(photo courtesy of xetark)

Thanks to Geoff Sharp at Mediator Blah Blah for hipping us to How to Build a Mediation Presentation That Will Make an Insurance Adjuster’s Sphincter Tighten by Bob Gerchen, jury consultant and author.  Excerpt below.

CONSIDER YOUR AUDIENCE 

In a mediation. . . [w]e're not playing to jurors. We’re playing to the person who holds the purse strings. The insurance adjuster. Does an insurance adjuster care that your young client was Phi Beta Kappa? Not likely. Is an insurance adjuster emotionally affected because your client’s legs were burned off him while he sat half in and half out of the SUV that had just rolled over on him? Doubtful.

Insurance adjusters have seen the worst of the worst. They see horrific injuries every day. They see “perfect” plaintiffs every day. It doesn’t move them. What do insurance adjusters care about?

Insurance adjusters care about one thing more than anything in the world, even more than money.

Risk.

When an insurance adjuster is listening to and watching a mediation presentation by a plaintiff, she is asking herself, “What is my downside here? What is my risk level?” And she is constantly weighing the risks of going to trial versus the costs of settling with money that the insurance company would prefer to hold on to for a little longer.

YOUR OBJECTIVE: COMMUNICATE THE RISK

When you start putting together your mediation presentation, instead of asking, “What’s great about my case?” ask yourself, “If I were the adjuster, what about this case would freak me out?”

THE ELEMENTS OF THE SPHINCTER-TIGHTENING PRESENTATION

Their Witnesses and Documents

The first answer is bad defense witnesses. . . . As much as possible, tell the story using defense witnesses. Pull out the parts of depositions that show blazing incompetence, indifference or best yet, bad motive. As much as possible, include documents generated by the defense to bolster your case.

Adjusters don’t typically see witness testimony before trial. If they’ve got some awful witnesses, make the adjuster painfully aware of it. Start and end with their horrible witnesses. 

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WHAT ABOUT MY PLAINTIFF?

[T]he plaintiff should be a coda, just a quick notice to the defense that they won’t be able to score big on “your guy.”

The big dollars don’t lie in the beauty of your plaintiff’s life and the tragedy of his loss. The big dollars lie in the adjuster’s uneasiness about the risk. And if you can get the adjuster’s sphincter to tighten, her hands may well loosen.