Policy Limit Demands and Confidentiality in Mediation: View Behind the Curtain

By Richard Huver

Through his 30 years of litigation experience and leadership roles; Richard Huver developed the skills and expertise necessary to serve as a successful mediator for your case. As a mediator, Richard has handled cases in a variety of fields and specialties, including business, real estate, employment, and personal injury. From the simple to the complex, and from the cooperative to the contentious, Richard has the experience, the temperament and the skills that are needed to help parties resolve their disputes in an expeditious and professional manner. Learn more about Richard at: https://www.judicatewest.com/adr/richard-huver

Is the lid off the policy? That question has undoubtedly been asked by plaintiff and defense lawyers alike. Whether an insurance company has a duty to accept a policy limits demand is generally an individualized question dependent on many factors, including the timing of the demand, the information available on both liability and damages, and the likelihood of a verdict in excess of the policy limits. Evaluating how these factors apply to a demand made during the claim process or litigation is one thing. But what happens if the policy limits demand is made incident to a mediation?

In the first article of this two-part series, we look at the interplay between policy limit demands and mediation confidentiality. Assume for this discussion that plaintiff, whose claim is likely worth more than the available policy limits, opens with a policy limits demand leading up to or during the mediation. What happens if the insurance company makes an opening offer for less than the policy limits, even if they believe the case may be worth more than the policy? Does such an offer breach the insurance company’s duty to accept a reasonable settlement offer? Can the plaintiff and his or her attorney walk out of the mediation if anything other than the policy limits are tendered, confident the lid is off the policy? To answer these questions during or incident to a mediation, we need to know whether evidence of the insurance company’s opening offer is even admissible, particularly in a subsequent bad faith lawsuit?