Mediation in Personal Injury Action – What to Expect

Mediation is one step in the litigation process that can help parties settle the action outside of the courtroom. Ultimately, it can save the parties both time and money and allow the parties to have a direct input in the outcome of their case. The mediation process is informal and confidential and the parties involved can openly discuss the case on a without prejudice basis. The mediator’s role is to help the parties better understand the issues and conflicts involved in the action. The mediator will facilitate negotiations, with the goal of attempting to help the parties reach a settlement that is beneficial to both sides of the dispute.

It is very rare these days that a personal injury action will proceed all the way to trial. Approximately 95% of personal injury cases will settle before trial and mediation has played a large role in making a trial a rarity. Under Rule 24.1 of the Ontario Rules of Civil Procedure mediation is mandatory in Toronto, Windsor and Ottawa, and even where mediation is not mandatory, most lawyers will recommend it to their clients at an early stage of the litigation. The mediation is conducted by an agreed upon mediator on a roster list of mediators, or the parties may select a private mediator not on the roster. Generally, the parties involved split the costs of mediation.

All parties must attend the mediation session. In personal injury actions it is often the case that the Defendant will be represented by his or her insurer, in which case a representative from the insurance company will attend the mediation. All parties have a chance to present their side of the story. Most accident victims find that the mediation process is beneficial in allowing them to actively participate in the litigation and convey concerns that may have not been initially apparent to their accident lawyer and the other side. However, participation of the parties in the mediation is voluntary and some may prefer to leave the discussions solely to their counsel.

In order for the mediation to be successful both parties have to be willing to engage in productive negotiations and have an understanding of what their bottom line is, namely, their best alternative to taking the case to trial. To best prepare it is important to have a strong grasp on what you are trying to accomplish from the litigation, what your limits to settlement are, whether there are solutions that might be beneficial to both sides, and what will happen if the case does not settle. The lawyers will exchange mediation briefs to each other and to the mediator. The mediation briefs provide a concise summary of the case, outline the positions and interests of the parties and the issues in dispute, and indicate what each party hopes to achieve from the mediation.

Mediators have different styles as to how they wish to structure the mediation. The process usually begins with the parties’ lawyers making opening remarks about the case. Some mediators may prefer to meet with all parties together first and then separate them into different rooms and flow back and forth between the rooms to engage in separate discussions. On the other hand, some mediators may prefer to separate the parties from the get-go.

The length of the mediation and number of sessions required really depends on the complexity of the case; however, under Mandatory Mediation, parties are not required to continue the mediation for more than three hours. Ultimately, the discussions taking place between the parties and the mediator will involve the parties’ exchanging offers and counter-offers to attempt to settle the dispute.

The parties may agree to settle some or all of the issues of the dispute. Any agreements will be made in writing (Minutes of Settlement) and signed by the parties and their counsel. The Minutes of Settlement is a legally binding document and if a party breaches the settlement the other side can enforce the terms of the agreement in court. Even if the case does not settle at the mediation it is often the case that some of the issues in the dispute have been narrowed and the parties have a better understanding of the other side’s case and the strength of their own case. This helps lay the groundwork for moving the matter forward more efficiently.

Our personal injury team has settled many cases at the mediation stage of litigation with large settlement numbers for our clients. A successful mediation requires a comprehensive understanding of the law as well as strong negotiation techniques. The experienced lawyers at Himelfarb Proszanski are able to assist you with your personal injury action at all steps in the litigation process.