What is personal injury mediation?
At Hemminger Law Group Westshore our lawyers have a lot of experience with mediation in our clients' personal injury and other legal matters.
When a person has a lawsuit where they are seeking compensation for injuries they have received by way of a motor vehicle collision, slip and fall accident, or bicycle accident, they may pursue personal injury mediation as part of the process towards settlement.
Such mediation occurs you and your lawyer as well as the Defendant (most often a representative from the insurance company) and their lawyer meet with the assistance of a qualified mediator in an attempt to settle dispute instead of going to trial.
The mediator cannot make a decision as to how the dispute is to be resolved. They are a neutral party. Their job is to assist in getting the parties to communicate so that settlement can be reached. Often in personal injury mediation the mediator is a lawyer with a background in personal injury law. Although the mediator cannot make a decision for the parties, they may give the parties recommendations in terms of whether or not they see an offer as reasonable.
Mediation is utilized for two principal reasons. First
of all, the parties may end up settling the case. This method is a cheaper,
quicker and less stressful method of resolving disputes than proceeding to trial. The second reason why we,
at Hemminger Law Group Westshore, like to do personal injury mediation is because it has the extra bonus of working really well as trial preparation.
It is great trial preparation, because it provides an opportunity, often for the first time, to get a really good look at our opponent’s case. 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 own case may have weaknesses. Mediation assists us because we often get to see our case in a broader and complete context.
It is way better to learn that our case has a weakness or the other side has a certain strength at mediation than in the middle of a trial!
In personal injury mediation, the lawyers on each side of the case will choose a mediator. A lot of mediators are registered with the BC Mediation Roster in British Columbia.
When preparing for mediation you, your lawyer, and their team (maybe an articled student, paralegal, or other legal assistant) will begin preparing for the mediation by drafting a document entitled a “Mediation Brief.” The mediation brief sets out the facts of your case in terms of how the original accident or injury was caused. 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 the amounts you are claiming for damages for your particular claim.
When preparing for your personal injury mediation your lawyer will let you know what the process looks like. It most often takes course over the course of a 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, parties will be 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 a mediation is “without prejudice.” If the parties do not settle, that means if various offers are given back and forth between the parties, those offers cannot be mentioned outside of the mediation room. The offers made at mediation cannot be used or mentioned in court.
The without prejudice nature of mediation allows parties to negotiate freely without worrying about anything being used against them in court later. For example, if an offer to settle was made for $100,000 at mediation, but a party’s official position changed at trial to less than that, nobody could say to a judge “but they already offered $100,000 at mediation.”
It is important to know that if a case settles at mediation it is often the case that neither party comes out feeling like they got everything they wanted. Some would say that this is the sign of a good mediation. Both parties go away somewhat happy with the result while at the same time somewhat unhappy with the result.
If you have a personal injury matter and would like some legal advice, please at Hemminger Law Group Westshore. We will give you a half hour free consultation.
By Val Hemminger, personal injury lawyer