In most cases, a liability insurance company does not need to be at a mediation to sign a set-tlement agreement, but under the terms of most liability insurance policies a defendant who has lability insurance cannot settle a case using the insurer‘s money without advance consent. In high-stakes cases, or cases where there are significant questions about whether the insur-ance policy covers the insured‘s conduct or the plaintiff‘s damages, the insurance company will send a representative or an outside counsel to the mediation. Usually it’s enough that the insurance representative is available by telephone standby throughout the day so he or she can be contacted by the policyholder or the mediator.
The defendant’s attorney is the person best able to avoid last minute glitches about authority to settle. He or she has been reporting to the insurance company about the case, and may already have been given settlement authority up to a certain dollar limit. Defense counsel often must contact the insurance representative throughout the course of the mediation to report about settlement demands and to request authority to make offers.
My website’s “conflict check” section asks the parties to identify themselves, their counsel, and their insurance liability insurance companies. I don’t do that out of idle curiosity. I want to know who the insurers are so that I can ask the defense counsel well before the mediation whether the insurance representatives will be participating in person or on phone standby, and if there are any known insurance coverage issues that could affect the outcome of the settlement.
Settling cases is not always an easy task. It shouldn’t become harder because of the absence of a necessary party or person needed to approve a settlement.