Follow these top 7 mediation tips for great results.
Most people agree that doing mediation is way better than going to court. It is over faster, and is way, and we mean, way less stressful. Because there is no guarantee that mediation will settle your case, however, you want to ensure that proceeding to mediation is a good use of your time. There are things both you and your lawyer can do to increase the likelihood of settlement from mediation.
Let's talk about Susan. Susan, at 55 years old, was injured in a car accident when she was rear-ended while sitting at a red light. Susan has what we call whiplash, or soft-tissue injuries. Although Susan's soft-tissue injuries were significant, she fared much better than the person who hit her, as the person who hit her, was even more seriously injured with many broken bones, and was in a coma for a number of weeks. Since the collision Susan also has been diagnosed with post traumatic stress disorder (PTSD).
Susan is not only terrified about driving now, she is very anxious about lots of other things in her life. While Susan was not always the most resilient of people, things have taken a terrible turn for her since the collision. She has taken leave from her work as a teacher due to being unable to cope with the stress of teaching children. She is now worried that she will not be able to return to work. Susan's doctors, including her psychologist, say that Susan is suffering from PTSD and that this may continue on a long-term basis.
ICBC's lawyers say Susan should "suck it up" and get back to work. Susan's lawyers think that Susan's personal injury claim includes her wage loss for the remaining 10 years of her planned teaching career. Susan's lawyers want Susan to have compensation if she is unable to work again. ICBC's lawyers are digging in and refusing to give Susan any compensation for her loss of future wages.
Susan has great lawyers. Susan's lawyers will spend time with Susan preparing her for mediation. They will discuss with Susan the up-side of her case, in terms of what it will be "worth" should Susan not be able to work in future. They will also talk about the down-side. That is, if they go to trial, and a judge or jury does not think Susan is entitled to future wage loss.
Susan's lawyers will have all the necessary reports setting out what Susan's doctors say about her injuries and PTSD.
This is what coming prepared for mediation is all about.
Because Susan's lawyers are marvelous (we think so anyways), they have prepared a mediation brief. The mediation brief sets out (in a brief, format, get it?) what Susan's injuries are, how they have affected her, and what she is claiming for each part of her damages claim.
Susan has worked with her lawyers to set out exactly what her position is in terms of what she is willing to settle for under each head of damage for her case. Her lawyers have also done the legal research setting out the case law and awards that courts have made in cases similar to Susan's.
Because Susan has great lawyers (did we mention really great?), they have made sure that they have gathered all of the necessary information in advance of mediation. What the mediator, and all the lawyers know, is that if all the information is gathered and ready to be reviewed and considered at mediation, the likelihood of settlement is greater. Nobody wants to waste their time by attending a mediation where people are not well prepared.
For example, Susan's lawyers have gathered all of her income tax information, and have gotten an expert opinion as to the future wage loss that Susan is potentially facing. They have also gathered all the medical evidence, including the expert opinion that Susan's PTSD diagnosis is keeping her from returning to work.
Susan's lawyers want to make sure they are not wasting their time at mediation. There is no point doing a mediation unless the people engaged in the process have the authority to give Susan a cheque.
A person with authority to settle is someone who can make a legally binding decision without having to talk to their boss first.
Just because mediation is less stressful than court, does not mean it is not VERY DIFFICULT and challenging. It is hard sometimes, and we mean really hard, to hear the other side’s perspective. If you think they are dead wrong about something, do not interrupt them. Let the other side say their piece.
Before jumping in with your response, take a breath. Also, ask if you may respond before doing so. A skilled mediator will allow you to have your say before the day is through. So, you will not have to worry about jumping in. Know you will get to have your say. Taking at least a long deep breath (although challenging in the moment) will keep the conversation at a calmer level.
Susan's lawyers have told her to remember that she is at mediation to put an end to her case with a fair result. For this reason, she wants to do her part to keep the mediation on track. If Susan rolls her eyes when someone speaks, or makes sarcastic gestures, it will only detract from her case.
We believe that coming prepared to mediation is so important that we mentioned it twice! The best thing Susan and her lawyers can do to make sure their day at mediation is a success is come prepared. They should be prepared by knowing their case, prepared by doing their legal research, and be prepared by keeping an open mind in settlement discussions.
Written by Val Hemminger, personal injury 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)!