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Can I Go Through Mediation for A Personal Injury Case?

Photo of conference chairs
Photo by Michael Fousert

You deserve full and fair compensation if you have been injured because of someone else’s fault or negligence. Mediation is a great option to explore in your personal injury case. It offers a way to settle lawsuits outside of the courtroom. That means you can get compensation for your injuries sooner—without the extra cost, time, and stress of a trial.

What is Personal Injury Mediation?

Mediation is a type of alternative dispute resolution. It can be used to resolve personal injury lawsuits again an at fault party as well as accident benefit disputes with your own insurance company. The goal of mediation is to achieve a resolution outside of court which reduces uncertainty and avoids the costs of a trial.

Mediation is less formal than court and everything that is said at mediation is confidential. If your case doesn’t settle at mediation, all negotiations and settlement offers are kept confidential. Because of this, people tend to speak more freely at mediation, which makes it easier to have open discussions and find creative solutions.

What Is the Mediator’s Role?

A mediator is a neutral third party, chosen by both parties to the lawsuit. Mediators do not have any binding authority and cannot decide personal injury cases or impose a settlement. The mediator’s role is to foster constructive discussions and help the parties find mutual agreement on key issues. A mediator does this by keeping the parties focussed on facts, issues, and interests and by pointing out the strengths and weaknesses in each party’s case. Throughout the mediation session, the mediator encourages the parties to keep negotiating and finding mutual ground.

What Happens at a Mediation?

Private mediations are usually held in an office setting or conference room. Before the mediation, the parties to the lawsuit exchange documents outlining their positions, called “mediation briefs.” You and your personal injury lawyer will attend the mediation. If the defendant’s insurer is involved in the case, the defendant (the at-fault driver if you were injured in a motor vehicle accident, for example) typically does not attend the mediation. Instead, a representative of the defendant’s insurance company and the insurance company’s lawyer attend on the defendant’s behalf. The insurance company’s representative comes to the mediation with authority to settle the case, and it is the insurance company that pays the settlement if an agreement is reached.

At the mediation, each party provides an opening statement to present their side of the case. Your personal injury lawyer will put your best case forward, explaining the severity of your injuries, how they are impacting your life and your ability to work, the law (if there are liability issues or other legal disputes to be resolved), and why your settlement offer is fair.

There is usually an opportunity to ask questions, and then the parties move into separate conference rooms where settlement offers are formulated and exchanged with the help of the mediator. You have the opportunity to speak in the open session if you are comfortable with doing so. However, most of your time at the mediation will be in conference with your personal injury lawyer while the back-and-forth negotiations are taking place. Many accident victims are comforted by this; mediation is not adversarial, and you will not be “put on the spot” or cross-examined at mediation as you would be at trial or Examinations for Discovery.

How Long Does Mediation Last?

Mediation sessions can last anywhere from a couple hours up to an entire day. The mediation session can end in one of a few outcomes: time runs out, one party or both parties choose to leave the mediation, or settlement is reached. If the parties reach a settlement, the injured party will sign a Full and Final Release which confirms the settlement .

What If Settlement Isn’t Reached at Mediation?

If settlement is not reached, your case will progress along the normal litigation process through pre-trial and if not settled at a pre-trial, the final step is a trial. Remember that everything said at a mediation is confidential; for example, if you concede an issue at the mediation to try to reach settlement, you are not bound by that position moving forward, and the other party can’t bring up what you said or use it against you at trial.

Because mediation encourages the parties to speak openly, it very often lays the groundwork for future negotiations. It’s open to the parties to schedule a second mediation session if they want the assistance of a mediator to work through outstanding issues.

Even if settlement isn’t reached at mediation, the lines of communication are in place to continue discussions after the mediation. In other words, a “failed” mediation is by no means a failure. In many cases, the parties continue negotiations through their lawyers after the mediation session has ended, and a settlement is reached without the need for a trial.

Get Advice on Mediation from A Top Personal Injury Lawyer in Oshawa

Our team of lawyers at Kelly Greenway Bruce understand the physical, emotional, and financial toll that serious personal injury can cause. We are here to guide you through the complicated claims process, including representing you at mediation.

Get in touch with us today for a free consultation and let our Oshawa personal injury lawyers use their expertise and experience to ensure you explore all settlement options and obtain your best possible recovery.

Kelly Greenway Bruce is dedicated to treating you with respect and compassion while using the law to advocate for fair compensation so you can rebuild your life with dignity. Contact us today to get started!


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