But, with less than 5% of cases making it to trial, transferring that focus to implementing cutting edge resolution strategies is vital.
Dawn Griffin, Senior Vice President of Carrier Practice interviews Caryn Siebert, Director of Carrier Engagement on how to transform these complexities into laser-focused strategies.
Dawn Griffin (DG): Caryn, what have been some of the biggest challenges to come off the back of COVID-19 and are they here to stay?
Caryn Siebert (CS): I think the most obvious change we have seen in the litigation space is the shift to digital mediations and trials via virtual platforms, such as Microsoft Teams or Zoom. But the pre-trial or pre-mediation space is what has been most disrupted by the pandemic. All the engagements in the lead-up, such as briefing and questioning your witnesses; gathering appropriate information, statements, and evidence; and clearly understanding the state of play for the plaintiff have been hindered by our virtual evolution.
Understandably, these engagements are easier when we are standing in front of a person, seeing their face, hearing their voice, and understanding their character and demeanor. Even something as simple as building rapport with your witnesses is much more challenging behind a screen and keyboard.
DG: The loss of in-person rapport-building has been pretty apparent. With these challenges in mind, what do professionals need to do to best prepare for a virtual mediation?
CS: Virtual mediation sessions can be just as effective as in-person methods when leveraged with the right tactics. I think it really comes down to how prepared your team is and taking into consideration all limitations.
When it comes to engaging with witnesses, leaving enough time is vital. You’ll need enough time to build a rapport within the bounds of a virtual setting; enough time to take them through deposition questions again, and again, and again; and enough time to ensure all bases are covered to avoid any surprises.
Another key factor that can play a big role in the outcome of your case when virtually managed is your selection of mediator. The same practices apply here: select a mediator you have a prior positive working relationship with, or at the very least, one who knows you as a professional.
Having a plan of action and following that plan is critical to a successful outcome for negotiations. More than ever before, you need to clearly communicate plans with the risk manager, carrier team, and defense attorney to ensure things run smoothly. In these conversations, you’ll often need to bring things back to basics to ensure a plan is in place for the simple things, including audio and video arrangements, whether it will be recorded and other admin details.
DG: Are there any benefits of the adaptations coming out of COVID-19?
CS: Across the board, for anyone and everyone, we’ve seen COVID-19 cause significant economic disruptions and social unrest that have led to stresses, uncertainty, and frustrations, but we have also seen a real increase in how society values around humanism, empathy, and trust, and that change really goes both ways for us in mediation.
On the one hand, this renewed value in humanism makes it more important to personalize your corporate defendant. When up against an individual with a face, a story, and a history, people are going to be more likely to empathize with their situation, so as the defendant, it is vital to highlight the faces behind the big business and showcase that the organization is simply made up of lots of other people. Where possible, highlight those pieces of an organization that make it human: its volunteer work, charity support, and cultural focuses – anything that will help people connect with its human side.
On the other hand, the pandemic serves as a common denominator that anyone and everyone can relate to, which can often serve as a silver bullet in the case. More often than ever before, they can leverage the emotional drawcard of the pandemic as a common inroad to create instant connection with every juror, and transfer this feeling of sympathy onto the situation. The same message of preparation applies here as a workaround. Ultimately, prioritize preparing the things that you can control to ensure that those you can’t control have as little impact on your game plan as possible.
In that 5% of the time when cases do end up going to trial, it’s critical you are incredibly prepared. Make sure you understand who’s in the jury, while we are still not fully open, and what their prior perception of your industry is.
DG: Thanks for your insight Caryn. Virtual mediation is certainly a trend we don’t expect to go away anytime soon, and as in-person trials ramp up we expect to see more of these challenges, too.
To learn more about how Gallagher Bassett can help your company improve in and out of the courtroom, connect with our team of experts.