Over the past decade mediation has become the most common means to resolve personal injury claims. In Ottawa, mediation is mandatory for all personal injury cases. Understanding the mediation process is essential for any lawyer seeking to successfully resolve personal injury claims.
It is important for clients to understand the mediation process and role of the key players: the mediator, the lawyers and the clients. In mediation, the parties use the services of a neutral third-party to assist them in resolving their dispute. Many mediators are lawyers, but effective mediators do not necessary have a legal background. At the mediation, the mediator’s role is to facilitate a discussion between the parties in an attempt to resolve some or all of the issues.
Prior to the mediation the parties will have exchanged detailed briefs outlining the evidence they rely on, along with a copy of critical supporting documents. A good mediation brief tells the plaintiff’s story in a human and compelling way.
Most mediations follow the following steps:
The mediator starts by explaining the mediation process and assuring the parties that anything said during the mediation is “confidential” and cannot be raised at any time subsequent to the mediation should there not be a settlement. This is meant to encourage the participants to be candid in their comments.
The lawyer for one of the parties, usually the claimant, sets out their views on the issues. As the claimant’s view of the case has been set out in the mediation brief, these comments can be quite brief.
The mediator may ask the claimant if they have anything that they wish to add. The plaintiff’s lawyer should have reviewed their comments with their client before the mediation to ensure that they are appropriate and will help to facilitate a settlement.
The responding party’s lawyer goes next. These comments often include a statement that the defence has a different view of the evidence and that there are 2 sides to every story. The cost and risk of taking a case to trial are usually mentioned. The plaintiff’s lawyer should have told their client to expect this kind of comment and reviewed any potential weaknesses in their case that the defence lawyer will likely bring up during the mediation.
After the opening statements the mediator may have something to say about what they see the main issues to be addressed are but will not provide an opinion as to how these issues should be resolved. It is not the role of the mediator to impose a settlement of the case. It is up to the parties to reach an agreement with the assistance and guidance of the mediator.
Moving Into Caucus
The mediator asks the parties to caucus and the parties go to separate rooms where they can meet privately with the mediator. In caucus, the mediator will have an open discussion with each party. These discussions can help overcome any stalemates that arise during mediation.
Exchanging Settlement Offers
The mediator asks one of the parties to make a settlement offer which the mediator then conveys to the opposite party. The initial offer is never accepted and is meant to elicit a counter offer which the mediator conveys to the first party.
It is quite common for there to be a number of offers and counter offers going back and forth as the parties try to determine the settlement position of the opposing party. It is the goal of the personal injury lawyer to move the defence lawyer and the insurance adjuster to their highest settlement position.
Reaching a Settlement
If the settlement positions of the parties overlap then a settlement can be reached. If the highest number offered by the defence does not meet the settlement position of the plaintiff then there will not be a settlement. It is often said that a good settlement is one that neither party is happy with. This means that, for the parties to reach a settlement, it is necessary for both of them to compromise on their preferred outcome position. The insurance company may be required to pay more than it thinks the claim is worth and the plaintiff may have to accept less than they feel they are entitled to receive. The cost and uncertainty of a trial judgement should influence the settlement position of both parties.
If an agreement is reached, the parties usually sign a hand written agreement setting out the terms of the settlement. More formal settlement documents will be drafted once the lawyers are back in their offices.
It is extremely important for lawyers to properly prepare their clients for mediation. That includes ensuring that they have provided to the opposing party all documents which are relevant to the issues in the action and they have obtained all relevant documents from the opposing party.
The lawyer representing the client at mediation will file, on behalf of the client, a statement of issues with supporting documentation. This mediation brief is provided to the opposing party and to the mediator, but is not filed with the court. Typically, any documents dealing with settlement are not filed with the court so that the court remains neutral at all times.
The lawyer and client should have a clear objective for mediation and a lawyer should have instructions on what the client expects from mediation in terms of settlement.
Mediation can be an effective means of reaching a settlement in personal injury cases. However, personal injury lawyers need to be well prepared, knowledgeable about the process, and effective advocates in order to maximize settlements reached at mediation.