Can you recover the costs of a mediation from your ATE insurer? The question will only be relevant where a claim for payment of disbursements needs to be made on an after the event insurance policy. Claimant lawyers would be unwise to wait until making the claim to know the answer. Typically the policy will cover “opponents costs and unrecovered disbursements”. LAMP’s policy for example defines disbursements as
“Payments reasonably and properly incurred in pursuing Your Claim, paid either by You or Your Solicitor and the Premium for this Policy, but excluding any marketing, administrative or investigation fee connected with Your Solicitor’s acquisition of Your Claim;”
A mediator’s fee would clearly fall under this definition. However there are insurers who have confirmed to me that their policy does not cover a mediator’s fee. It is a great concern and surprise that some insurers would actually act as a bar to mediation. Given the success rates of mediation you would expect ATE insurers to be actively encouraging it to reduce their own risks. Where the ATE premium is deferred early settlement of the claim is another reason for the insurer to promote mediation. All other things being equal a policy not covering mediation will be less attractive to a consumer than one that does cover it.
My advice is to check your policy covers mediation as a disbursement. If you are unsure then get written confirmation from your insurer. If it is not covered then switch to a policy that does cover it.
Does your insurer cover mediation costs. Let me know.
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