by ~ Adam R. Doherty (Email) (Web Site) ~ and ~ Susan E. Grondine (Cavell USA), Joseph S. Sano (Prince Lobel), Paul White (Sugarman, Rogers, Barshak & Cohen, P.C.) and Robert A. Whitney (White & Williams) Panelists Susan E. Grondine (Cavell USA), Joseph S. Sano (Prince Lobel), Paul White (Sugarman, Rogers), and Robert A. Whitney (White & Williams) discussed different approaches cedents and reinsurers can take to reduce the cost and increase the efficiency of the reinsurance dispute resolution process. Joe Sano introduced the panel’s presentation by outlining some of the obstacles to the efficient resolution of reinsurance disputes and some of the approaches that the panel would present for streamlining the dispute process. The panel participants then presented three vignettes based on a fact pattern involving a dispute (with a relatively modest amount at stake) that demanded careful attention to cost control by the parties. To view the PowerPoint presentation, please click here.
The vignettes showcased three significant cost control points in the arbitration/litigation process—an initial call between client and counsel; a follow up call at which key strategy decisions are made; and a call between opposing counsel during which cost control and scheduling proposals are exchanged in advance of the organizational meeting or scheduling conference.
Introducing the first vignette—the initial telephone conference between a party to a reinsurance dispute and its outside counsel—Sano explained the importance of giving outside counsel the tools needed to plan and formulate a strategy for handling the reinsurance dispute, including communicating client guidelines regarding cost control. Sano’s presentation included a review of topics [add link to that slide] that should be discussed during such a phone conference. Sue Grondine (as cedent’s in-house counsel) and Rob Whitney (as outside counsel) then demonstrated these points during a simulated telephone conference. As part of their discussions, Grondine suggested the possibility of a “fixed fee” legal expense arrangement for the arbitration, while Whitney proposed the possible use of the ARIAS-US “single arbitrator program,” a stream-lined process involving a single arbitrator designed for arbitrations with smaller contested values. As an additional cost-savings measure, Whitney and Grondine also discussed when consideration should be given to “phasing” the resolution of certain key issues, for example by using either a summary adjudication or a “mini-hearing” procedure, where a quick determination of a certain issue is likely to facilitate the resolution of the remaining issues between the parties.
In introducing the second vignette—a telephone conference between the client and outside counsel to agree on a plan for the dispute—Paul White explained the importance of “accountability” in the relationship between client and counsel and how that can be enhanced by the preparation and use of a Dispute Plan and a Detailed Budget. White identified some of the important elements of an effective dispute plan, including early dispute termination strategies and the identification of leverage points which may enhance negotiation, as well as the potential to resolve the dispute through mediation. Components of a detailed budget were also presented.
Sano and Whitney then conducted another simulated telephone conference, this time acting as outside counsel and in-house counsel for the reinsurer. The call assumed that a detailed dispute plan had been prepared, allowing the panelists to discuss specific topics within the plan, including efforts to sequence the work to enhance settlement prospects, budgeting, lean staffing and discovery stipulations. Whitney and Sano also discussed the best method for having the arbitration proceed using a phased approach and whether a summary adjudication or a “mini-hearing” process would be the best and most cost-effective way to get one of the key issues quickly resolved in the hopes that it would promote settlement.
Whitney then detailed the objectives for the third vignette: a telephone conference between opposing counsel to discuss an arbitration schedule and a proposed discovery plan, including strategies for reaching common ground on cost containment issues and making the arbitration process as efficient and cost effective as possible. To illustrate these points, White and Sano simulated a call between opposing counsel prior to the organizational meeting in an arbitration. In the call, they were able to demonstrate how experienced counsel can effectively negotiate for the positions each wants. Specifically, they discussed streamlining discovery through voluntary production of non-privileged claim file materials and by seeking advance agreement on likely points of dispute, such as anticipation of litigation dates, privilege log formatting, and mechanisms for resolving any discovery disputes which nonetheless arise. Grondine provided additional examples of streamlining activities based on her extensive dispute management experience.
Overall, the Panel was able to convey the opportunities that are available to reduce costs and enhance the efficiency of the arbitration process. The use of vignettes helped the Panel to demonstrate some of the important techniques that are available to achieve these goals.
Adam Doherty can be reached at adoherty@princelobel.com.
« Back to Articles
|
