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.
Mediation in the context of a personal injury claim is best described as a private, without prejudice settlement meeting. Private means exactly that. No outsiders. No Court Reporters. No recording devices. What happens in the mediation rooms, stays in the mediation rooms.
Without prejudice means that what you say, and the positions that the lawyers take at mediation, will not be held against you down the line, should the case not settle.
Settlement meeting means exactly that. A mediation is a meeting between the parties in the hopes that the parties will make best efforts to settle the claim. A closed file is a good thing for an insurance company. Having a sense of closure, peace of mind and a financial settlement is a positive for the injured accident victim. Both sides want the case to be done with and closed. A mediation provides for that opportunity.
Where does a mediation take place? Good question! It can take place at a lawyers’ office. It can take place at hotel using their meeting facilities. It can take place at at Court Reporter’s Office. It can take place at a meeting hall or convention centre. Anywhere that has board room or office space is a good place for a mediation.
What should I wear? I tell all my clients no ripped blue jeans, death metal t-shirts or drug paraphernalia gear. Just dress normally. No need to wear a suit, tie or ball gown either.
Will there be lunch? There is a good chance lunch or snacks will be available for you, so you need not worry. Chat with your lawyer about this ahead of time.
How long does the mediation last? You can expect to be there all day, unless your lawyer tells you otherwise. Some mediations are booked for 2 hours, others for the whole day. But just because a mediation is only booked for 2 hours doesn’t mean that it won’t take longer, or be shorter. Many mediators tell the parties we will be there as long as necessary. If all that’s required is a few hours, then great. If longer is required, then you will be there for a longer period of time. It’s all driven based on the complexity of the case and the positions which the parties are taking.
If the case settles, do I get a cheque right there on the spot? No you don’t. There’s usually some paper work and closing documentation which may need to be taken care of following settlement. The insurer will also need to requisition a cheque which can take a few days or perhaps a week or so to process, cut and get shipped out. This is completely normal.
Do I need to speak at the mediation? Unlike your Examination for Discovery where the Plaintiff is being grilled all day long by a lawyer(s) from the insurance company, there is no need for the Plaintiff to speak at the mediation. All the Plaintiff needs to do is show up, and listen! Once you’ve made it to the place of the mediation, your job is 90% done! If you wish to speak, you certainly may do so. There is a chance for all of the parties to say their piece during the openings of the mediation, which we will examine in the section below.
What is the format of mediation? All of the parties (lawyers, adjusters, and mediator) will gather together in a main room (like a board room). The mediator will likely sit down at the head of the table, with both parties on opposite sides of the table. The mediator will give an opening statement welcoming the parties, thanking them for participating in mediation, explaining what mediation is and how it works. The mediator may, or may not give his/her opinion regarding the strengths and weaknesses of each sides’ respective cases. They may want to save their opinion for later, in private with the parties so that the mediation process isn’t skewed one way or another. Then the lawyer for the Plaintiff will give his/her opening. Once the opening for the Plaintiff’s lawyer is over, the Plaintiff may wish to speak if they chose to do so. Some people like talking. Others don’t. It’s entirely the Plaintiff’s decision.
Once the Plaintiff openings are complete, the lawyer for the Defendant insurance company then gets to make an opening. This can be followed by an opening from the insurance adjuster (or not). It’s up to them if they want to speak.
The lawyer for the Plaintiff can then make a response to the Defendant lawyer’s opening (or not).
Once the openings are completed, the parties are then sent to their own rooms. These are called break out or caucus rooms. The mediator then goes from room to room (like a ping pong ball) relaying messages and offers to both sides.
The mediator does a lot of walking in between rooms. Their job is to bring the parties close together towards a settlement. They say that a good settlement is one where neither side feels like they won. The Plaintiff feels like they settled for too little money. The Defendant feels like they paid out too much money. But only one person is walking out of the room that day knowing that they’ve settled their case and a settlement cheque is coming their way. That’s the Plaintiff. The case has closed, thanks to some hard work, open minds and the mediation process.