What is personal injury mediation?
At Hemminger Law Group we have a lot of experience with personal injury mediation.
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.
It is when 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 cheaper, quicker and less stressful than proceeding to trial. The second reason why we, at Hemminger Schmid, like to do personal injury mediation is because it works as really good 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 in this way.
It is way better to learn these challenges at mediation rather than in the middle of a trial!
Your lawyer and the lawyer on the opposing side will choose a mediator. A lot of mediators are regstered 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 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 what you are claiming for damages, that is, how much money you feel you are entitled to in order to settle your 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. In essence, that means if various offers are given back and forth between the parties, those offers cannot be mentioned outside of the room, that is, in court, for example.
This 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 “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 where 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 contact us at Hemminger Law Group.
Return from personal injury mediation