If you’re going to a mediation in the personal injury context it is because you have been involved in a car accident, slip or trip and fall, etc. and you have started a lawsuit. You or your lawyer have filed a statement of claim in court, gone to examinations for discovery and are now considering whether you should try for an early settlement. If you live in Ottawa, Toronto or Windsor mediation is mandatory before you can set your matter down for trial.
What is mediation?
In essence, mediation is an opportunity for resolution. It often starts in one room. You and your lawyer on one side of the table. On the other side of the table is the insurance adjuster and the insurance lawyer. At the front is the mediator. He is a professional and is trained to resolve cases.
Leading up to mediation day
Prior to the mediation day you and your lawyer will get together to discuss the case. The purpose of the mediation is to discuss your strengths and weaknesses and to ultimately discuss the value of your case. You want to go into a mediation knowing what your ideal settlement and bottom line look like. Keep in mind – compromise is the name of the game if you plan on settling your case that day.
When everyone is in the same room at the beginning of the mediation the mediator will make some opening comments and he or she will likely be addressing you because everyone else in the room (lawyers and adjuster) have attended mediations in the past.
Advantages of mediation
The mediator will discuss the advantages of mediation. You can expect to hear things like mediation is a great way to save time and money. You can resolve your case today instead of waiting years to get to a trial. You will also save money as it costs money for the mediator’s fees (if you don’t settle), additional expert reports, and setting the matter down for trial. After the mediator’s opening remarks each side will take turns making statements on the strengths of their case and the risks to the other side.
Parties then break up into separate rooms. You and your lawyer will go into one room and the insurance adjuster and insurance lawyer will go into another room. The mediator will pass offers back and forth between the rooms in hopes of settling the case.
What if a settlement is not reached?
If the personal injury case does not settle then the next step is for your lawyer to file a trial record. This is common. Cases that do not settle at mediation head towards a trial. This does not mean that your case will actually go to trial as there will be plenty of opportunities to settle after the mediation. In fact, it is sometimes better not to settle at mediation because it will put more pressure on the insurance company to pay more as they will have to spend more time and money on defending the case.
Is mediation right for you?
Mediations are a great way to close your case early if you do not have any interest in litigating for years. It is not for everyone. Our biggest piece of advice: know what you are looking for before going into the mediation so that your head is clear about your intentions if you do not see the numbers you want.