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.
The Plaintiff along with his/her lawyer(s) attend at the mediation. The Defendant insurance rep. along with their lawyer(s) attend at the mediation on the other side. In a personal injury case where there is insurance (which is most cases), the at fault insured party him/herself will NOT attend at the mediation because they aren’t responsible for making any business decisions on behalf of the insurer. They are merely the insured; but not the decision maker. So a Plaintiff need not worry about having to confront the wrong doer/ at fault party at mediation.
The person presiding over the mediation is called a mediator. This person does not have to have any formal legal training (but they often do). Most mediators we work with are retired from many years of private practice in law. The mediator does not have to be a Judge or Arbitrator (although many retired Judges act as mediators in their retirement from the bench).
The mediator is on nobody’s team. His/her sole job is to work as hard as they can to bring the parties together in order to achieve a settlement.
There is no Judge, Jury or Court Reporter at mediation. No final decisions from a legal process standpoint (other than settlement) are made at mediation. This is not a trial or examination for discovery. It’s simply a fancy settlement meeting.
In the event the case does not settle at mediation, that’s fine. Nobody is forced at mediation to settle their case. In the event that the case does not settle, the case moves on to the next legal step. This can be an examination or further examinations for discovery. It can be a Pre-Trial. It can be a trial. It can be defence medical examinations. Either way, just because a case does not settle at mediation does not mean that it’s the end of the road for your case.
The mediator cannot force a Plaintiff to budge from their position at mediation. The mediator also cannot force the Defendant insurer to pay the Plaintiff any sum of money either. The mediator can make suggestions, provide insight or give their opinion. But it’s up to the Plaintiff/Defendant to do with that opinion what they will.
When it comes to money, the Defendant insurance company does not attend at mediation with a suitcase of cash, or a chequebook ready to tempt the Plaintiff parading money in their face. In the event the case settles, the insurance adjuster will report the settlement to their superiors back at the office (because everyone’s got a boss), and get their accounting department to cut a cheque. Those funds will be sent to your personal injury lawyer within a set time frame. Some insurers are faster than others to cut cheques, and vice versa. Regardless, you won’t be walking out of mediation with real cash in your pocket, or with a cheque in hand. I believe that years ago insurers brought cheques to mediation, but that practice was outlawed because people were accepting money out of duress.
The length of time required to arrive to a settlement, or to conclude a mediation varies. Each mediation is different and moves at their own pace. They are unpredictable in that regard. The same way that the length of time the mediation will last is unpredictable, so are the outcomes of the mediation. If all Plaintiff Personal Injury Lawyers knew in advance how much money the Defendant insurer was bringing to mediation, there wouldn’t be a need to meditate in the first place. From a Plaintiff personal injury and client perspective, a big part of mediation is finding out exactly how much money the Defendant insurer has brought with them for the purpose of the mediation; and then making an educated decision with the assistance of your lawyer if that amount of money is tempting enough to get the case settled. Only through mediation will you be able to find out what the Defendants best offer is that day (although that best offer may change as the days go by for better or for worse). That means that just because a Defendant made an offer at mediation; doesn’t mean that the same offer will be available to the Plaintiff after mediation. It can be a one time only sort of offer.
The idea of mediation sounds rather easy. But it’s not. Mediations can be intense and nerve wracking. There are a lot of things with the Defendant insurer will say at mediation which will rub a Plaintiff and their lawyer the wrong way. This makes sense. If the Defendant liked the Plaintiff’s case, and agreed with everything that the Plaintiff had to say; the Defendant insurer would have paid the Plaintiff long ago (likely without the need of the Plaintiff retaining a personal injury lawyer). Most of our clients have problems sleeping the night before mediation because they are so nervous. This is completely normal. It’s your life. Nobody lives your life but you. Nobody walks in your shoes but you. These nerves are a sign that the case has a deep and profound meaning and importance to you; as it should. But don’t let your nerves paralyze you. Harness your nerves to keep you sharp, attentive, focused and alert so that you can perform and listen your best at mediation to ensure that you and your lawyer are on the same page. This will help your mediation move more smoothly to better optimize your result and make better use of your time.