Concurrent Mediation of Liability and Insurance Coverage Disputes

Tort litigation has yet to produce a satisfactory solution to a recurring and difficult problem: the presence of an undecided insurance coverage question when the underlying liability case is still pending. The possible litigation options have serious drawbacks. Resolving the coverage case while the tort suit is pending can in some contexts undermine the insured's defense in the tort suit. Yet leaving the coverage claim unresolved throughout the underlying suit raises concerns of structural collusion and inefficient levels of indemnity insurance. This article explores the use of what we call “concurrent mediation” - mediation of both liability and coverage - as an alternative to these adjudicatory options. By working through a series of paradigmatic coverage-liability disputes, we examine whether, when, and how concurrent mediation can be effectively employed. Our aim is not to discuss mediation versus litigation as a general matter, but to illuminate the incentives, strategies, and doctrinal issues that can affect the feasibility and desirability of concurrent mediation