PROCEDURES FOR THE NEW JERSEY DEPARTMENT OF BANKING AND INSURANCE MEDIATION PROGRAM FOR INSURANCE CLAIMS FOLLOWING STORM SANDY

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1 Introduction PROCEDURES FOR THE NEW JERSEY DEPARTMENT OF BANKING AND INSURANCE MEDIATION PROGRAM FOR INSURANCE CLAIMS FOLLOWING STORM SANDY The Storm Sandy Mediation Program was established by the New Jersey Department of Banking and Insurance ( Department ) as a voluntary program available for the mediation of unresolved first party insurance claims under homeowners, automobile and commercial insurance policies for losses arising from Storm Sandy in New Jersey. Disputes must involve a controversy of at least $1,000, the loss must have been incurred due to Storm Sandy, and the claim denial cannot be due to the fact that no policy was in effect at the time of the loss. Claims referred to the Office of the Insurance Fraud Prosecutor in the Department of Law and Public Safety are excluded from the program. Other eligibility requirements are set forth below. On March 28, 2013, the New Jersey Department of Banking and Insurance selected the American Arbitration Association (AAA) as the Administrator for the Mediation Program established by Order No. A This document sets forth the procedures approved by the Department that govern the Mediation Program. Insurers authorized or admitted to transact business in New Jersey and the New Jersey Insurance Underwriting Association shall be required to participate in the Mediation Program and resulting mediation conferences. Surplus lines insurers and risk retention groups may elect whether or not to participate in such mediation conferences either by providing a blanket notice to AAA that they will or will not participate, or responding to AAA about participation on a case-by-case basis. If participation is on a case-by-case basis, a surplus lines insurer and risk retention group must advise the AAA whether it will participate in a mediation conference within five (5) business days of the insurer s receipt of the notice of mediation provided for below. A) REQUESTS FOR MEDIATION: 1. Policyholders can request a mediation conference by submitting a written request on the mediation request form attached hereto as Exhibit A to the AAA. Policyholders can request this form via traditional mail, , and via facsimile, as well as by telephone by contacting AAA at the points of contact listed below. The policyholder may also obtain a copy of the mediation request form on AAA s website at After the policyholder completes the form, the completed form must then be submitted to AAA via traditional mail, or facsimile. American Arbitration Association ( AAA ) 1101 Laurel Oak Road, Suite 100 Voorhees, NJ Telephone: (855) Facsimile: (855) If a policyholder submits a mediation request, on the form or in some other format, to an insurer, then the insurer must forward the request to AAA via or facsimile no later than one (1) business day after receipt. 2. Upon receipt of a mediation request form, the AAA shall review same to determine whether the claim is eligible for mediation pursuant to the criteria for eligible claims described above in the Introduction and in Order No After review, the AAA shall notify the policyholder and the insurer within three (3) business days of receipt of the request for mediation that either: (i) the request for a mediation conference is rejected and specify the reason for the 1

2 rejection, or (ii) the request has been accepted. If the insurer is a surplus lines insurer or a risk retention group, the AAA shall include in the notice a request that the insurer advise the AAA whether it will participate in a mediation conference within five (5) business days of the insurer s receipt of the notice. If AAA is not notified that the insurer consents to participate within the specified time, it will be presumed that the insurer does not consent to mediation. In this notice, AAA will also: notify the parties as to the date of the scheduled mediation if it has been scheduled; advise that the mediation request was accepted based upon the policyholder s responses on the mediation request form; and state that if additional information is received from the insurer which demonstrates that the claim(s) is not eligible for mediation, then the mediation conference may be canceled by AAA. B) SCHEDULING OF MEDIATION CONFERENCES AND MEDIATOR REQUIREMENTS/DISQUALIFICATION REQUESTS: 1. If the mediation request is accepted, the AAA shall select a mediator and schedule the mediation conference so as to limit the travel and expense to the parties, particularly the policyholder(s). The AAA will notify each party of the date, time and place of the mediation conference at least ten (10) days prior to the date of the conference, unless a shorter period is agreed to by the parties. 2. All mediation conferences shall be scheduled no later than thirty (30) days after receipt of a request for mediation if deemed eligible for participation in the Mediation Program by the AAA. Mediation conferences may be scheduled beyond thirty (30) days after receipt of a request for mediation only in cases where both parties agree in writing that an extension of time is necessary. Mediation conferences shall be held in person to the extent practicable. However, video-teleconferencing mediations will be permitted if all parties consent and to the extent such can be facilitated by AAA. 3. Mediators shall be on the roster of persons qualified to provide mediation services in civil actions pursuant to the New Jersey Court Rules, specifically R. 1:40-12(a)(3). The AAA shall also ensure the objectivity and qualifications of the mediators. The AAA will retain the right to set additional minimum qualifications for the mediators who serve on this panel, and may establish training and continuing education requirements, and retains the discretion to appoint and remove individuals to this mediation panel as required. 4. A party may move to disqualify a mediator for good cause at any time. The request shall be directed to the AAA if the grounds are known prior to the mediation conference. Good cause includes a conflict of interest between a party and the mediator, inability of the mediator to handle the conference competently, or other reasons that would reasonably be expected to impair the conference. 5. Mediators appointed to Storm Sandy mediations are required to comply with the AAA/ABA/ACR Model Standards of Conduct for Mediators. In the event of a conflict between the Model Standards and any provision of these Procedures, the Procedures shall govern. Among other things, the Model Standards require mediators to (i) decline a mediation if the mediator cannot conduct it in an impartial manner, and (ii) disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator s impartiality. To that end, prior to accepting an appointment, Storm Sandy mediators are required to make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for the mediator. Storm Sandy mediators are required to disclose any circumstance likely to create a presumption of bias or prevent a resolution of the parties dispute within the time-frame desired by the parties. A mediator may not mediate any case for which the mediator cannot be impartial, whether based upon a conflict of interest or otherwise. 2

3 C) CONDUCT OF MEDIATION CONFERENCES: 1. The mediator shall provide each party with the opportunity to present their side of the controversy. 2. Parties may present relevant documents and bring individuals with knowledge of the issues to the mediation conference, such as adjustors, appraisers and contractors. The insurer and insured have the right to bring interpreters to the mediation. Each party shall be solely responsible for any costs and expenses that they may incur in this regard. 3. The mediator may meet with the parties separately, encourage and facilitate meaningful communications and negotiations between the parties, and otherwise assist the parties in reaching a settlement. 4. The representative of the insurer attending the mediation conference shall bring a copy of the policy and the entire claims file to the conference. He or she shall possess knowledge of the facts and circumstances of the claim, be knowledgeable of the provisions of the applicable policy and have authority to settle the full amount of the claim and to disburse the settlement amount at the conclusion of the mediation conference. 5. The policyholder may be represented by counsel or public adjusters at the mediation conference provided that five (5) days notice of the representation is provided to the AAA or assigned mediator, who will in turn immediately notify the insurer. The policyholder may also be assisted by a relative or friend. To increase the chances of settlement, policyholders are strongly encouraged to attend the mediation session along with their representative. Insurers may also be represented by counsel at the mediation conference provided that five (5) days notice of representation is provided by them directly to AAA and the policyholder. 6. The mediator does not have the authority to impose a settlement on the parties but will attempt to help them reach a mutually satisfactory resolution of their dispute. The mediator is not a legal representative of any party and has no fiduciary duty to any party. The mediator may terminate the conference if he or she determines that either party is not negotiating in good faith, (e.g. is continuously disruptive, becomes unduly argumentative or adversarial, or otherwise inhibits the negotiations as determined by the mediator). 7. If the parties achieve an agreement on resolution of the claim at the mediation conference, the resolution shall be memorialized in writing by the mediator and provided to both parties prior to the termination of the mediation conference. This writing memorializing the settlement terms shall be on a form to be created by AAA that includes the following information: i. names of the parties and the mediator; ii. mailing addresses of the parties; iii. phone numbers of the parties; iv. facsimile numbers of the parties, if available; v. addresses of the parties, if available; vi. policy and claims numbers at issue; vii. if a partial settlement, a brief description of the claim(s) resolved; viii. the settlement amount; ix. the payment method; x. the timing of payment; xi. the process to rescind any settlement agreement and the timeframe within which the policyholder may do so as provided in D1 below; and xii. contact information for AAA. 3

4 8. If the resolution includes payment of settlement funds by the insurer to the policyholder, the insurer s representative shall disburse the settlement amount to the policyholder and any lienholder(s) as required by the insurer s business practices at the conclusion of the mediation conference. However, if an insurer cannot accommodate this requirement because of the need to issue a computer generated check, then the insurer shall disburse the settlement amount to the policyholder and any lienholder(s) as required by the insurer s business practices no later than three (3) business days following resolution of the claim at the mediation conference. 9. The Department may, at its discretion, have a representative of the Commissioner attend and be present at any mediation conference. D) POST MEDIATION: 1. The mediation shall be non-binding. However, if a settlement is reached at the mediation conference, the policyholder shall have three (3) business days after the date of the mediation within which he or she may rescind any settlement agreement, provided that the policyholder has not cashed or deposited any check or draft disbursed to him or her for the disputed matters as a result of the mediation conference. To rescind any settlement agreement, the policyholder must provide written notice to AAA (or the assigned mediator) and the insurer that the settlement agreement is null and void. This written notice must be received by AAA and the insurer on or before 5 p.m. of the 3rd business day after the mediation. This written notice may be transmitted to AAA and the insurer via facsimile, , or traditional mail. 2. If a settlement agreement is reached and is not rescinded by the policyholder within three (3) business days as provided above, it shall act as a full and final release of all specific claims that were presented and actually settled at the mediation conference. 3. Mediation conferences shall be confidential. If a settlement agreement is not reached, oral or written statements made during the mediation conference shall not be admissible as evidence in a civil action concerning the claim, except with respect to any proceeding concerning an investigation of insurance fraud. Evidence otherwise admissible in a civil action shall not be excluded merely because it was disclosed during the mediation conference. 4. Neither the AAA nor any mediator is a necessary party in judicial proceedings relating to the mediation. Neither the AAA nor any mediator shall be liable to any party for any error, act or omission in connection with any mediation conducted under these procedures. The mediator and/or the AAA or any AAA employee will not be called as a witness by any party to the mediation in any litigation with regard to the claim, except with respect to any proceeding concerning or investigation of insurance fraud. E) MEDIATION FEES AND BILLS: 1. The fees of the mediator and the AAA shall be borne by the insurer, including surplus lines and risk retention groups that opt to participate in the Mediation Program, unless the insured fails to appear at a scheduled mediation conference and fails to have good cause for the failure to appear. Good cause shall consist of severe illness, injury or other unforeseen and uncontrollable emergency that could not have been reasonably remedied or anticipated prior to the conference. If the policyholder fails to present good cause for a failure to appear at the mediation conference, then the costs of the canceled mediation conference and any rescheduled conference shall be split evenly between the parties. 4

5 2. The AAA shall submit a bill to the insurer for the AAA and mediator fees of each mediation conference. At the discretion of the AAA and with the consent of the insurer, alternate billing arrangements are permissible, such as monthly or bulk billings. 3. The bill to the insurer shall be itemized and shall conform to the fee structure set forth below. 4. The cost for Personal and Commercial Claims is $750 allocable as follows: $350 for the AAA administrative fee, $400 for mediator compensation. Mediator compensation is for one two-hour mediation session. If a request for mediation is rejected, the AAA administrative fee will be reduced by 50% from $350 to $175. For Commercial claims only, additional time agreed to by all the parties, up to two additional hours, will incur additional mediator compensation at the hourly cost of $200 to be billed in 30 minute increments. The parties may agree to split the mediator costs of any additional mediation sessions as long as such agreements are in writing. If a mediation session is canceled more than 72 hours prior to the scheduled mediation, the mediator fee will be reduced by 50% from $400 to $200. Mediator compensation is not refundable if the mediation session is canceled within 72 hours of the scheduled time. 5

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