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

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).

At Goldfinger Injury Lawyers, we meet with our clients before mediation to explain to them all about the mediation process to get them comfortable so that our clients know what to expect. But, we would like to share some of our insights through the Toronto Injury Lawyer Blog to better serve the public.

Here are some of the most common questions and queries we have received over the years from our clients about mediation and how it works:

1. Do I have to speak at mediation? No. You don’t. Unlike an Examination for Discovery where the client has to do most  of the talking, at mediation, your personal injury lawyer will do most of the talking. 90% of your job is attending the mediation on time. The other 10% is listening to what is being said. If you wish to speak at mediation, you certainly can. Sometimes it’s an effective tool for a Plaintiff to speak. Sometimes it’s not. It depends on the case, and the content of what’s said. Our lawyers have seen people speak at mediation and it has helped their case. Our personal injury lawyers have also seen the opposite effect. Consult with your personal injury lawyer about this.London-Head-Shot-Brian-Goldfinger-201x300

2. What should I wear at mediation? You are not required to dress in formal wear (wear a suit + tie,  dress, blouse, etc.)at mediation. At the same time, it’s not appropriate to wear a t-shirt with offensive logos like “Death to Lawyers”, or look like you have just come out of a casting call for a Mad Max Thunderdome re-make (unless you lead a punk rock lifestyle and that’s your 24/7 look). We tell our clients in plain English; no offensive slogan shirts, no ripped or tattered clothing, no drug paraphernalia/jewelry; jeans and a shirt is just fine.

3. How much money will my case settle for/How much money will the insurance company bring? Your lawyer will have no idea how much money the insurance company will have authority to settle your case for at the out set of mediation. Your lawyer will also have no idea how much your case will settle for. By then end of the mediation process, you and your lawyer will have a much better idea. That’s why you have to go through the process to see if the insurer’s best and final offer is tempting enough for you to accept.

4. Do I get my money at mediation? No. The insurer will not bring a giant suitcase of cash to the mediation and pay you directly from that suitcase. Nor will they bring a cheque book and pay you right then and there (although that was a common practice long ago). If your case settles at mediation, the insurance adjuster will return to their office and request a cheque from their accounting department. That cheque will likely be sent to your lawyer and deposited in to your lawyer’s trust account. After the funds have cleared, they will be released to you. The length of getting you the funds depends on how quickly the insurer can cut a cheque, or any other interlocutory steps which are required prior to the release of the funds.

5. What happens if my case doesn’t settle at mediation? It’s NOT the end of the world if your case does not settle at mediation. The reality is that not all cases settle at mediation. Just ask a mediator! They will tell you that it’s not uncommon for mediations to fail. But even a failed mediation is a win because it may narrow the issues, highlight differences or areas of the case which need improvement, or better help the other side understand your point of view. In any event, if your mediation fails, your case continues in the normal course. The next step may be a medico-legal examination, a further discovery, a pre-trial, etc. It all depends on what stage your case is at.

6. What do I need to do before mediation? Our personal injury lawyers recommend that you read/review a copy of the other side’s mediation brief so that you understand their theory of the case. The other side’s theory of the case will be completely different than yours. If it wasn’t, then there wouldn’t be any disagreement and your case would either not need to be litigated, or it would have settled by now. We recommend that you get a good night sleep before mediation, but we appreciate this is easier said than done on account of all of the nerves you’ll likely have going in. We recommend that you have made transportation arrangements to/from the mediation. We can’t have a mediation if you’re not there! If you have transportation issues, let your lawyer know ASAP. Allocate enough commute time for traffic and get there early. This is YOUR mediation day. This is an important day for YOU and your family so don’t be late.

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