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Mediation in personal injury actions (Ontario)

If you’ve consulted with a personal injury lawyer, then you’ve likely heard, or found out that 99% of these sort of claims settle BEFORE trial.

One of the tools which lawyers use to foster settlement is called mediation.

Mediation is an important step in any legal case. In fact, mediation is so important, that in Toronto, Ottawa and Windsor, mediation is actually required BEFORE a matter can be set down for trial. The Financial Services Commission of Ontario (FSCO) requires that all accident benefit disputes get mediated BEFORE they can proceed to Arbitration or to litigation. if you fail to mediate, then you can’t proceed.

Many clients want to know what they can expect at mediation. It’s a very good question considering that it’s such an important step in your case, and at the end of the day, the case might get settled if the mediation is successful. Mediation can be particularly nerve wracking for many because accident victims have never been through the process before.

The purpose of this Toronto Injury Lawyer Blog post is to get you more familiar with the mediation process; what to expect; and how it works.

Mediations can take place ANYWHERE. I mean it.

I’ve seen mediations take place in office board rooms, at a mediator’s home, over the phone, in adjacent buildings within walking distance, or over Skype. Wherever the parties are, or are NOT, a mediation can take place.

A mediation is presided over by a mediator. The mediator is a neutral, third party who neither works for one side or the other. The mediator works for the mediation process. Their job is to bring the parties together to bring forth a settlement.

The mediator is generally a lawyer, or a retired judge with knowledge in the particular subject matter of the case. So, if you have a car accident case, then the mediator will generally have knowledge in car accident law. It makes no sense to have a mediator who has experience in tax law, to conduct a mediation dealing with a traumatic brain injury case. Even though the mediator is generally a lawyer or a retired judge, the fact is that the mediator can be ANYBODY; so long as BOTH parties agree to using that person. So, if both parties like the barrista at Starbucks; and think that person is best to resolve the issues in dispute; they can use that person for the mediation. It doesn’t matter.

The best mediators generally have experience in the area of law in dispute. And, they have credibility with both sides such that what they say carries some weight. So, unless that barrista from Starbucks is a retire Judge or FSCO Arbitrator, I would stick with the more traditional mediators. You know; the ones who do this sort of thing for a living.

The format of the mediation is as follows. All of the parties will meet together is a room, such as a large board room. The mediator will make an opening statement to introduce the parties, explain the process and set the ground rules. The injured accident victim, through their lawyer will make an opening statement. This will be followed by the defendant insurance company to make their opening statement. The Plaintiff will generally have the right to reply. These opening statements can be very brief, or can be lengthy. It all depends on the facts of the case, the parties involved and the style of the lawyers on the case.

After the opening statements are completed, then the parties will break out in to their own rooms. These are called “break out rooms”. The accident victim and their lawyer will be in Room A. The insurance company representative and their lawyer will be in Room B.

The mediator then goes in between rooms and takes offers, counter offers and messages back and forth in between rooms. Think of it as a game of tennis or ping pong, with the mediator acting as the ball in between rooms, with each side sending that mediator back to the other parties’ room with a message or an offer.

The Plaintiff will generally start with a high offer. The Defendant will start at a very low number. As the day progresses, if all goes well, those numbers will get closer and closer together, until the parties are each unhappy such as they agree on a specific number to resolve the claim.bird.png

Many clients want to know how long a mediation can take. Mediations can be booked for the whole day (10-5++) or a half day (10-1 or 2-5). It all depends on the case. Just because a mediation is booked for the entire day doesn’t mean that it will take the entire day. Sometimes a case might settle before lunch. Sometimes it might take all day for the case to settle. Other times, it might be so apparently clear that the parties will never get close enough together that the parties agree to cut the day short and to fail the mediation. Again, it all depends on the case and the parties involved.

Clients want to know if they should bring their own food for the mediation. Many mediators arrange for lunch to be provided during the course of the day. The parties will have a chance to eat, but they generally work through lunch while in their respective break out rooms. There is also generally water, tea and coffee available to the parties so that you don’t feel like a prisoner during the day.

At any time, any party is free to leave their break out room to get some air, take a smoke break or use the washroom. Nobody is a prisoner to the mediation process.

At any time, either party can stop the mediation process if they aren’t interested in resolving the case. There are inherent risks with going to trial which will be explained to you by your lawyer which you should be aware of should you decide to stop the mediation process.

What’s amazing about the process is that the parties generally start very far apart when it comes to numbers. In a successful mediation, those numbers get closer and closer together. This always seems to amaze many of my clients, but that’s just how the process works.

One of the final questions our clients have is if the case settles at mediation, do they get their money right then and there at the mediation after the case has settled.

The answer to that question is “no“. The Defendant Insurance company does not attend the mediation with a blank cheque ready to be cut, or a suit case full of cash.

What may happen is that the lawyer for the Defendant Insurer might ask the Plaintiff accident victim to sign a Release. This is a standard legal document stating that the case has settled. Once the Release is signed, the insurer will generally send a cheque to your lawyer within 10-30 days. But to be clear, you will generally NOT get paid immediately at mediation after the case has settled.

What happens if your case does not settle at mediation? That’s perfectly alright. Not ever case settles at mediation. If your case does not settle at mediation, then your case continues in the normal course. Generally, the next step after mediation can be Pre-Trial or perhaps medical examinations or another discovery. Either way, just because a mediation fails does NOT mean that your case is derailed. It continues to progress along the normal litigation course.

Can there be more than one mediation in a given case? YES THERE CAN! The parties can mediate as many times as they’d like. So, if the parties want to schedule a 2nd mediation because the first one failed, they can do so. This is sometimes necessary in multiparty actions, or when one party did not have proper authority or did not understand the inherent risks associated with their respective claims.

Who pays for the mediation? Each party pays for their share of the mediator’s cost. If there are two parties involved in the case, then each party pays their own way. In personal injury actions, a good lawyer will negotiate the deal in such a way that the insurance company will pay for the cost of the mediation if the case settles. This is significant because the cost of the mediation can be pricey for an good and in demand mediator ($5,000+++).

When is the best time to mediate? There is no best or worst time to mediate. As long as all of the parties come to the bargaining table in good faith, and all of their documents have been exchanged, then the mediation will be ready to go. If one party is not coming to the mediation in good faith, then it’s not good for the process. The problem with this is that it’s impossible to read the minds of others so you never know who is coming in good faith and who is not.

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