context of a confidential mediation?9-41
      • Q 9.13.2 : Are assertions of bad faith helpful to the process?9-41
      • Q 9.13.3 : What is the role of policyholder coverage counsel?9-42
      • Q 9.13.4 : What options are available to insureds when the insurers will not settle?9-42
      • Q 9.13.5 : How proactive should the mediator be in pressuring insurers to settle?9-43
    • : Relationships9-43
    • Q 9.14 : How does the commercial relationship between insureds and insurers affect the mediation process?9-43
      • Q 9.14.1 : How does the relationship between and among insurers (who may be direct competitors) affect the mediation process?9-44
      • Q 9.14.2 : What are the roles and relationships between primary and excess insurers in mediation?9-44
      • Q 9.14.3 : How does the repeat involvement of the same mediators affect the process?9-44
      • Q 9.14.4 : What role do brokers play or should brokers play in the mediation process?9-45
      • Q 9.14.5 : How does the involvement of the same plaintiffs’ counsel, insurers and defense counsel from case to case affect the mediation?9-45
Chapter 10: Recurring Legal Issues in the Mediation of Financial Institution Disputes
  • : Loss Causation and Damages10-3
  • Q 10.1 : What issue is most often the focus of mediations involving financial institutions?10-3
  • Q 10.2 : How is loss causation defined in federal securities fraud actions against financial institutions?10-4
  • Q 10.3 : What is the standard for loss causation when ruling on a defendant’s motion to dismiss in a federal securities fraud action?10-5
  • Q 10.4 : How have different circuits interpreted the standard of proof of loss causation at the summary judgment stage in federal securities fraud actions?10-6
  • Q 10.5 : How do the standards for loss causation differ for claims under the Securities Act of 1933 and claims under Rule 10b-5?10-7
  • Q 10.6 : Is an affirmative defense of loss causation available to defendants who are sued for violations of state Blue Sky laws?10-7
  • Q 10.7 : If a share price drops following a corrective disclosure, but recovers shortly thereafter, can a plaintiff recover damages?10-8
  • Q 10.8 : How are damages calculated for claims brought under Rule 10b-5?10-9
  • Q 10.9 : How did the PSLRA affect damages calculations for Rule 10b-5 claims?10-9
  • Q 10.10 : How are damages calculated for claims brought under the ’33 Act?10-10
  • Q 10.11 : How do these legal issues impact the mediation process?10-11
  • : Class Action Issues10-12
  • Q 10.12 : Can a class action be mediated to settlement before class certification?10-12
  • Q 10.13 : Does the pleaded class definition control whose claims can be resolved in a mediation?10-14
  • Q 10.14 : What approvals are required for class action settlements?10-14
  • Q 10.15 : Can the terms of a mediated settlement of a class action be kept confidential?10-18
  • Q 10.16 : What Happens If There Are Large Numbers of Opt-Outs?10-19
  • : Multi-Party Litigation Issues10-20
  • Q 10.17 : Can an attorney represent multiple clients in the same financial institution mediation?10-20
  • Q 10.18 : How can an attorney avoid conflict issues relating to allocation of settlement proceeds and payment issues among multiple mediation clients?10-21
  • : Contribution/Indemnity10-23
  • Q 10.19 : What are the contribution and indemnification issues if a mediated settlement covers less than all of the potentially liable defendants?10-23
  • : “Most Favored Nation” Provisions10-25
  • Q 10.20 : Are “Most Favored Nation” provisions in partial settlement agreements enforceable?10-25
  • : Complications from Individual (Human) Defendants10-26
  • Q 10.21 : Are there special issues for the mediation if some of the defendants are individuals?10-26
  • : Choice of Law Issues in Multi-District Litigation Actions10-28
  • Q 10.22 : Under whose law should the parties and the mediator analyze the legal issues?10-28
    • Q 10.22.1 : How does a federal court sitting in diversity determine the appropriate jurisdiction’s law to apply?10-28
    • Q 10.22.2 : What law applies in federal diversity cases transferred to another district?10-29
    • Q 10.22.3 : What substantive law applies in federal question cases that are transferred to a different district court?10-29
    • Q 10.22.4 : Whose procedural rules apply in a transferred case?10-30
    • Q 10.22.5 : What does this all mean for the mediation?10-32
  • : Draft Documentation10-32
  • Q 10.23 : What problems can be anticipated in connection with releases in a mediation settlement of financial institution disputes?10-32
  • Q 10.24 : How can separate bankruptcy proceedings impact mediating a financial institution dispute?10-33
  • Q 10.25 : What are some examples of post-agreement performance obligations that can complicate a mediation settlement agreement?10-34
  • Q 10.26 : If an opponent later tries to overreach by arguing about the meaning of a settlement term that was clearly understood by everyone at the mediation, can an attorney insist that the opponent or the mediator testify about these matters?10-35
  • Q 10.27 : Does a settlement agreement in a financial institution mediation have to be in writing to be enforceable?10-39
Appendix A: Practical Guidance from Leading Mediators
  Index

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