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Personal Injury Mediation: Is there a method to the madness?

99% of personal injury cases in Toronto settle outside of the Courtroom. That means that of all of the personal injury actions started in Toronto, only 1% of them ever go to trial.

So, how do the other 99% of personal injury cases in Toronto get resolved? Some settle at the insurance adjuster level. Others settle between the plaintiff personal injury lawyer in Toronto and the lawyer for the insurance company. This can be done by way of without prejudice settlement proposal or by way of a simple phone call. Other cases might settle with the assistance of a Judge at a Pre-Trial. A Pre-Trial is a without prejudice settlement conference before a Judge, often in chambers so NOT in Courtroom. The Judge will attempt to narrow the issues before the trial, might try to resolve the case, and if the Judge is unable to do so, that Judge may provide his/her opinion about the personal injury case.

In Toronto, mediations are mandatory for all personal injury cases. That means that all car accident cases, slip and fall cases, long term disability cases,, chronic pain cases, spinal cord injury cases, and any other personal injury action started in Toronto will have to be mediated before it can go to trial.

A mediation is a without prejudice, private, confidential, settlement conference involving both the plaintiff, the personal injury lawyer Toronto, the lawyer and adjuster from the insurance company, and a neutral, impartial personal injury mediator.

The mediator can be anyone. The mediator is often a non-practicing lawyer who has knowledge and specific knowlege of personal injury law. The mediator’s job is not to be on anyone’s side. The mediator’s job is to bring both of the parties together to acheive a settlement.

A mediation will begin with openings from all of the parties. During the opening, the lawyers for the parties will give their brief version, or highlights of the case which they want the defendants to pay attention to.

After the openings, the parties are divided and sent into separate caucus rooms. From there, the parties lob settlement offers for the personal injury Toronto case back and forth using the mediator as a conduit between caucus rooms based on the parties’ percieved values of the case. Example:

Toronto Brain Injury Accident Victim Offer #1: $1,000,000 plus legal costs
Insurance Company Counter Offer #1: $25,000
Toronto Brain Injury Accident Victim Offer #2: $800,000 plus legal costs
Insurance Company Counter Offer #2: $50,000
Toronto Brain Injury Accident Victim Offer #3: $750,000 plus legal costs
Insurance Company Counter Offer #3: $100,000

And so goes the process, until the parties reach a settlement. If the parties are so far apart that they cannot reach a settlement for the personal injury law case Toronto, then the mediation will fail, and the case goes on. But if the parties are able to reach a number which the parties can both agree to, then the case will settle.

There is a method to this madness. The Plaintiff personal injury lawyer Toronto will often start very high, while the lawyer for the insurance company will often start very low. With each round, if the parties don’t get gradually closer together, then it’s very likely that the parties will not settle the personal injury case at mediation. But, if the parties get closer and closer together with each offer/counter offer, then a settlement for the personal injury Toronto case will be more likely.

Advice at mediation: trust your personal injury lawyer. They know best. They know the mediation process better than you do. They understand the law of damages better than you do. Example: You need to present realistic numbers at mediation. If you don’t present realistic numbers at mediation, the insurance company will not take you or your personal injury case seriously. Example: If you haven’t reported any income for the past 5 years, but you’re seeking $500,000 for loss of income over the past 5 years, that doesn’t make any sense. Just like asking ffor $1,000,000 for damages in pain and suffering damages doesn’t make any sense because this is not allowed at law in Canada given the cap on general damages/pain and suffering damages in Canada. Making unrealistic offers will be returned by insurance companies with counter offers of zero.

Sometimes it’s wise to settle at mediation. Other times it’s not. It all depends on the facts, and circumstances of your case. Every personal injury case is different.

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