What is a mediation? How does a mediation affect a lawsuit? Not all injury lawsuits get to the mediation stage. Some may settle before that. A mediation in a lawsuit is a step that both sides agree to take in order for a speedier resolution and hopefully to have the lawsuit settled before going to court, which could take years.
Both sides agree on using a mediator. The mediator’s job is to help both sides come together and reach a settlement. Mediators are neutral and are there to help both sides reach an agreement. A personal injury mediation is a step before court, whereby both parties can speak directly to one another and are really able to share with the other side what their needs are. It really is a very valuable part of the litigation process and typically results are fair. Most accident victims find that because of the mediation process, they are able to avoid dragging out their personal injury case and avoid going to court. I have found that almost all personal injury cases truly benefit from the mediation process.
Before going to the mediation, lawyers are required to prepare the mediator with the facts from their case. Both sides will prepare their own version of this document known as a “mediation brief.” The mediator will typically begin the mediation by stating the facts, as they know them and then turn the floor to the lawyers, who each get a turn to make their opening statements to both the mediator and the other side. In a personal injury case, the other side is the insurance companies’ lawyer; not the individual driver.
In Ontario, clients must be present at the mediation; however, they are not required to speak. Their lawyer is there to represent them and speak on their behalf. Many accident victims like the fact that their lawyer speaks for them; while others do not. At a mediation, the client is able to speak whenever they feel comfortable, they just don’t have to. This includes answering any questions from the insurance company. The insurance company does not have their client there. In fact, in most cases, the other driver is completely uninvolved in the lawsuit and has no idea as to what amounts or details there are in the case. The settlement cheque does not come from the driver, it comes from the insurance company. The insurance company also does not report back to the driver the amount that was reached at settlement.
Once all of the information has been presented by both lawyers; both sides will typically break off in separate locations to discuss freely and openly what offers they will accept and what offers they would like to make in the hopes of settling the case. The mediator will flow back and forth between both rooms and offer counsel and suggestions to help both sides reach an agreement.
Most injury cases will settle at the mediation stage but not all do. In the case where it does not settle, the mediation process still helps forward the case along as both sides were able to share information and truly get a sense of where the other side is coming from. Sometimes, the mediation allows both sides to leave with some time to think about things and then over the course of the next little while, they are able to reach a resolution, as they have had some time to let things settle and they have had time to simply think. And that is a good thing.