Most personal injury cases settle before going to trial. One way that a case can settle is by mediation. But what is mediation and how does the process look?
A mediation is a form of alternative dispute resolution where a third party, often a mediator, leads discussions between the plaintiff and the defendants of the claim and their lawyers. The goal of mediation is finding a mutually agreeable settlement to avoid future litigation like pre-trial and trial. The mediator does not impose settlements but instead facilitates discussions to reach a common resolution between parties.
During this process, the mediator does not provide a decision as a judge would in trial. Instead they are there to facilitate settlement discussions between parties with the goal of reaching a mutually agreeable resolution.
In some Ontario jurisdictions like Toronto, Ottawa, and Windsor, a mediation is mandatory prior to a pre-trial conference. Despite some jurisdictions not requiring mediation, it is common for lawyers to suggest this process as it is a common way to reach a settlement agreement all while avoiding the expense and uncertainty of a trial.
After the COVID-19 pandemic, most mediations are now held online via platforms like Zoom. Once all parties are in the Zoom call, the mediator will introduce themselves, explain their role and the purpose and process of mediations. All parties will have the chance to give opening statements and present their position based on the evidence, facts, and law.
During opening statements, the plaintiff’s counsel will have the opportunity to outline the basis of the claim in question and describe the severity of the plaintiff’s injuries. At this time counsel may also state their anticipated settlement amount. When plaintiff’s counsel is finished with their opening statements, defence counsel will have an opportunity to offer their alternative understanding of the circumstances.
After opening statements, each side will be separated in order to conference amongst themselves independently. If the mediation is done via Zoom, the parties will be separated into breakout rooms where the mediator will then periodically enter each side to begin negotiations. The mediator will continue going back and forth from parties until a settlement is reached or until one or both parties opt to leave the mediation or if the time runs out and a settlement has not been reached. If the claim doesn’t settle at this stage, the next step is pre-trial.
Often people are nervous prior to attending mediation but it is important to remember that the process is informal and that your lawyer is there to represent you and lead the process.
Article by: Stephany Ginzburg