Mediation is the best trial prep ever. Full stop.
First of all, let's talk about what the process is. In personal injury matters, is really, a professionally guided negotiation between the opposing sides of a case. Typically, there are five players in the room. There is the lawyer for the insurance company, an employee from the insurance company, the plaintiff (also known as you, the client), your lawyer (also known as us), and the mediator. Your mediator will be trained in dispute resolution skills.
The mediator's job is to try to get both parties to resolve the matter and settling without going to trial.
At Hemminger Law Group Westshore, we like this process for two big reasons. First of all, we might end up resolving your case. From the client's (and their lawyer's) perspective, this method is quicker and less stressful than proceeding to trial. Mediation can be over in one day, while a trial easily lasts five to ten days.
The second biggest reason why we, at Hemminger Law Group Westshore, like to do this process in personal injury cases is because it serves as very effective trial preparation.
This negotiated process provides an opportunity, often for the first time, to get a really thorough look at our opponent’s case. The thing is, we have an adversarial legal system. Lawyers are trained and skilled at preparing their own clients’ cases. Sometimes lawyers do not have a great appreciation for how good the other party’s case may be or appreciate where their case may have weaknesses. Such a negotiation assists everyone in this way.
It is way better to learn that our case as a fatal challenge during the negotiation process rather than in the middle of a trial!
Your lawyer and the lawyer on the opposing side will choose a mediator.
When preparing, your lawyer, and their team (maybe an articled student or paralegal) will begin preparing by drafting a document entitled a “Mediation Brief.” The Brief sets out the facts of your case regarding what caused the original accident. It will describe what your injuries are and how they have affected your life. Then it will describe what your doctors say about your injuries. Finally, it may mention some legal cases already decided by the court where injuries were similar to yours. Finally, it will set out what you are claiming for damages, that is, how much money your lawyers say you are entitled to settle your claim.
When preparing for you for the negotiation, your lawyer will let you know about the process. It usually takes a full day and is not held at the courthouse. It is often relatively informal in that the parties sit around a table. There are no stringent procedural rules. However, we are all asked to speak respectfully to one another.
The parties will sign an “Agreement to Mediate” which has the parties agree that all the communication within the negotiation process is “without prejudice” if the parties do not settle. In essence, that means if various offers are given back and forth between the parties, those offers cannot be used against either party outside of the room, that is, in court, for example.
It allows parties to negotiate freely without worrying about anything being used against them in court later. For example, if we made an offer to settle for $100,000, we can change our official position at trial and ask for more. The other lawyers cannot then say, “but they agreed to settle for $100,000 at mediation!”
It is important to know that if a case settles, it is often the case that neither party comes out feeling like they got everything they wanted. Some say that when everyone walks away slightly unhappy, this is the sign of a good agreement!
By Val Hemminger, lawyer at Hemminger Law Group Westshore
Hemminger Law Group Westshore - Lawyers with heart! Providing Family law and Personal Injury law services to the Westshore and beyond (Langford, Westshore, Colwood, View Royal, Sooke, and Victoria)!