By Matt Lalande in Articles on October 27, 2020
A mediation represents a unique opportunity to bring conflicting parties together to achieve a mutually acceptable resolution of all issues and to facilitate the resolution of a lawsuit.
For many conflicts, getting to the mediation is simply a matter of agreeing to mediate, identifying a mediator, and meeting on the day of mediation. However, the great majority of disputes need a certain amount of preparation. That preparation includes choosing a mediator, exchanging information between parties, providing the mediator with the position statements and preparing yourself for the mediation. In the area of complex or multiparty mediations, even greater preparation is required. This involves not only preparation by your lawyer of your case, but preparing with the mediator and the opposing side by exchanging all relevant documentation and mediation briefs well in advance of the mediation.
You and your lawyer should approach mediation prepared while thoughtfully keeping in mind the ultimate objective you want to achieve. Preparation and organization are the key to a successful mediation. Mediation can be rewarding and satisfying (and relatively low stress and low cost) means to resolving a lawsuit.
Usually the best time for mediation is once examinations for discovery have been completed although this may not always be the case. In disability cases, experienced counsel are often fully aware of contractual entitlements and litigation risk on a case and are able to bring cases to a close, sooner.
You and your lawyer will attend the mediation, as well as the defence lawyer and insurance company adjuster. The adjuster or claims handler would normally meet with superiors or with the committee within his company to obtain authority for the mediation to settle your case. The more information your lawyer provides, the more likely he is to obtain appropriate authority.
Your lawyer will prepare a mediation brief that highlights your medical conditions, impairments, chronic illnesses and will summarize your treatments since the date of onset of injury or disability. Your lawyer will also summarize the reports from experts that he or she has obtained, as well as the risks that that insurance company has in your case. The mediator, defence lawyer and the insurance representative will have a complete copy of your mediation memoranda that your lawyer prepares, prior to attending the mediation, as you will theirs.
Mediators will normally be suggested and discussed between your lawyer and the lawyer for the insurance company. It is important that your lawyer consider an experienced mediator who will be trusted and liked by both you and the insurance company. Your lawyer will more likely than not have a preferred list of mediators that they know and have used in the past, as most insurance companies now do. It’s also important to understand that the most popular mediators are frequently booking more than a year into the future.
Normally the cost of the mediation is split between you and the insurance company if your case does not settle. If the case settles at mediation, then the costs is normally paid by the insurer.
To the extent that the discovery process is not complete, it is vital that an expedited exchange of information and documents takes place prior to the mediation. Experience lawyers with reasonable clients can evaluate reasonable goals, and can achieve common ground if they are looking at the same information. Thus, all documents should be orderly exchanged to the extent this has not been done previously. To the extent that statements or discovery evidence must be obtained, that too must be done before the mediation in some cases.
You should also meet with your lawyer to discuss the process in order to disarm any anxiety that you and your family may have. Also, it gives you a chance to preview the responding (defence) mediation brief, discuss the settlement value of your case, and discuss with your lawyer what net settlement ranges may look like that are payable to you, and whether or not a structure should be involved.
Knowing the realistic value of the case is very much an acquired art by your lawyer as how to properly build, assess, negotiate and effectively resolve your claim at mediation or otherwise. To properly value your case your lawyer will need to look at many things from many different angles, such as how your case would fair at trial, your credibility, your medicals, your medical history, your age, your disability, your education, training and experience, your loss or impairment of life, loss of lifestyle, your psychological or emotional suffering, your injuries, who the insurance company is and how your experts have assessed your future, clinically.
In personal injury and insurance cases, math, accounting, taxation and present value calculations are critical to understand – and if you don’t have the right lawyer that is highly experience in personal injury cases, then settlement might be a problem and issues may be overlooked. It’s important that your Hamilton personal injury lawyer understand the necessary concepts and components of a claim and how they fit together and move and change as negotiations unfold at mediation.
Consider the following:
• Income replacement benefits (IRBs): deducted before or after contributory negligence?
• Future loss of income and issues of ongoing IRBs;
• Long-term disability benefits (LTD): are they flat or indexed? If indexed, at what rate?
• What is an appropriate discount rate on a disability case?
• Is the discount rate applied before or after the present value of your benefits?
• How is your future CPP valuated, and how does that play in to your disability settlement?
• What is the appropriate discount rate for IRBs?
There will be opening statements made by both your lawyer and the other lawyer at the start of the mediation. In your opening statement, your lawyer will highlight your case, while outlining the insurer risks. Your lawyer’s audience is the insurance adjuster, while the defence lawyer’s audience will be you. You will no doubt have a talk with your lawyer prior to the mediation concerning the defence opening, which, like the plaintiff’s, will outline the defence case, your credibility, any surveillance or investigation that might hurt your case and your risk in putting your case to a Judge or jury. Avoid the temptation to denigrate or get angry with opposing counsel when they do their opening. It is part of the process. Matt Lalande has been conducting mediations since 2003, and believes in the principles of primacy and regency – or in other words – start and finish with strength or with what matters most. It is important that your lawyer does not ignore your weaknesses in the hopes that the opposition will overlook or forget them.
After opening statements, you and your lawyer will separate from the insurance company lawyer and his/her adjuster. You will go into different rooms. There’s no doubt that if you have hired our firm, we will have a good understanding of the value of the claim and be prepared to negotiate. You may, throughout the day witness tactical considerations and lengthy delays in responding to demands. As for quantum of settlement, an experienced personal injury lawyer will tell you that there is no right or wrong approach or formula. The change in the quantum of your offers depends on a number of factors:
• Percentage changes.
• Gross dollar changes.
• Strengths/weaknesses of the component parts of the claim.
• Overall total value of the offer.
The key to a series of offers is NOT to reach for pie-in-the-sky numbers, but rather, to project to the defence or to the mediator where you are going and where you are seeing the settlement value of your case. Throughout the day there will be back and forth offers which will increase by defence and decrease by the plaintiff, in order to find some common ground.
It is often said that a successful settlement is when you accepted too little and the defence paid too much.
Also, you may see numbers that are broken down into different heads of damages that you are claiming, such as pain and suffering, past wage loss, housekeeping losses, health care expenses, future wage losses, management fees, and family companion action losses. These numbers often move into an “all-inclusive” number – which means that the number is a so-called “lump sum” that is paid to your lawyers law firm – and will be broken down into costs, legal fees, disbursements and the net amount to you, or provided into a structured investment. Don’t worry – this is absolutely normal. The key to understanding is to do the math with your lawyer and ask him to provide you documentation that will detail exactly how much money you and your family will receive should the all-inclusive settlement number be accepted.
Case closing documentation will be prepared, most likely at the conclusion of mediation (defence lawyers normally prepare the draft forms and have their assistants email or fax them over). The typical documents required to close your case are normally:
• Full and final releases – which is an acknowledgement that you have agreed to settle your case against the defendant(s);
• Releases and settlement disclosure notices for accident benefits claims if your own insurer attended the settlement;
• Consents to dismissals – given by your lawyer to the opposing lawyer that he/she agrees to a formal dismissal of the case in Court and;
• Minutes of settlement – which outlines the settlement that the parties arrived at.
It’s important to have courtesy. Remember – when the defence lawyer or the insurance adjuster is speaking – do not look at your watch or phone. Do not look upset or mad. As disappointed as you may be, try to look at the other defence lawyer periodically when he is making his opening statement. Show him or her you are listening. We guarantee that even though he/she speaking is critisizing your case, that lawyer and his or her are there to settle the case just as much as you are. Also, If you choose to speak (the mediator will offer you a chance) direct your comments, with kindness and respect, to the person who you want to motivate and influence. Seldom is this person the mediator.
You will have an easier time at mediation if you can have civil, cordial or amiable relations with defence counsel and insurance adjusters. If you show up angry at their insured for hurting you or your family, you might not be able to put those emotions aside and be able to understand the proper approach to mediation, and understand the benefits vs. risks of settling your case.
If you have any questions about mediation, or need assitance with mediation in your case, call us nationwide at 1-844-LALANDE or local in the Hamilton – Toronto area at 905-333-8888 and we would be more than happy to speak to you about any questions or concerns you may have.