This article describes the process of mediation of an injury claim and lawsuit. This article describes the process of mediation of an injury claim and lawsuit.
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What is Mandatory Mediation?

If you have a personal injury law suit you might be required to participate in mediation before the court will give you a trial date. Or, your lawyer might decided to participate in voluntary mediation.

Mediation is a form of alternative dispute resolution. It is a means for people to settle disputes or lawsuits outside of court. A neutral third party - the mediator - helps the disputing parties look for a solution that works for them. Mediators, unlike judges, do not "decide" the case. The mediator's role is to help the people involved in a dispute to negotiate with each other in a constructive manner, to gain a better understanding of the interests of all parties, and to find a resolution based on common understanding and mutual agreement. The purpose of mediation is not to determine who wins and who loses, but to develop creative solutions to disputes in a way that is not possible at a trial. The mediation process is informal and completely confidential. Parties in mediation may speak more openly than in court. Many people find mediation a more comfortable and constructive process than a trial. Under the court-connected mediation process the parties are require to select the mediator and then to provide that mediator with a brief outlining the case and the issues.

Usually personal injury mediations proceed with the mediator making some opening remarks about the purpose and goal of mediation. This is followed by both lawyers making opening statements.

The clients are required to attend the mediation, but are not required to speak. They are usually asked if there is anything they want to add. However, it is quite common for the clients not to speak in the open session.

After the opening statements, the parties usually retire to separate rooms where they exchange offers back and forth with the help and guidance of the mediator. It is often very surprising how much progress can be made over the course of a few hours.

Sometimes, the lawyers will speak directly without the clients and with or without the mediator. This can often assist with breaking negotiation log-jams.

Personal injury clients are often surprised to learn that the at-fault driver is not at the mediation. It is virtually always a representative of the insurance company who attends as the defence counsel's client. This is the person who attends because this is the person who will decide about how much, if anything will be paid.

Cases do not always settle at mediation, though more straightforward cases often do. However, even if a case does not settle, the initial discussions at mediation in most cases lay the groundwork for further discussions later on.

Brenda Hollingsworth and Richard Auger are lawyers representing accident victims in Ontario, Canada. Their law firm is Auger Hollingsworth, located in Ottawa. They are the authors of "An Injured Victim's Guide to Fair Compensation". To get free copy of this book, contact http://www.personalinjuryottawa.ca ; email info@personalinjuryottawa.ca or call 613.233.4529.
©2009 Carroll & Carroll, P.C., All Rights Reserved, Reproduced with Permission
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