Mediation can be a very nerve wracking experience; although it shouldn’t be.
But I get it.
For the majority of Plaintiffs involved in a personal injury case, it’s your first time participating in a mediation. You don’t know how a mediation works, what to do, what to wear, what to expect, or how long the mediation will take place that day.
Your personal injury lawyer should prepare you for these questions and fears, but no amount of preparation will get you ready for the real thing. You have to do it, and go through the highs and the lows to really know it.
It’s important to know at mediation, there is no Judge; no Jury; no recording devices. You cannot “win” or “lose” at mediation. The case will either settle, or it won’t settle. Sometimes, even when the case doesn’t settle, it may resolve shortly thereafter because the parties have sought additional authority, or have had some time to let the position of the other side sink in. Either way, there is no Judgement or Verdict coming out from the mediation process.
We recently attended a mediation which I will long remember. And the reason which I will remember it is not because of the uniqueness of the case; the interesting or aggressive parties involved, or the charisma of the mediator.
The reason I will remember the mediation is because the case settled for reasons which have absolutely nothing to do with the law, and have zero legal merit on Ontario.
If you’ve never participated in a mediation, you may think that all day the personal injury lawyers, insurance defence lawyers, insurance adjusters and mediators argue, debate and discuss points of law to see who can one up each other.
In some mediations, this rings true.
But in other mediations, points of law aren’t discussed as much as you would think.
A recent mediation I was on, the mediator talked about everything BUT the law, and everything BUT the case at hand. This seemed odd. And it was. But there was method to the madness; and that method achieved some fantastic results.
The mediator discussed non threatening topics, and topics that were easy to relate to like astrological signs, the British Royal Family, favourite dog breeds, fashion, the Toronto Blue Jays, banana bread and other baking tips.
None of these topics had anything to do with the personal injury case at hand.
But these topics were crucial towards getting the case settled at mediation.
These trivial, non legal topics were used as a tool to break the ice with my clients. And those ice breaking topics were an effective tool at that.
The personal injury lawyer and mediator are naturally comfortable with the mediation process. Clients on the other hand, no matter how much they read about mediation, no matter how prepared they are, will never be as comfortable because it’s their first time going through the process and it’s their case/life which is the topic of the day. When this is your shot at getting your case settled and setting up your financial livelihood for the rest of your life in many cases, it’s no wonder that the client will be nervous.
When the clients got comfortable with the mediator, comfortable in the room and comfortable with the mediation process; they were more susceptible to listening and understanding the pros/cons; risks/rewards of their case and going through trial. They were less guarded in making offers, and receiving offers. Mediating with a guarded and uncomfortable party is going net any sort of fruitful settlement. A guarded party will be too rigid to listen to compromise. Sometimes there is cause to be so rigid to compromise and not go to trial. But if you are seeking a settlement out of Court, the only way towards achieving that settlement is compromise. If the insurance company agreed with all of your points and liked your case, your case would have settled by now. Likewise; the insurance company would have caved to all of your demands, and you would not have needed a personal injury lawyer in the first place.
For all of the parties in the room, it’s the Plaintiff Personal Injury Client who is likely experiencing mediation and the litigation process for the first time. They have the most to lose, the most to gain, and will be impacted the most by a win, loss or settlement. A win or loss for an insurance company won’t hurt. Insurer’s have no feelings and have limitless resources. A million dollar judgment against them sounds like a lot of money, but this is a drip in the bucket for a large multinational publicly traded insurance company who reports profits in the hundreds of millions, if not billions of dollars.
The lawyers will be effected by a win or a loss, but they will move on as all good lawyers do. There are other cases to be tried, and other clients in need of assistance to help the lawyer move on.
But for the Plaintiff personal injury client, the case is very personal. This is why it’s so important for the Plaintiff to have a clear mind set and be in a comfortable place during the mediation. That way, the Plaintiff can make coherent and rational decisions without having to worry or stress.
And it’s for this very reason that all of the talk about astrological signs, the British Royal Family, favourite dog breeds, fashion, the Toronto Blue Jays, banana bread and other baking tips worked at mediation. Those ice breaker topics paved the way for a smooth day, and helped my clients be more receptive to other ideas and points of view to facilitate a settlement.
We all wish that law was an exact science. The practice of law would be much easier that way because everything would be so objective. But it’s not. The law is about people and people can be funny creatures at times. This is also why mediation doesn’t work through a computer where one party puts in their “best” offer, and they see if a deal can get done. This experiement was tried long ago through the Financial Services Commission of Ontario (FSCO) and it failed miserably. The law is set up so that people have to interact with other people. This is why in person settlement meetings happen, pre-trial conferences and mediations happen in person as well. Trials are still done in person with viva voce evidence in front of live people. Robots have not replaced the litigation process, nor the mediation process. And that’s why non legal ice breaking topics can be such effective tools in a legal mediation setting.