First, let’s talk about what Mediation is. Mediation is a form of alternative dispute resolution. It is a means for people to settle disputes or lawsuits outside of court. Most people don’t want to go to court. A neutral third party—the mediator—helps the disputing parties look for a solution that works for them. Mediators, unlike judges, do not decide the case. The mediator's role is simply to help the people involved in a dispute to negotiate with each other in a constructive manner, to gain a better understanding of the interests of all parties, and to find a resolution based on common understanding and mutual agreement.
What is the purpose of Mediation?
The purpose of mediation is not to determine who wins and who loses, but to develop creative solutions to disputes in a way that is not possible at a trial. The mediation process is completely confidential and informal. Parties in mediation may speak more openly than in court. Many people find mediation a more comfortable and constructive process than a trial.
What happens in preparation for Mediation?
Before the mediation, we will prepare materials to be sent to the defence lawyer and mediator that support our position in the case. The key message in our materials is usually about your loss of function as a result of the accident, since your damages (compensation) are mostly based on the changes in your lifestyle due to the accident. We will also discuss with you, before the mediation, what we think the monetary range is for a settlement of your case. We also receive mediation materials from the defendants that outline their view of the case. We think it is important that you read and hear what the defendants have to say. In particular, clients can often help us respond to the defendants’ briefs.
What is the Mediation process like?
Usually, personal injury mediations proceed with the mediator making some opening remarks about the purpose and goal of mediation. This is followed by both lawyers making opening statements. Sometimes clients find it hard to listen to us describing their losses in a plenary session. It can be emotional. Some clients also find it hard to listen to the insurance company’s representative and/or lawyer discuss the holes in our case. No case is perfect and there are always comments that can and will be made by the defence counsel. In fact, it is important to appreciate that there are always risks in a lawsuit and that those risks are one reason to consider settlement
Do you, the injured party, have to attend mediation?
The clients are required to attend the mediation, but are not required to speak. They are usually asked if there is anything they want to add. However, it is quite common for the clients not to speak in the open session. If you think you will want to speak at mediation, please speak to us about it. We want you to have an opportunity to speak if you wish to. However, we would like to give you advice on tone and content.
After the opening statements, the parties usually retire to separate rooms where they exchange offers back and forth with the help and guidance of the mediator. It is often very surprising how much progress can be made over the course of a few hours. Mediation can be long. It can be 45 minutes or even an hour of waiting between offers. Sometimes, the lawyers will speak directly without the clients and with or without the mediator. This can often assist with breaking negotiation log jams. Personal injury clients are often surprised to learn that the at-fault driver or other wrong doer is not at the mediation. It is virtually always a representative of the insurance company who attends as the defence counsel's client. This is the person who attends because this is the person who will decide about how much, if anything will be paid.
Should you expect to settle your case at Mediation?
Cases do not always settle at mediation, though more straightforward cases often do. However, even if a case does not settle, the initial discussions at mediation in most cases lay the groundwork for further discussions later on.
Published on December 11, 2024
