What is this document about?
What is mediation?
Why is it safe?
How do parties present their views and the information to support them?
How do the parties move from presenting conflicting information and perspectives to finding a common resolution?
When is a settlement fair?
How do I know that the mediator is neutral?
What is the most important thing to remember in a mediation?
If you are like most plaintiffs, you have never been through a personal injury mediation before. You know it’s important, but you don’t know exactly what is expected of you or what you can really expect from the process. The mediator does not act as a lawyer and therefore does not provide legal advice on the specifics your case, but the mediator is responsible for implementing a process that will give all parties the best opportunity to hear and be heard. What follows here are some of the ‘truths’ about the mediation process that I have learned over the last fifteen years of being a mediator. I do this here in the hope that providing this information to you in advance will assist you in making the most of your mediation day.
When reading this, remember that mediations are informal processes that are modified to meet the individual needs of the parties at each mediation. What I present here is the general way things unfold. Differences may occur in your particular mediation based on what may be needed at the time.
Mediation is a safe process where the most complete range of settlement options available at the time can be developed and acted upon. This is done by ensuring that everyone
- gets the opportunity to present their perspectives and the information that supports them
- has the opportunity to put all of those perspectives and information together to provide a complete picture of settlement options
- has a private space to make informed decisions about whether or not to accept the best available option
- all parties to your mediation sign a written contract at the outset agreeing that if it doesn’t settle, then nothing that takes place during the mediation will form part of the official court record if your case is litigated.
- Neither the mediator nor anyone else can impose a settlement on the parties. Any agreement reached requires your consent.
- An essential part of my job as mediator is to ensure that you have private time with your counsel to obtain legal advice before making any important decision throughout the process.
The effect of these three elements is that if, at the end of the day, after receiving advice from your lawyer, none of the settlement opportunities presented during the mediation are acceptable to you, you are free to continue with the litigation as if the mediation had never taken place. Nothing that you said during the mediation can be entered into evidence. None of the bargaining positions adopted by you during the mediation continue to be legally binding once the mediation is concluded.
Before the mediation there is usually a lot of information exchanged. Writs are filed, documents are exchanged and oral discoveries are held. Oral discoveries are the formal meetings where the lawyer for the other side asked you questions under oath and your answers were officially recorded and are able to be entered directly as evidence at a trial.
Finally, just ahead of the mediation the parties exchange statements of their positions coming into the mediation. These statements, like all other communications within the mediation environment, and in contrast to all other information developed, are not available for trial.
On the day of the mediation, after you have had a private meeting with your lawyer, and then another with the mediator and your lawyer, you will be part of a larger meeting where the insurance representative and their lawyer will also be present (the joint session).
The two lawyers, yours first and then the one that acts for the insurance company, make opening comments. These are generally to illustrate how, if the matter does not settle through negotiations, each side would approach a trial.
Trials are extremely adversarial processes, so a statement of how one might proceed at trial will often sound adversarial. All that is required of you at this point is to listen carefully. This will help you get some idea of what the trial option would look like.
After the lawyers have finished their opening comments, the insurance representative may make a few comments and ask a few questions. These comments and your answers to the questions may introduce a wider range of options for settlement than may have been indicated by the opening statements.
When answering questions, all that is required of you is to provide your personal perspective on who you are and what has happened to you as a result of the accident event. Speak from the heart. Stick to facts you know first hand. Be as accurate as you can, but take some comfort in knowing that everyone accepts that human memory is not perfect.
Once the joint session is finished the parties physically move to their private rooms (caucus rooms); they shift from communicating directly to sending messages through the mediator; they focus on offers of settlement rather than statements of position.
You will work in private with your lawyer to make informed decisions as each offer is presented.
Sometimes the mediator will participate in those private discussions about what the appropriate response might be. When this occurs, anything the mediator hears remains confidential unless you and your lawyer give the mediator permission to transfer specific information to the other side. Ultimately, the mediator can offer up points for consideration but it is up to you to make decisions, on the advice of your legal counsel.
I recommend that while you don’t lose sight of any bottom line position that you may have formulated prior to the mediation, you keep an open mind to the possibilities that may arise at the mediation.
The nature of mediations (and human bargaining in general) is to arrive at a final position in stages. This allows everyone to consider the problem over time and from different angles, and in the context of a narrowing gap in positions. This often means that several offers of settlement will be exchanged before the most realistic option is identified.
Eventually, when your lawyer is confident that the bargaining process has made every safe dollar available for your consideration, control will shift to you. It will be up to you at the end of the day to accept the ‘final’ offer or to continue with the litigation.
They do this by moving from expectations to objective analysis.
What a claim is worth in the view of the person living a trauma and suffering the loss is never going to be the same as the person who is reading about it under an obligation to pay.
In the beginning of the bargaining, I find that what usually separates the parties in their positions isn’t in a variation of the analysis of what will happen at trial but rather what they would like to happen at trial. For all parties, this forms the basis of expectations.
A realistic assessment of trial outcome is achieved when an objective analysis is seriously considered. Objective analysis is simply allowing for the fact that some perspective other than your own has at least some validity.
The chances of resolution improve as all parties make offers that progressively move from expectations to objective analysis. The structure of the mediation, through access to legal advice, a constructive place to share ideas, and a quiet place to think, provides the opportunity for this sort of progression in thinking to occur.
So moving from conflict to resolution requires
- a shedding of expectations in favour of an objective analysis of trial outcome
- taking into account the most complete collection of information and views available
- receiving and listening to legal advice,
- having a quiet place in which to consider options.
Nothing can undo the fact the accident occurred. Money therefore becomes the less than perfect medium through which to address your loss.
In my 44 years in the business of personal injury claims settlement I have never yet met anyone genuinely injured in an accident that would opt for the money over not having had to suffer an injury in the first place. By virtue of that observation I can confidently say that money, in whatever amount, falls short of true compensation.
Additionally, while a settlement will give you some certainty around financial matters and will eliminate the specter of litigation, it won’t cure you.
Being part of the process by which the specific amount of money representing settlement is determined can however go a long way towards a healthy resolution of your insurance claim which is an important step in your recovery from your injuries. You can’t separate the mind from the body.
The most important part of a settlement is that it be fair and so it helps to understand how fairness may be defined. The best definition of ‘fair’ in the world of civil litigation that I know is:
what a legally knowledgeable person with no vested interest in the outcome, a judge, might award having heard the evidence in a fair manner, a trial.
Having said that, it’s worth noting that trials are highly adversarial procedures involving many human beings including judges, lawyers, expert and lay witnesses and others. As with all things dependent on human interaction, trials are not given to precise calculation. There will almost always be a range of potential outcomes. So fairness is not an absolute.
When negotiating against trial possibilities there are also personal factors that are unique to each set of litigants that also must be taken into consideration. The insurance company also has these considerations, but it is a worthwhile exercise for you to consider these ahead of the mediation from your own personal viewpoint.
In practical terms, there is value to getting the money now as opposed to later. This is the sort of assumption that life insurance companies operate on in reverse.
There is value to a willingness to embrace or avoid risk. This is what a financial adviser might take into consideration when offering clients more or less ‘aggressive’ approaches to investment options.
There is value to not having to go through the trial of a trial. Some people want their day in court, others see a value in avoiding it.
The settlement value that is practical and fair for you personally then depends on
- the value you personally place on these issues of timeliness, risk tolerance and conflict avoidance
- in the context of an appropriate trial award
While having no power to impose an outcome, the mediator potentially can have a significant impact on the exploration of available options. It’s important then that the mediator is neutral. Beyond me just telling you that, there are ways to be assured of my neutrality.
The first is that I have no history with your file, nor do I review the documentation intensively. I have therefore had no opportunity to get lost in the detail nor to become personally entrenched in one view or another.
The only time you will see me in any official capacity on your file is on the day of the mediation. As such I have no agenda for the future.
I am hired by agreement of both parties. Both parties take equal responsibility for the payment of my account. I owe my opportunity to earn income to both parties equally.
I get paid on an hourly basis. This means the amount you settle for has no bearing on the amount I get paid.
I get paid whether you settle or not. I therefore have no financial motivation to push you into a settlement.
Money is the medium of settlement of a personal injury claim. Eventually all the information and perspectives boil down to a single number. That number is not about right and wrong. It is no more and no less than an intersection of the ranges of each party’s private assessment of what they are willing to accept as an alternative to going to trial. If you find that magic number, it’s over. If not, you are able to continue on in the litigation unencumbered.
Again, the views of the injured party and those who read about it under and obligation to pay seldom reconcile. Thankfully, at the end of the day the only thing you have to agree on is a number.