Mediation

Published on: September 20, 2023

Reflections on Mediation a Personal Injury Case in the “Post COVID” Era

Before you get offended, I know that COVID is still around and people are still getting sick. But not quite as sick as they were in 2020/21. We understand a lot more about the virus than we did before, and we have returned to gathering. Hence the title.

Today, our personal injury law firm settled a car accident case at mediation. It was a global mediation, meaning that both the tort claims (pain and suffering agains the at fault driver) and the accident benefit claims were at issue.

The mediation took place over Zoom. Between the adjusters, mediators and lawyers, there were 9 participants to the mediation.

All of this is not unusual.

Before Zoom, a mediation involving 9 participants would have required 1 main room, along with 2-3 breakout rooms. It would have needed some sort of catered lunch. It would have taken place at a hotel. One party lived in Penetanguishene, another in Grand Bend, another in London and others in the GTA. All of the parties would have needed to travel to a central location for the mediation; and perhaps stay overnight. The travel costs and room booking fees for all of the parties would be high; and would increase in the cost of the mediation and litigation.

Instead, all of the parties were able to do the mediation from the comfort of their own home; or offices. There was no need for anyone to leave early to catch a train home. Sometimes, those “leave early” to catch a train times worked out quite well. It forced the parties to cut to the chase and put out their best numbers earlier on in the process.

When the mediation was over, all of the 9 parties hit the “Leave Meeting” button on their screens and we were all back to where we all started. No travel time incurred or lost. Everyone was able to move on to their next task.

Leaving that mediation, I couldn’t help but think about the ways we conducted mediations before the Pandemic. There are a lot of moving parts for a mediation. Getting 9 people under the same roof in the same City or Town was never easy. Parties were always late for one reason or another. Whether it was traffic, bad weather, train or flight delays, or simply getting lost. That was the norm.

Nowadays, the norm for mediation delays in the Zoom era is poor internet connections which seem easier and much quicker to fix.

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Published on: January 12, 2022

Virtual Personal Injury Litigation has Changed the Game

By Goldfinger Injury Lawyers

Marshall McCluhan coined the term “the medium is the message“.

This means in plain terms, without introducing a PHD thesis on the issue, that chosen method of communication to broadcast a message has a significant impact on how the message is received and understood. It’s almost to say that the way that the message is communicated (print, tweet, TV broadcast, radio), is just as important as the content of the message itself.

This notion that “the medium is the message” is very important when considering the impact which COVID-19 has played on our Courts and how personal injury claims are being litigated today.

This first struck me in the early days of COVID, after my first virtual discovery and my first virtual mediation. I had not done a virtual discovery, or a virtual mediation prior to COVID. Virtual proceedings were the exception and not the rule. It was expected that lawyers and their clients would meet in person for these earmark events in a personal injury case. Sometimes, an insurance adjuster would not be able to attend in person. They would be available over the phone. This was frowned upon because everyone was expected to be there; particularly for a mediation. But sometimes unfortunate life events would happen which prevented an in person attendance. We would proceed nonetheless and hope for the best.

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Published on: June 4, 2020

Computer & TV Skills Increasingly Important For Lawyers During COVID

By Goldfinger Injury Lawyers

12 weeks or so and counting of “lockdown” or “kinda quarantine” depending on who you ask. It’s been difficult for everyone. From doctors, to dentists, to lawyers, to tennis pros, teachers, PSWs, general labourers, hospitality staff; you name it. The only people I know who are succeeding, if you can call it that; are those people in the video conference industry. If you work for a company which runs or services video conferencing platforms, I suppose you are busy. Also busy are likely those people who manufacture and distribute PPE. Regrettably, most of those factories are overseas, but that’s another story all together….

So; what’s it like to be a personal injury lawyer during the days of COVID?

It’s not that things have totally shut down. Things are just moving at a much slower pace in a different fasion that personal injury lawyers, defence lawyers and insurance adjusters are used to.

It’s certainly not easy. It’s particularly not easy if you aren’t tech savvy. In fact, if you are a technophobe (someone who isn’t capable or handy with technology), you likely cannot really practice law or get much done during the age of COVID.

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Published on: April 29, 2020

Teleconferencing for Personal Injury Cases: The Zoom Boom!

By Goldfinger Injury Lawyers

My 3 year old son has a song he sings in nursery which hits home for practicing personal injury law in the age of COVID. It goes a little something like this:

ZOOM ZOOM ZOOM

We’re going to the moon

ZOOM ZOOM ZOOM

We’re going to the moon

If you wanna take a trip; climb aboard my rocket ship

ZOOM ZOOM ZOOM

We’re going to the moon

Here’s the harsh reality of practicing personal injury law in Ontario in the age of COVID. Plaintiff lawyers are trying to make things happen and push cases along. Some defence counsel are as well, while others are not. Why would defence lawyers push to have a case move forward? Justice delayed is justice denied. It might be in their best interest to enjoy this slow down given that there aren’t stiff penalties or functional courts to adjudicate disputes. Courts and tribunals are closed save for “urgent” matters along with some non-urgent over the counter matters. Non-Jury Trials, Jury Trials, contested motions/applications, unopposed motions/applications without the consent of the respondents are simply not being heard.

It takes two to tango. If your dance partner isn’t stepping out on to the dance floor, there isn’t much you can do; particularly when the Courts are closed down.

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Published on: February 25, 2020

“Getting to Yes” in a Long Term Disability Case

By Goldfinger Injury Lawyers

Determining how much your case is worth in a Long Term Disability Case can be a bit of a weird science. But, there is a method to what many perceive as madness.

Plaintiff side personal injury lawyers would LOVE for your number to be accepted by the long term disability insurer.

Wouldn’t it be great if coming up to a number in a long term disability case was as easy as imagining the highest number in your head, spitting it out, and then the case is settled.

This would be your personal injury lawyer’s dream. The client gets what s/he wants. That number is very high. The lawyer feels great for having achieved such a significant recovery on behalf of his/her client.

Long term disability cases are not cases for pain and suffering. Nobody from the long term disability insurer committed an actionable wrong which led directly to your disability. Meaning, no one from the long term disability insurer ran you over with their car resulting in your disability (unless this actually really happened). For the most part, the disability has little to do with the action(s) of the insurer, and vice versa. While the decision of the insurer to deny, or terminate benefits will likely cause emotional stress and financial duress; it has little to do with the onset of the actual disability giving rise to the claim in the first place.

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Published on: November 22, 2019

How does mediation work in personal injury cases?

By Goldfinger Injury Lawyers

Mediation is mandatory in any civil case commenced in Toronto, Ottawa or Windsor. There are mandatory mediation requirements under the Rules of Civil Procedure.

Mediation is also mandatory in car accident cases, but not many save for lawyers and insurance adjusters know that it is.

Buried deep inside the Insurance Act is a provision dealing specifically with mediation for car accident cases:

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Published on: May 1, 2019

What goes on at mediation in a personal injury case (Ontario)

By Goldfinger Injury Lawyers

Mediation can be a very nerve wracking experience; although it shouldn’t be.

But I get it.

For the majority of Plaintiffs involved in a personal injury case, it’s your first time participating in a mediation. You don’t know how a mediation works, what to do, what to wear, what to expect, or how long the mediation will take place that day.

Your personal injury lawyer should prepare you for these questions and fears, but no amount of preparation will get you ready for the real thing. You have to do it, and go through the highs and the lows to really know it.

It’s important to know at mediation, there is no Judge; no Jury; no recording devices. You cannot “win” or “lose” at mediation. The case will either settle, or it won’t settle. Sometimes, even when the case doesn’t settle, it may resolve shortly thereafter because the parties have sought additional authority, or have had some time to let the position of the other side sink in. Either way, there is no Judgement or Verdict coming out from the mediation process.

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Published on: February 28, 2019

Brian Goldfinger on Mediation, Money, and More

By Goldfinger Injury Lawyers

We would like to take the time to thank all of you who rocked the vote in support of Goldfinger Injury Lawyers and Brian Goldfinger’s nomination in Canadian Lawyers’ Magazine for Top Law Firms in Plaintiff Side Personal Injury Law. Your support and well wishes have been overwhelming. Thank you. Thank you. Thank you.

We would like to use this instalment of the Toronto Injury Lawyer Blog to talk about the concept of mediation in the context of a personal injury case.

Many people have heard of the word mediation, but have never participated in a mediation before. That’s perfectly normal; especially for injured accident victims who are new to civil litigation and to the complicated world of personal injury law.

When boiled down to its core, a mediation is a confidential, without prejudice, settlement meeting. The word without prejudice means that anything that’s said in mediation, along with any offers which are exchanged won’t be held against any of the parties.

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Published on: March 14, 2018

De-Mystifying Mediation in your Personal Injury or Long Term Disability Case (Ontario)

By Goldfinger Injury Lawyers

99% of personal injury cases settle without going to trial. Between the time a notice of the claim is given, right up to the commencement of trial, there are many opportunities for your personal injury lawyer, the insurance lawyer, and the insurance adjuster to settle your case.

One of those big opportunities to settle your case is through mediation. Mediation presents a great opportunity to do so because for one entire day, all of the lawyers and adjusters set aside their other files and focus solely on getting your case settled.

Mediation is not a trial. Mediation is not an arbitration. Mediation does not involve a Judge or Jury making rulings on your case. Nobody “wins” at mediation. Mediation involves compromise.

Mediation is a confidential, without prejudice settlement meeting between the parties which is presided over by a neutral third party mediator. The mediator can be a retired judge, a lawyer or a non lawyer who now work as a mediator. Having a mediator with expertise in the area of law being litigated is important. So, if the mediator is a retired family lawyer, but they are mediating a long term disability claim, the mediator may not have the requisite expertise to get the job done.

Plaintiff personal injury lawyers, insurance defence lawyers, and insurance adjusters attend at mediations frequently. Plaintiffs (ie injured accident victims and long term disability claimants) do not.

For most Plaintiffs, they may have heard of the term mediation before, or they may have participated in a mediation in a different sort of case (family, work, union, etc.); but their personal injury mediation is likely the first time they have participated in a personal injury mediation. The process can be intimidating. After all, it’s likely your first time going through this and there is a lot at stake (your case and livelihood).

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Published on: May 19, 2016

Mediating a personal injury case: What to expect if you’re the injured party (Ontario)

By Goldfinger Injury Lawyers

Mediation is a popular tool used by lawyers to settle personal injury cases in Ontario. In some jurisdictions (Toronto, Windsor and Ottawa) mediating a personal injury case is mandatory before it can proceed to trial. The Insurance Act also contains provisions requiring mediation for an accident benefit dispute in Ontario. Some Courts have even found that a car insurer’s refusal to participate in a mediation is bad faith claims handling and awarded the Plaintiff damages in this regard.

Whether or not a mediation is mandatory; this does not change what a mediation is, and how mediation works.

If you have never mediated a case before, don’t worry. You’re not alone. 99% of our clients have never participated in a formal, legal, mediation before. BUT, 100% of our clients have participated in some form of informal mediation at one point or another in their lives!! Don’t believe me?

Ever had a dispute with your spouse or family member and you needed to call in a close friend to chat with the parties and help solve the problem? That’s mediation. When your Uncle Larry is talking to your Uncle Ned, did you need to call in Grandma to help cooler heads prevail? That’s mediation too!

Mediation is a form of dispute resolution. The nature of the dispute doesn’t matter. If there’s conflict; mediation can help resolve that conflict. Just because the dispute resolution technique isn’t labelled as a mediation, doesn’t mean it’s not.

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